NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS MIGUEL HERNANDEZ- No. 20-70867
VELAZQUEZ, AKA Enrique Nava-
Sanchez, Agency No. A088-711-170
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Luis Miguel Hernandez-Velazquez, 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 decision denying his applications for
*
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).
cancellation of removal, asylum, withholding of removal, and relief 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. Id. at 1241. We dismiss in part and deny in part the
petition for review.
We lack jurisdiction to review the agency’s discretionary determination that
Hernandez-Velazquez did not show exceptional and extremely unusual hardship to
a qualifying relative for purposes of cancellation of removal. See 8 U.S.C.
§ 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
The petition does not raise a colorable legal or constitutional claim over which we
retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Martinez-Rosas, 424 F.3d at
930.
The record does not compel the conclusion that Hernandez-Velazquez
established changed or extraordinary circumstances to excuse his untimely asylum
application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5). Thus,
Hernandez-Velazquez’s asylum claim fails.
The agency did not err in concluding that Hernandez-Velazquez did not
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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 that
Hernandez-Velazquez raises in the first instance a particular social group based, in
part, on young age and previous residence in the United States, 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). We do not reach
Hernandez-Velazquez’s contentions regarding whether the government is unable
or unwilling to protect him or that he experienced harm rising to the level of
persecution. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)
(review limited to the grounds relied on by the BIA). Thus, Hernandez-
Velazquez’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Hernandez-Velazquez 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 Mexico.
See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until issuance of the
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mandate.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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