Carlos Baires v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ANTONIO BAIRES, No. 16-73039
Petitioner, Agency No. A092-370-994
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Carlos Antonio Baires, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, including determinations regarding social
distinction. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
review de novo questions of law, including whether a particular social group is
cognizable, except to the extent that deference is owed to the BIA’s interpretation
of the governing statutes and regulations. Id. We dismiss in part and deny in part
the petition for review.
In his opening brief, Baires does not contend the BIA erred in its dispositive
conclusion that he waived any challenge to the IJ’s denial of his asylum application
as untimely. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir.
2013) (issues not specifically raised and argued in a party’s opening brief are
waived). We lack jurisdiction to consider Baires’s contentions as to the merits of
his asylum claim because he did not raise them before the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review
claims not presented to the agency). Thus, Baires’s asylum claim fails.
Substantial evidence supports the agency’s determination that Baires failed
to establish his proposed social group is socially distinct. See Conde Quevedo, 947
F.3d at 1243 (substantial evidence supported the agency’s determination that
petitioner’s proposed social group was not cognizable because of the absence of
society-specific evidence of social distinction). Thus, the BIA did not err in
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concluding that Baires did not establish membership in a cognizable particular
social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to
demonstrate membership in a particular social 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))). To the extent Baires raises a new proposed social group in his
opening brief, we lack jurisdiction to consider it. See Barron, 358 F.3d at 677-78.
Thus, Baires’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Baires failed to show it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if returned to El Salvador. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We reject as unsupported by the
record Baires’s contention that the BIA erred in its CAT analysis.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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