NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FABIO ESTEBAN CRUZ-CHAVARRIA; No. 16-72986

FABIO ELIAZAR CRUZ-ALVARADO,

Agency Nos. A206-835-690 Petitioners, A206-835-691

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted January 8, 2020**

Before: CALLAHAN, NGUYEN, and HURWITZ, Circuit Judges.

Fabio Esteban Cruz-Chavarria and his son, natives and citizens of Honduras,

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

their appeal from an immigration judge’s decision denying their applications for

asylum, withholding of removal, and relief under the Convention Against Torture

* 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). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

questions of law, 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 petitioners 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))). Substantial evidence supports the agency’s

determination that petitioners otherwise failed to establish that they were or would

be persecuted 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”). Thus, petitioners’ asylum and withholding of removal

claims fail.

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

petitioners failed to show that it is more likely than not they 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).

We lack jurisdiction to consider the due process claim that petitioners raise

in their opening brief because they did not exhaust it before the agency. See Sola

v. Holder, 720 F.3d 1134, 1135-36 (9th Cir. 2013) (court lacks jurisdiction to

review claims not presented to the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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