NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE FUNES-CARRILLO, No. 20-71056
Petitioner, Agency No. A076-666-305
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Jorge Funes-Carrillo, a native and citizen of Guatemala, 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 withholding of
removal and relief under the Convention Against Torture (“CAT”). Our
*
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).
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. Id. at 1241. We
deny in part and dismiss in part the petition for review.
The BIA did not err in declining to consider Funes-Carrillo’s arguments
regarding a family-based particular social group that were raised for the first time
to the BIA. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (BIA did
not err in declining to consider a particular social group raised for the first time on
appeal); see also Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 191 (BIA 2018)
(an applicant “has the burden to clearly indicate the exact delineation of any
particular social group(s) to which she claims to belong” (internal quotation marks
and citation omitted)).
The BIA did not err in concluding that Funes-Carrillo failed to establish
membership in a cognizable particular social group based on being victimized by
gangs. 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
2 20-71056
within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,
237 (BIA 2014))); see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir.
2020) (“[A] particular social group must exist independently of the harm
asserted . . . .”).
To the extent Funes-Carrillo raises a new particular social group in his
opening brief, we lack jurisdiction to consider it. 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, Funes-Carrillo’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Funes-Carrillo 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 Guatemala. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until issuance of the
mandate. The motion for a stay of removal is otherwise denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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