NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANA GLORIBEL ANAYA DE NIETO; 

ANDRES ANAYA NIETO, 

Petitioners, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 16-71769 

Agency Nos. A206-720-731 

A206-720-732 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Ana Gloribel Anaya De Nieto and Andres Anaya Nieto, natives and citizens

of El Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) 

order dismissing their appeal from an immigration judge’s (“IJ”) decision denying 

their application for asylum, withholding of removal, and relief under the 

* 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

DEC 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-71769 

Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. 

§ 1252. We review factual findings for substantial evidence. Zehatye v. Gonzales, 

453 F.3d 1182, 1184-85 (9th Cir. 2006). We dismiss in part and deny in part the 

petition for review.

We lack jurisdiction to consider petitioners’ pattern and practice contentions 

and their newly proposed social groups. See Barron v. Ashcroft, 358 F.3d 674, 

677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented 

below).

Substantial evidence supports the determination that petitioners failed to 

establish they were or would be persecuted on account of a political opinion or 

their membership in a family-based social group. See Ayala v. Holder, 640 F.3d 

1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is 

established, an applicant must still show that “persecution was or will be on 

account of his membership in such group”); Barrios v. Holder, 581 F.3d 849, 856 

(9th Cir. 2009) (rejecting political opinion claim where petitioner did not present 

sufficient evidence of political or ideological opposition to the gang’s ideals or that 

the gang imputed a particular political belief to the petitioner); see also 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”). In their opening brief, petitioners do not 
3 16-71769 

challenge the BIA’s determination that a recruitment-based social group is not 

cognizable. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) 

(issues not specifically raised and argued in a party’s opening brief are waived). 

Thus, petitioners’ asylum and withholding of removal claims fail.

Substantial evidence also supports the BIA’s denial of CAT relief because 

Anaya De Nieto failed to show it is more likely than not she will be tortured by or 

with the consent or acquiescence of the government if returned to El Salvador. See 

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject as unsupported by the record petitioners’ contentions that the BIA 

and IJ violated their equal protection rights.

As stated in the court’s August 25, 2016 order, the temporary stay of 

removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.