Opinion
17-70504
10-20-2022
MANUEL VASQUEZ HERNANDEZ, AKA Manuel Antonio Vasquez-Hernandez, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 12, 2022
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-065-055
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM [*]
Manuel Vasquez Hernandez, 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"). Our jurisdiction is governed by 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, including determinations regarding social distinction. Id. at 1241. We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency's determination that Vasquez Hernandez failed to establish his proposed particular social group is socially distinct. See Conde Quevedo, 947 F.3d at 1243 (proposed particular social group not cognizable because of the absence of society-specific evidence of social distinction); see also Reyes v. Lynch, 842 F.3d 1125, 1138 (9th Cir. 2016) (record evidence did not compel the conclusion that Salvadoran society considers former gang members a distinct social group). Thus, the BIA did not err in concluding that Vasquez Hernandez failed to establish membership in a cognizable particular social group. See Reyes, 842 F.3d at 1131 (the group must be "'(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)). Therefore, Vasquez Hernandez's asylum and withholding of removal claims fail.
We do not consider Vasquez Hernandez's claim based on his proposed particular social group of "gang members who have found religion and started a family" because the BIA did not decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA), and the BIA did not err in declining to consider the claim where it was raised for the first time on appeal, see Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019).
Substantial evidence supports the agency's denial of CAT protection because Vasquez Hernandez 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).
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).