Opinion
20-70114
08-23-2022
CANDELARIO GARCIA SILVESTRE, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted August 17, 2022
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A076-217-700
Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.
MEMORANDUM [*]
Candelario Garcia Silvestre, a native and citizen of Mexico, petitions 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 and protection under the Convention Against Torture ("CAT"). Our jurisdiction is governed by 8 U.S.C. § 1252. 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. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We deny in part and dismiss in part the petition for review.
The agency did not err in concluding that Garcia Silvestre 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))). Thus, Garcia Silvestre's withholding of removal claim fails.
The BIA did not err in its determination that Garcia Silvestre waived his CAT claim, see Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019) (no error in BIA's determination that applicant failed to challenge the IJ's denial of CAT relief), and we lack jurisdiction to consider Garcia Silvestre's contentions regarding the IJ's denial of his CAT claim because he did not raise them to 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). The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
[*] 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).