NOT FOR PUBLICATION FILED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