NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JONATAN GABRIEL FERNANDEZ- No. 15-70634 CATALAN, AKA Francisco Rivera- Mendez, Agency No. A205-604-356 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 24, 2021** Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges. Jonatan Gabriel Fernandez-Catalan, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, * 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). withholding of removal, and protection under the Convention Against Torture (“CAT”). 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 and dismiss in part the petition for review. We lack jurisdiction to consider the newly argued contentions in Fernandez- Catalan’s brief regarding asylum and withholding of removal because he did not raise them before the agency. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). We exercise our discretion to review the agency’s conclusion that Fernandez-Catalan failed to establish that he would be persecuted on account of a protected ground, notwithstanding his failure to brief the issue adequately. Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004). Substantial evidence supports the agency’s conclusion. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“[A]n 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, Fernandez-Catalan’s asylum and withholding of removal claims fail. Substantial evidence supports the agency’s denial of CAT protection because Fernandez-Catalan failed to show that it is more likely than not he will be 2 15-70634 tortured by or with the consent or acquiescence of the government if returned to Guatemala. Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). The temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 15-70634 15-70634 Court of Appeals for the Ninth Circuit ca9 9th Cir. Jonatan Fernandez-Catalan v. Merrick Garland 28 June 2021 Agency Unpublished 03a897362be1bed4955b8eb847ca09889d6b8b43
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