NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NELSON VAZQUEZ RENOJ, No. 20-71910 Petitioner, Agency No. A208-117-638 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 19, 2022** Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges. Nelson Vazquez Renoj, a native and citizen of Guatemala, petitions 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). Our jurisdiction is governed by 8 U.S.C. § 1252. 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, dismiss in part, and grant in part the petition for review, and we remand. In his opening brief, Vazquez Renoj does not challenge the BIA’s determination that he waived any challenge to the IJ’s dispositive nexus determination. 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). We lack jurisdiction to consider the particular social group that Vazquez Renoj raises for the first time in his opening brief. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented below). Thus, Vazquez Renoj’s asylum and withholding of removal claims fail. As to the denial of Vazquez Renoj’s CAT claim, the agency appears to have relied only on the determination that Vazquez Renoj failed to demonstrate that torture would be by or with the consent or acquiescence of a public official or other person acting in an official capacity. Substantial evidence does not support that determination because the record demonstrates that Vazquez Renoj was extorted and threatened with death by a police officer. See Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017) (“[T]he [CAT] regulation does not require that the 2 20-71910 public official be carrying out his official duties, so long as he is the actor or knowingly acquiesces in the acts.”). Thus, we grant the petition for review and remand Vazquez Renoj’s CAT claim to the BIA for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). Vazquez Renoj requests remand to apply for post-conclusion voluntary departure. Although the claim is unexhausted, the BIA would not have had the benefit of our decision in Posos-Sanchez v. Garland, 3 F.4th 1176, 1185 (9th Cir. 2021), holding that “a noncitizen builds up physical-presence time under [8 U.S.C.] § 1229c(b)(1)(A) from the moment he enters the United …
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