Opinion
17-71458
11-18-2022
ANTONIO HERNANDEZ-ANDRADE, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 15, 2022
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-572-524
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
MEMORANDUM [*]
Antonio Hernandez-Andrade, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question of 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 review for substantial evidence the agency's factual findings. Id. at 1241. We deny the petition for review.
Because Hernandez-Andrade does not challenge the agency's dispositive determination that he failed to establish changed or extraordinary circumstances to excuse his untimely asylum application, this issue is waived. See Rios v. Lynch, 807 F.3d 1123, 1125 n.1 (9th Cir. 2015) (issues not specifically raised and argued in a party's opening brief are waived). Thus, we deny the petition for review as to Hernandez-Andrade's asylum claim.
The BIA did not err in concluding that Hernandez-Andrade failed to establish membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (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))); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (proposed group "young men in El Salvador resisting gang violence" lacked particularity), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). We reject as unsupported by the record Hernandez-Andrade's contention that the BIA failed to conduct an adequate cognizability analysis. Thus, Hernandez-Andrade's withholding of removal claim fails.
Substantial evidence supports the agency's denial of CAT protection because Hernandez-Andrade failed to show it is more likely than not he will 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).
PETITION FOR REVIEW DENIED.
[*] 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).