Opinion
No. 17-71944
10-29-2018
LUIS ALBERTO CHAVEZ-FARIAS, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A077-158-480 MEMORANDUM On Petition for Review of an Order of the Immigration Judge Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Luis Alberto Chavez-Farias, a native and citizen of Mexico, petitions for review of an immigration judge's ("IJ") determination under 8 C.F.R. § 1208.31(a) that he did not have a reasonable fear of persecution or torture in Mexico and thus is not entitled to relief from his reinstated removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the IJ's factual findings. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We dismiss in part and deny in part the petition for review.
Chavez-Farias does not dispute his removability under 8 U.S.C. § 1182(a)(6)(A)(i). Thus, even if Chavez-Farias's conviction has been vacated, he has not established a gross miscarriage of justice so as to permit review of his collateral challenge to the underlying removal order. See Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008) (while a petitioner is generally prevented from collaterally attacking an underlying removal order on constitutional due process grounds, 8 U.S.C. § 1252(a)(2)(D) permits some measure of review if the petitioner can demonstrate a "gross miscarriage of justice" in the prior proceedings). We therefore lack jurisdiction to review Chavez-Farias's challenge to the removal order.
We also lack jurisdiction to consider Chavez-Farias's proposed social group that he raises for the first time in his opening brief. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust issues or claims in administrative proceedings below).
Substantial evidence supports the IJ's conclusion that Chavez-Farias failed to demonstrate a reasonable possibility of future persecution in Mexico on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (petitioner's "desire to be free from harassment by criminals motivated by theft or random violence . . . bears no nexus to a protected ground"); Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (harm based on personal retribution is not persecution on account of a protected ground).
Finally, substantial evidence also supports the IJ's conclusion that Chavez-Farias failed to demonstrate a reasonable possibility of torture by or with the consent or acquiescence of the government of Mexico. See Andrade-Garcia, 828 F.3d at 836-37.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.