NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ELDER GOMEZ

- LOPEZ,

Petitioner,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 16

- 73395 Agency No. A087

- 455

- 416

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 4, 2020 * *
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges. Elder Gomez

- Lopez , a native and citizen of Guatemala , petitions for review of the Board of I mmigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”)

. Our jurisdiction is

* This disposition is not appropriate for publication and is not precedent except as provided b y 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). Gomez

- Lopez ’s request for oral argument, set forth in his opening brief, is denied. 

# FILED

FEB 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

governed by 8 U.S.C. § 1252. We r eview de novo questions of law, Cerezo v. Mukasey , 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s interpretation of the governing statutes and regulations, Simeonov v. Ashcroft , 37 1 F.3d 532, 535 (9th Cir. 200 4). We review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales , 453 F.3d 1182, 1184

- 85 (9th Cir. 2006). We deny in part and dismiss in part the petition for review. The agency did not err in finding that Gomez

- Lopez did not establish membership in a cognizable social group. See Reyes v. Lynch , 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group, “[t]he applicant must ‘establish that the group is (1) composed of members who

s hare 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. Dec. 227, 237 (BIA 2014)) ); see also Barrios v. Holder , 581 F.3d 849,
854

- 55 (9th Cir . 2009) (holding young Guatemalan men who resist gang recruitment is not a particular social group)

. To the extent Gomez

- Lopez raises a

new proposed social group based on characteristics that he did not raise before the agency, we lack jurisdiction to con sider it. See Barron v. Ashcroft , 358 F.3d 674,
677

- 78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Further, substantial evidence supports the agency’s determination that3

Gomez

- Lopez otherwise failed to establi sh the harm he fears would be on account of a protected ground. 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, Gomez

- Lopez’s withholding of removal claim fail s
. Substantial evidence also supports the agency’s denial of CAT relief because
Gomez

- Lopez failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Guatemala

. See Aden v. Holder , 589 F.3d 1040, 1047 (9th Cir. 2009) ; see also Garcia

- Milian v.
Holder , 755 F.3d 1026, 1033

- 35 (9th Cir. 2014) (concluding that petitio ner did not establish the necessary “state action” for CAT relief)

. PETITION FOR REVIEW DENIED in part; DISMISSED in part
.