NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 14 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ANTONIO MAYEN-GAMEZ, No. 21-62

Petitioner, Agency No. A098-486-289

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Department of Homeland Security

Submitted March 08, 2023** San Francisco, California

Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE,*** District Judge.

Jose Antonio Mayen-Gamez, a native and citizen of Guatemala, petitions

for review of an immigration judge’s (IJ) decision concurring in the negative

reasonable-fear determination of an asylum officer (AO).

* 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). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. In 2017, the U.S. Department of Homeland Security reinstated

Mayen-Gamez’s 2004 order of removal. Because Mayen-Gamez expressed a fear

of returning to Guatemala, he was referred to an AO for a reasonable-fear

determination. The AO concluded that there was no qualifying reasonable fear,

and Mayen-Gamez sought review by the IJ, who concurred.

We have jurisdiction under 8 U.S.C. § 1252 because the IJ’s agreement

with the negative reasonable-fear determination rendered Mayen-Gamez’s

reinstatement order final. See Andrade-Garcia v. Lynch, 828 F.3d 829, 835–36

(9th Cir. 2016). We review factual findings underlying an IJ’s reasonable-fear

determination for substantial evidence and must uphold such determinations

“unless, based on the evidence, any reasonable adjudicator would be compelled

to conclude to the contrary.” Id. at 831, 833 (internal quotation marks and citation

omitted). We review questions of law de novo. See Arteaga v. Mukasey, 511

F.3d 940, 944 (9th Cir. 2007). We deny the petition in part and dismiss the

petition in part.

1. Concurring in the AO’s reasonable-fear determination, the IJ

appropriately found that Mayen-Gamez had not established a reasonable

possibility that he would be persecuted on account of a protected ground or that

he would be tortured in Guatemala.

2 21-62 First, the IJ reasonably concluded that Mayen-Gamez did not suffer past

persecution.1 Mayen-Gamez had cows stolen four times between 2004 and 2017.

But he was never physically harmed during the thefts and did not testify to

experiencing any other harm in Guatemala. Though these incidents are

unfortunate, they do not rise to the level of persecution—an “extreme concept

that does not include every sort of treatment our society regards as offensive.”

Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (quoting Nagoulko v.

INS, 333 F.3d 1012, 1016 (9th Cir. 2003)).

Mayen-Gamez also fails to identify evidence demonstrating that there is a

reasonable possibility that he will suffer future persecution on account of a

protected ground. At most, Mayen-Gamez’s testimony describes a fear of

random violence or harm motivated by others’ desire to steal from him. Yet 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.” Zetino

v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).

Second, substantial evidence supports the IJ’s negative determination as to

the reasonable fear of torture. The label “torture” is “reserved for extreme cruel

and inhuman treatment that results in severe pain or suffering.” Tzompantzi-

1 We would affirm the determination that Mayen-Gamez did not suffer past persecution and is not likely to suffer future persecution under any standard of review. Therefore, we need not address whether substantial evidence or a less deferential standard should apply. See Fon v. Garland, 34 F.4th 810, 813 & n.1 (9th Cir. 2022).

3 21-62 Salazar v. Garland, 32 F.4th 696, 706 (9th Cir. 2022). Mayen-Gamez has never

been tortured. Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005) (“Past

torture is the first factor we consider in evaluating the likelihood of future torture

. . . .”). And nothing in the record otherwise compels the conclusion that there is

a reasonable likelihood that he will be tortured in the future or that torture would

occur by or with the consent or acquiescence of the government. See Andrade-

Garcia, 828 F.3d at 836–37.

2. Mayen-Gamez also contends that his initial removal proceedings should

be reopened and terminated because he was never served with a compliant Notice

to Appear. He further argues that, for the same reasons, his prior in absentia order

of removal should be rescinded. Because Mayen-Gamez did not raise this

argument before the agency, we lack jurisdiction to review it. See Sola v. Holder,

720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam); 8 U.S.C. § 1252(d)(1).

PETITION DENIED in part; DISMISSED in part.

4 21-62