NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO YOVANY CORNEJO-ARIAS, No. 20-73572
Petitioner, Agency No. A206-062-351
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2022**
San Francisco, California
Before: CLIFTON and M. SMITH, Circuit Judges, and REISS,*** District Judge.
Ernesto Yovany Cornejo-Arias seeks review of the Board of Immigration
Appeals’ (BIA) order denying his applications for withholding of removal and
*
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).
***
The Honorable Christina Reiss, United States District Judge for the
District of Vermont, sitting by designation.
deferral of removal pursuant to the Convention Against Torture. We have
jurisdiction over most of the petition for review pursuant to 8 U.S.C. § 1252. The
BIA adopted the immigration judge’s decision and cited Matter of Burbano, 20 I. &
N. Dec. 872 (BIA 1994), so we review the immigration judge’s decision as if it were
the BIA’s. Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc).
We lack jurisdiction to review Cornejo-Arias’s argument that the agency
lacked jurisdiction over him due to a defective notice to appear because he did not
exhaust this issue before the IJ or the BIA. Ruiz-Colmenares v. Garland, 25 F.4th
742, 748 (9th Cir. 2022). Cornejo-Arias argues that he was not required to exhaust
this claim because the Supreme Court did not decide Pereira v. Sessions, 138 S. Ct.
2105 (2018) until after the parties’ briefing before the BIA was completed. That is
incorrect. The notice to appear was served on June 26, 2019. Accordingly, all of the
proceedings in this case, including those before the BIA, occurred after Pereira was
decided. Therefore, we dismiss this aspect of the petition for review.
Cornejo-Arias challenges the agency’s denial of his application for
withholding of removal, focusing on what he argues was the agency’s erroneous
rejection of his proposed particular social group. But Cornejo-Arias does not
challenge the agency’s independent holding that he is ineligible for withholding of
removal because there are serious reasons to believe he committed a serious non-
political crime before coming to the United States. See 8 U.S.C. § 1231(b)(3)(B)(iii);
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see also Villalobos Sura v. Garland, 8 F.4th 1161, 1167 (9th Cir. 2021). Because
Cornejo-Arias does not challenge the agency’s application of the serious non-
political crime bar, we need not address his arguments regarding his proposed
particular social group because he would still be ineligible for withholding of
removal even if the agency erred with respect to his proposed social group.
The agency’s determination that Cornejo-Arias did not meet his burden to
establish that the gang violence he experienced was “inflicted . . . with the consent
or acquiescence of[] a public official acting in an official capacity,” 8 C.F.R.
§ 1208.18(a)(1), is supported by substantial evidence. See Guo v. Sessions, 897 F.3d
1208, 1212 (9th Cir. 2018); 8 U.S.C. § 1252(b)(4)(B). The IJ found that the El
Salvadoran government did not consent to or acquiesce in the gang violence
Cornejo-Arias experienced because Cornejo-Arias testified that he was working
with the police as part of an undercover operation to arrest gang members and that
he saw the police actually arrest 20-30 gang members. Cornejo-Arias does not
address this evidence but argues that unidentified country conditions evidence
demonstrates that the El Salvadoran government was willfully blind to gang
violence. Substantial evidence supports the agency’s conclusion that the police were
working with Cornejo-Arias to combat gang violence, and the country conditions
evidence does not compel the conclusion that law enforcement was willfully blind
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to the gang violence he experienced. 8 U.S.C. § 1252(b)(4)(B). Therefore, we deny
this aspect of the petition for review.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
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