NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCIS GILBERTO OLIVA-ZEPEDA, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-72564 

Agency No. A094-386-413 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 26, 2021**

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges

Francis Gilberto Oliva-Zepeda, a native and citizen of Honduras, petitions 

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his 

appeal from an immigration judge’s (“IJ”) decision denying cancellation of 

removal and his application for asylum, withholding of removal, 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

MAR 29 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-72564 

Convention Against Torture (“CAT”). Our jurisdiction 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 Quevedo 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 dismiss in part and deny in part the 

petition for review. 

We lack jurisdiction to consider Oliva-Zepeda’s contentions regarding the 

agency’s discretionary denial of cancellation of removal. See 8 U.S.C. 

§ 1252(a)(2)(B)(i); Monroy v. Lynch, 821 F.3d 1175, 1177-78 (9th Cir. 2016) (this 

court lacks jurisdiction to review the agency’s weighing of the equities). 

Substantial evidence supports the agency’s determinations that Oliva-Zepeda 

failed to file his asylum application within the one-year time limit and did not

establish changed circumstances sufficient to excuse the untimely filing. See 8 

U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(4).

The agency did not err in concluding that Oliva-Zepeda’s proposed social 

groups were not cognizable. 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 share a common 

immutable characteristic, (2) defined with particularity, and (3) socially distinct 
3 19-72564 

within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 

237 (BIA 2014))). Substantial evidence supports the agency’s determination that 

Oliva-Zepeda did not otherwise establish that the harm he experienced or fears was 

or 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”). Oliva-Zepeda’s withholding of removal claim thus fails.

Substantial evidence supports the agency’s denial of CAT relief because 

Oliva-Zepeda failed to show it is more likely than not he would be tortured by or 

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

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

The temporary stay of removal remains in place until issuance of the 

mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise 

denied.

1

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

1 We lack jurisdiction to consider Oliva-Zepeda’s request for voluntary departure 

because he failed to exhaust this claim before the BIA. See Barron v. Ashcroft, 

358 F.3d 674, 678 (9th Cir. 2004).