NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ALBERTO FAJARDO,

Petitioner,

v. ROBERT M. WILKINSON, Acting Attorney General ,

Respondent. No. 15

- 71650 Agency No. A205

- 720

- 071

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 16 , 202 1 * * Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges. Luis Alberto Fajardo , a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

FEB 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 15

- 71650

Our jurisd iction is governed by 8 U.S.C. § 1252. We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIA’s interpretation of the governing statutes and regulations. Conde Queve do v. Barr , 947 F.3d 1238, 1241

- 42 (9th Cir. 2020). We review for substantial evidence the agency’s factual findings. Id . at 1241. We deny in part and dismiss in part the petition for review

. Fajardo does not challenge the BIA’s dispositive determination that his asylum application is time

- barred. See Lopez

- Vasquez v. Holder , 706 F.3d 1072,
1079

- 80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are waived). Thus, we deny the petition for review as to F ajardo’s asylum claim.
The BIA did not err in conclu ding Fajardo failed to establish membership in a cognizable particular social group. See Reyes v. Lynch , 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social gro up, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’” (quoting Matter of M

- E

- V

- G

- , 26 I. & N.
D ec. 227, 237 (BIA 2014)))

. To the extent Fajardo raises a new particular social
group in his opening brief , w e lack jurisdiction to consider th e claim because he
failed to raise it to the BIA

. See Barron v. Ashcroft , 358 F.3d 674, 677

- 78 (9th Cir.3 15

- 71650

2004) (court lacks jurisdiction to review claims not presented to the agency). Substantial evidence supports the BIA’s determination that Fajardo failed to
establish that the harm he suffered or fears in Guatemala was or would be on account of a protected groun d. See Zetino v. Holder , 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, Fajardo ’s withholding of removal claim fail s
. Fajardo does not raise, and has therefore waived, any challenge to the BIA’s
determination that he waived review of the IJ’s denial of CAT relief

. See Lopez

Vasquez , 706 F.3d at 1079

- 80. We lack jurisdiction to consider Fajardo ’s
contention as to the merits of his CAT claim because he did not raise th is
contention to the BIA. See Barron , 358 F.3d at 677

- 78

. Thus, Fajardo ’s CAT
claim fails.
We do not consider Fajardo’s contention as to his eligibility for cancellation of removal or a waiver of inadmissibility under INA section 212(h) because the
BIA did not reach th at issue , see Santiago

- Rodriguez v. Holder , 657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA), and Fajardo

//4 15

- 71650

does not contend the BIA erred in finding that claim was not properly before it, see Corro

- Barragan v. Holder , 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in waiver). PETITION FOR REVIEW DENIED in part; DISMISSED in part.