                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT

                                     No. 18-2353

EXPRESS HOMEBUYERS USA, LLC,

                   Plaintiff - Appellant,

             and

LAWRENCE BRADFORD CHANDLER, III,

                   Counter Defendant - Appellant,

             v.

WBH MARKETING, INC.,

                   Defendant - Appellee,

             and

JEREMY BRANDT,

                   Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:17-cv-00736-TSE-IDD)

Submitted: October 21, 2019                             Decided: November 15, 2019

Before AGEE and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.

Ugo Colella, Washington, D.C., John J. Zefutie, Jr., CULHANE MEADOWS PLLC,
Princeton, New Jersey, for Appellants. Damon W.D. Wright, Mitchell Y. Mirviss,
VENABLE LLP, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

                                            2
PER CURIAM:

       In this trademark case, Express Homebuyers USA, LLC (“Express”), appeals the

district court’s order denying its motion for costs and attorney’s fees under 15 U.S.C.

§ 1117(a) (2012). 1 Express, which commenced this action against WBH Marketing, Inc.

(“WBH”), prevailed at summary judgment, securing both a declaration that two of WBH’s

registered trademarks were subject to cancellation and a judgment denying relief on

WBH’s several counterclaims. Express then filed its § 1117(a) motion, arguing that

WBH’s defenses, counterclaims, and reconsideration motion were frivolous or objectively

unreasonable, and that considerations of compensation and deterrence supported an award

of legal fees. Marching through each of Express’ arguments, the court agreed that some of

WBH’s positions had been unreasonable, but ultimately concluded that the action as a

whole was not so exceptional that attorney’s fees were warranted. Finding no abuse of

discretion, we affirm the district court’s order.

       The Lanham Act provides that, “in exceptional [trademark] cases,” the district court

“may award reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). In this

context, “exceptional” means, among other things, that “there is an unusual discrepancy in

the merits of the positions taken by the parties, based on the non-prevailing party’s position

as either frivolous or objectively unreasonable,” or that “there is otherwise the need in

particular circumstances to advance considerations of compensation and deterrence.”

       1
        For ease of reference, we refer only to Express when discussing the § 1117(a)
motion jointly filed by Express and its CEO, Lawrence Bradford Chandler, III.

                                               3
Verisign, Inc. v. XYZ.COM LLC, 891 F.3d 481, 483-84 (4th Cir. 2018) (internal quotation

marks omitted). “[A] prevailing party need only prove that a case is exceptional under the

Lanham Act by a preponderance of the evidence.” Id. at 484. In deciding whether the

prevailing party has met its burden, the district court must consider “the totality of the

circumstances.” Id. at 483 (internal quotation marks omitted). On appeal, we review for

abuse of discretion a decision to deny a motion for attorney’s fees under the Lanham Act,

id. at 484, but only for clear error “the district court’s underlying finding as to whether the

case is exceptional,” Newport News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d

423, 441 (4th Cir. 2011) (internal quotation marks omitted).

       At summary judgment, Express argued, and the district court agreed, that WBH’s

marks were generic and, thus, not entitled to trademark protection. Subsequently, in its

§ 1117(a) motion, Express claimed that WBH’s defense of its marks was frivolous or

objectively unreasonable, citing the dearth of evidence supporting WBH’s position that the

marks were not, in fact, generic. The court declined to accept this characterization of

WBH’s defense, reasoning that the United States Patent and Trademark Office’s decision

to issue trademark registrations to WBH weighed strongly against an exceptional case

finding. See Am. Online, Inc. v. AT&T Corp., 243 F.3d 812, 816 (4th Cir. 2001) (holding

that trademark “registrant obtains prima facie evidence that its mark is not generic in the

eyes of the relevant public, and that its mark is not merely descriptive, but at a minimum

is descriptive and has obtained secondary meaning” (citation, emphasis, and internal

quotation marks omitted)).

                                              4
          On appeal, Express contends that, contrary to the district court’s holding, a

trademark owner cannot evade an exceptional case finding solely by relying on its validly

registered trademark. However, based on our review of the court’s analysis, we conclude

that the court regarded the registrations as highly probative, but not dispositive. Thus, we

reject Express’ assertion that the district court created a per se rule that a party’s defense

of its registered trademark always is objectively reasonable, even if the mark later proves

to be generic.

          Next, Express argues that four of WBH’s counterclaims were objectively

unreasonable, insisting that they were doomed to fail because WBH lacked evidence to

establish indispensable elements of each claim. As to two of these counterclaims—

concerning allegedly defamatory statements made by Express—the district court agreed

that the statements at issue were nonactionable bluster or opinion, yet the court indicated

that a reasonable litigant might nevertheless assert that the comments were factual in

nature.     Contrary to Express’ argument, we discern no inconsistency in the court’s

conclusion that a litigant might reasonably press a claim that is subsequently found to lack

merit.

