NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 10 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS FERNANDO PINEDA- No. 23-4361 RUANO; MALFI LOPEZ- Agency Nos.

HERNANDEZ; K. P.-L., A220-688-933

A220-490-957

Petitioners,

A220-490-958

v.

MEMORANDUM*

PAMELA J. BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 6, 2025** Phoenix, Arizona

Before: HAWKINS, BYBEE, and BADE, Circuit Judges.

Petitioner Luis Fernando Pineda-Ruano, his wife Malfi, and their minor child

(collectively, Petitioners) petition for review of a decision of the Board of

* 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). Immigration Appeals (BIA) affirming, without an opinion, an immigration judge’s

(IJ) denial of their applications for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). When, as here, the BIA affirms

without an opinion, we review the IJ’s decision as the final agency decision. Falcon-

Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition.

1. Petitioners challenge the agency’s denial of their application for

asylum and statutory withholding of removal. Before the immigration court, the

unrepresented Petitioners did not specifically allege harm based on race, religion,

nationality, political opinion, or membership in a particular social group. Based on

the evidence and testimony, however, the IJ determined that Petitioners appeared

to allege past and future persecution based on their membership in the following

particular social groups: (1) “Guatemalans with jobs,” (2) “Guatemalans resisting

gang extortion,” and (3) “Guatemalan women.” See Jacinto v. INS, 208 F.3d 725,

734 (9th Cir. 2000) (holding that “immigration judges are obligated to fully

develop the record in those circumstances where applicants appear without

counsel”).

The IJ determined that Petitioners were victims of criminal activity but that

they failed to show a nexus between demands from extortionists for money and

their membership in the particular social groups they appeared to allege.

2 23-4361 Substantial evidence supports the denial of asylum and withholding of removal

based on the agency’s finding that Petitioners failed to establish any nexus between

past harm or feared future harm and their apparent proposed particular social

groups.1 See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’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.”). As the agency

concluded, the lack of a nexus to a protected ground is fatal to Petitioners’ claims

for asylum and statutory withholding of removal. See Riera-Riera v. Lynch, 841

F.3d 1077, 1081 (9th Cir. 2016); Barajas-Romero v. Lynch, 846 F.3d 351, 357–60

(9th Cir. 2017) (explaining the motive standards applicable to asylum and

withholding of removal). Therefore, we decline to consider Petitioners’ other

arguments regarding the denial of asylum and withholding of removal. See INS v.

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are

not required to make findings on issues the decision of which is unnecessary to the

results they reach.”).

2. Petitioners failed to exhaust their claims for asylum and withholding

of removal that are based on two newly proposed particular social groups. They

also failed to exhaust their argument that the IJ failed to act as a neutral arbiter in

1 Pineda-Ruano testified that he was extorted by a gang and threatened and beaten when he did not pay.

3 23-4361 violation of their due process rights. In their petition for review, Petitioners argue

for the first time that they are entitled to asylum and withholding of removal based

on the proposed particular social groups “Guatemalans Who Cannot Pay Gang

Extortion Demands,” and “Guatemalans Who Have Reported Criminal Activity To

The Police.” They also argue for the first time that the IJ displayed judicial bias in

violation of their due process rights. Petitioners did not present either of these

arguments to the agency.

Under 8 U.S.C. § 1252(d)(1), a petitioner is required to exhaust arguments,

including some due process claims, to the agency. See Sola v. Holder, 720 F.3d

1134, 1136 (9th Cir. 2013) (“Challenges to procedural errors correctable by the

administrative tribunal, must be exhausted before we undertake review.”)

(alterations and quotation omitted). Exhaustion, however, is a claims-processing

rule that can be waived. Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023).

Because Petitioners did not present any arguments based on the newly proposed

particular social groups or their due process rights to the agency and because the

government did not waive the exhaustion requirement, we decline to consider these

arguments. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023); cf.

Amaya v. Garland, 15 F.4th 976, 986 (9th Cir. 2021) (dismissing petition for

review when the petitioner failed to exhaust his due process claim based on the IJ’s

alleged bias to BIA).

4 23-4361 3. Petitioners challenge the agency’s denial of their application for CAT

protection. Because Petitioners did not meaningfully challenge the denial of CAT

protection in their appeal to the BIA, they waived review of their arguments

pertaining to that claim. See 8 U.S.C. § 1252(d)(1) (requiring the exhaustion of

administrative remedies); Santos-Zacaria, 598 U.S. at 419 (holding that

§ 1252(d)(1) is a non-jurisdictional, claim-processing rule). Furthermore, even if

Petitioners’ arguments were not waived, substantial evidence supports the denial of

CAT protection because Pineda-Ruano fails to show that it is more likely than not

he would be tortured by or with the consent or acquiescence of the government

upon return to Guatemala. Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th

Cir. 2020). The record, including Pineda-Ruano’s testimony, reflects that the

Guatemalan police investigated Pineda-Ruano’s complaint that he was attacked

and beaten by a gang. Pineda-Ruano’s unsupported assertion that the police were

connected to the gang is insufficient to compel the conclusion that the government

would acquiesce in his torture. Singh v. Garland, 97 F.4th 597, 602–03, 609 (9th

Cir. 2024) (stating the substantial evidence standard and CAT requirements).

The temporary stay of removal remains in place until the mandate issues.

The motion for a stay of removal is otherwise denied.

PETITION DENIED.

5 23-4361