Jose Lopez Salazar v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LOPEZ SALAZAR, No. 20-71744
Petitioner, Agency No. A087-990-909
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 7, 2022**
San Francisco, California
Before: S.R. THOMAS and McKEOWN, Circuit Judges, and ORRICK,*** District
Judge.
Jose Lopez Salazar, a native and citizen of Guatemala, petitions for review
of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal
*
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 William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
from the Immigration Judge’s (“IJ”) order denying his application for withholding
of removal and deeming his application for relief under the Convention Against
Torture withdrawn. We review the agency’s “legal conclusions de novo and its
factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850
F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). We have
jurisdiction under 8 U.S.C. § 1252 and deny in part and dismiss in part the petition.
Lopez Salazar’s challenge to the agency’s jurisdiction is foreclosed by our
decisions in Aguilar Fermin v. Barr, 958 F.3d 887, 893–95 (9th Cir.), cert. denied,
141 S. Ct. 664 (2020), and Karingithi v. Whitaker, 913 F.3d 1158, 1160–62
(9th Cir. 2019). Lopez Salazar’s briefing appears to argue that we should conclude
that Aguilar Fermin and Karingithi were wrongly decided, but we are bound by
our prior caselaw absent extraordinary circumstances not present here. Miller v.
Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
Although Lopez Salazar adequately exhausted the issue, he is mistaken in
claiming that the agency failed to sufficiently consider whether his proposed
particular social group of “repatriated Guatemalan males who oppose gang
violence” satisfied the criteria identified in Matter of M–E–V–G–, 26 I. & N. Dec.
227 (BIA 2014). The IJ concluded that this proposed group did not satisfy the M–
E–V–G– criteria, finding the group “lack[ed] immutable status as well as
particularity and social distinction.” The BIA adopted and affirmed the IJ’s
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decision citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), meaning
that it was not required to conduct its own individualized analysis of the proposed
group. “Our caselaw establishes that where the BIA cites its decision in Burbano
and does not express disagreement with any part of the IJ’s decision, the BIA
adopts the IJ’s decision in its entirety.” Abebe v. Gonzales, 432 F.3d 1037, 1040
(9th Cir. 2005). The agency adequately addressed this argument, and Lopez
Salazar has not argued that the agency’s conclusion was unsupported by substantial
evidence, waiving any such challenge. Bingxu Jin v. Holder, 748 F.3d 959, 964
n.2 (9th Cir. 2014).
Lopez Salazar’s remaining arguments are unexhausted, and therefore
unreviewable. See Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014)
(stating that issue exhaustion is a jurisdictional requirement); Sola v. Holder, 720
F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam) (declining to address due process
argument not raised below, which could have been addressed by the agency).
PETITION DENIED IN PART AND DISMISSED IN PART.
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