CARIAS-BACA V. GARLAND, No. 21-140 (9th Cir. 2023)

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FILED NOT FOR PUBLICATION NOV 21 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT SANTOS ISRAEL CARIAS-BACA, U.S. COURT OF APPEALS No. 21-140 Agency No. A201-747-406 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Immigration Judge Submitted November 14, 2023** Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges. Santos Israel Carias-Baca, a native and citizen of Honduras, 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 Honduras and is not entitled to relief from his reinstated removal order. We have * 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). jurisdiction under 8 U.S.C. § 1252. We review an IJ’s negative reasonable fear determination for substantial evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We deny the petition for review. Substantial evidence supports the agency’s determination that Carias-Baca failed to show a reasonable possibility that the harm he suffered or fears would be 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”). Carias-Baca’s contentions regarding his proposed particular social group are not properly before the court because he failed to raise the particular social group before the IJ. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing rule). Substantial evidence supports the agency’s determination that Carias-Baca failed to show a reasonable possibility of torture by or with the consent or acquiescence of the government if returned to Honduras. See Andrade-Garcia, 828 F.3d at 836-37 (petitioner failed to demonstrate government acquiescence sufficient to establish a reasonable possibility of future torture). We do not consider the materials Carias-Baca references in his opening brief 2 21-140 that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 96364 (9th Cir. 1996) (en banc). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED. 3 21-140

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