          As to the other two counterclaims, the district court determined that, even if these

claims were objectively unreasonable because WBH could not prove damages, this

shortcoming did not render the entire case exceptional.           Similarly, while the court

acknowledged that WBH advanced clearly meritless arguments regarding the burden of

proof for establishing genericness and the admissibility of certain evidence, it determined

that such isolated missteps did not transform this case from ordinary to exceptional. Given

                                               5
the court’s charge to view the litigation in toto, we discern no impropriety in its conclusion

that a handful of unreasonable arguments failed to convert the entire case into an

unreasonable or exceptional one. 2

       Finally, Express contests the district court’s determination that considerations of

deterrence and compensation did not support an exceptional case finding. In our view,

however, the court reasonably concluded that the general principle of promoting trademark

enforcement outweighed any benefits that might derive from penalizing WBH for its

unreasonable litigation positions.       Ultimately, the court developed a “superior

understanding of the litigation” through its resolution of the parties’ claims, Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983), and, based on our review of the record, we cannot

say that the court abused its discretion in denying Express’ motion for attorney’s fees.

       Accordingly, we affirm the district court’s order. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                                AFFIRMED

       2
        While Express complains that the district court considered “the action as a whole,”
Retail Servs., Inc. v. Freebies Publ’g, 364 F.3d 535, 551 (4th Cir. 2004), abrogated on
other grounds by Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545
(2014), rather than “the totality of the circumstances,” Verisign, 891 F.3d at 483 (internal
quotation marks omitted), we discern no material difference between these standards, both
of which require a broad, holistic approach.

                                              6


                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        APR 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JOSE LUIS DOMINGUEZ RODRIGUEZ,                  No.    17-72434
AKA Jose Luis Dominguez,
                                                Agency No. A205-313-318
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted April 7, 2020**

Before:      TASHIMA, BYBEE, and WATFORD, Circuit Judges.

      Jose Luis Dominguez Rodriguez, a native and citizen of Mexico, petitions

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

his appeal from an immigration judge’s (“IJ”) decision denying his applications for

withholding of removal, relief under the Convention Against Torture (“CAT”), and

      *
             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).
cancellation of removal. 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.

      In his opening brief, Dominguez Rodriguez does not challenge the BIA’s

determination that he waived any challenge to the IJ’s denial of CAT relief. See

Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not

specifically raised and argued in a party’s opening brief are waived). He also does

not challenge the agency’s denial of cancellation of removal. See id. Thus, we

deny the petition for review as to relief under CAT and cancellation of removal.

      The agency did not err in finding Dominguez Rodriguez failed to establish

membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,

1131 (9th Cir. 2016) (in order to demonstrate membership in a particular 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))); see also Barbosa v. Barr, 926 F.3d 1053,

                                          2                                   17-72434
1059-60 (9th Cir. 2019) (finding that individuals returning to Mexico from the

United States who are believed to be wealthy does not constitute a particular social

group). To the extent Dominguez Rodriguez raises a new proposed social group in

his opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358

F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not

presented to the agency).

      Substantial evidence supports the BIA’s determination that Dominguez

Rodriguez otherwise failed to establish that the harm he fears in Mexico 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”). The BIA did not abuse its discretion in declining to remand

under Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017). See Movsisian v.

Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (BIA’s denial of a motion to remand

reviewed for abuse of discretion); see also Barajas-Romero, 846 F.3d at 360

(discussing Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) having drawn no

distinction between the “one central reason” and “a reason” standards where there

was no nexus at all to a protected ground).

      Thus, Dominguez Rodriguez’s withholding of removal claim fails.

      Dominguez Rodriguez’s requests, raised in his opening brief, to remand for

                                          3                                   17-72434
the production of further evidence and to grant withholding of removal are denied.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.

                                        4                                   17-72434


149 F.3d 1189
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Shaun THOMAS, Appellant.
No. 97-2881NI.
United States Court of Appeals, Eighth Circuit.
April 23, 1998

On Appeal from the United States District Court for the Northern District of Iowa.
Before RICHARD S. ARNOLD,1 Chief Judge, LAY and LOKEN, Circuit Judges.
RICHARD S. ARNOLD, Chief Judge.

1
This is an appeal from a sentence imposed by the District Court.2  The appeal draws in question the propriety of a sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) (possession of a dangerous weapon).  The findings of the District Court on that point are not clearly erroneous, and we therefore affirm.  No sufficient purpose would be served by a fuller opinion.

2
Affirmed.

1
 The Hon.  Richard S. Arnold stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998.  He has been succeeded by the Hon.  Pasco M. Bowman II

2
 The Hon.  Michael J. Melloy, Chief Judge, United States District Court for the Northern District of Iowa