NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER ALEXANDER VILLALOBOS- No. 20-70000
MARTINEZ,
Agency No. A088-893-095
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 1, 2022**
Before: FRIEDLAND, SANCHEZ, and H. THOMAS, Circuit Judges.
Walter Alexander Villalobos-Martinez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
*
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).
application 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 for substantial
evidence the agency’s factual findings, including determinations regarding social
distinction. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). 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. Id. We deny in part and dismiss in part
the petition for review.
To the extent Villalobos-Martinez contends that the IJ erred by pretermitting
his asylum application as untimely or denying his application for CAT protection,
we lack jurisdiction to consider those issues because they were not exhausted in the
agency. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
Substantial evidence supports the agency’s conclusion that the threats
Villalobos-Martinez received did not rise to the level of persecution. See Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“We have been most
likely to find persecution where threats are repeated, specific and combined with
confrontation or other mistreatment.” (internal quotation marks omitted)).
Substantial evidence also supports the agency’s determination that Villalobos-
Martinez failed to establish that his proposed social group of “young men recruited
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by organized crime who decline to join and as a result are threatened ” is socially
distinct within El Salvador. See Conde Quevedo, 947 F.3d at 1243 (substantial
evidence supported the agency’s determination that petitioner’s proposed social
group was not cognizable because of the absence of society-specific evidence of
social distinction). Thus, the BIA did not err in concluding that Villalobos-
Martinez did not 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))).1
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
1
The BIA did not err in declining to consider an alternative social group, “law
abiding El Salvadorans who have already been subject to violence in an
environment where the gangs act with impunity,” which was raised for the first
time in Villalobos-Martinez’s brief to the BIA. Honcharov v. Barr, 924 F.3d 1293,
1297 (9th Cir. 2019) (“[T]he Board does not per se err when it concludes that
arguments raised for the first time on appeal do not have to be entertained.”).
Villalobos-Martinez uses that description of his social group in his brief to this
court. To the extent that social group differs from the social group evaluated by
the IJ, we lack jurisdiction to consider it. Barron, 358 F.3d at 677-78.
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