NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ESCOBEDO AGUILERA, No. 19-73068
Petitioner, Agency No. A079-391-853
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2022
Pasadena, California
Before: BENNETT and SUNG, Circuit Judges, and FOOTE,** District Judge.
Juan Escobedo Aguilera, 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 (“IJ”) decision denying his applications for cancellation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
removal, 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. Id. at 1241. We review de novo questions of law and constitutional
claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
in part and dismiss in part the petition for review.
In Escobedo Aguilera’s opening brief he does not raise, and therefore
waives, any challenges to the BIA’s 2019 determinations regarding his alienage
and inadmissibility. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th
Cir. 2013). To the extent Escobedo Aguilera argues that the IJ erred in deeming
him credible with regard to alienage and inadmissibility, but not credible with
regard to his applications for relief, that argument is unexhausted because he failed
to raise this to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.
2004).
Escobedo Aguilera challenges only the agency’s denial of his applications
for withholding of removal and protection under CAT. Because Escobedo
Aguilera does not challenge the agency’s determinations that he is ineligible for
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cancellation of removal and asylum, these claims are waived. See Lopez-Vasquez,
706 F.3d at 1079-80.
Substantial evidence supports the agency’s determination that Escobedo
Aguilera did not suffer past persecution because, for example, he conceded he was
never harmed in Mexico. See 8 C.F.R. § 1208.16(b) (in the absence of past
persecution, there is no presumption of future persecution, and the applicant must
show it is more likely than not that he would be persecuted on account of a
protected ground).
The agency did not err in concluding that Escobedo Aguilera failed to
establish his membership in a cognizable particular social group, because his
proposed social group is too broad to be cognizable. See Barbosa v. Barr, 926
F.3d 1053, 1059-60 (9th Cir. 2019) (proposed particular social group of individuals
returning to Mexico from the U.S. who are believed to be wealthy is too broad);
Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (“imputed wealthy
Americans” returning to Mexico does not constitute a particular social group).
Thus, his withholding of removal claim fails.
To the extent Escobedo Aguilera contends that the agency failed to address
persecution on the basis of political opinion, the agency did not err because
Escobedo Aguilera withdrew his political opinion claim at the merits hearing and
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the IJ did not reach the issue. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th
Cir. 2010).
Substantial evidence supports the agency’s denial of CAT protection
because Escobedo Aguilera 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
Mexico. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)
(evidence of crime and violence that was not specific to petitioner was insufficient
to establish CAT eligibility).
We lack jurisdiction to review Escobedo Aguilera’s claims that the IJ’s
conduct violated his due process rights because he did not exhaust them before the
agency. Sanchez-Cruz v. INS, 255 F.3d 775, 779-80 (9th Cir. 2001).
In light of this disposition, we do not reach Escobedo Aguilera’s remaining
contentions regarding the agency’s adverse credibility determination. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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