NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO NESTA-NAJAR, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 16-73610 

Agency No. A099-505-030 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Pedro Nesta-Najar, a native and citizen of Mexico, petitions for review of 

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an 

immigration judge’s decision denying his application for asylum, withholding of 

removal, and relief under the Convention Against Torture (“CAT”). Our 

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, 

* 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 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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, 371 F.3d 532, 535 (9th Cir. 2004). We review 

for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder, 

755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the 

petition for review.

The BIA did not err in finding that Nesta-Najar 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 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 within the society in question’” (quoting 

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also DelgadoOrtiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding “returning 

Mexicans from the United States” did not constitute a particular social group). We 

lack jurisdiction to consider Nesta-Najar’s contentions as to proposed social groups 

that he did not raise to the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 

(9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the 

agency). Thus, Nesta-Najar’s asylum and withholding of removal claims fail.

In light of this disposition, we need not reach Nesta-Najar’s contentions 
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regarding the timeliness of his asylum application. See Simeonov v. Ashcroft, 371 

F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues 

unnecessary to the results they reach).

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

Nesta-Najar failed to show that it is more likely than not he would be tortured by 

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

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Delgado-Ortiz, 600 

F.3d at 1152 (generalized evidence of violence and crime in petitioner’s home 

country was insufficient to meet standard for CAT relief).

We do not consider new evidence that was not part of the record before the 

agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.