Cindy Garcia-Martinez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED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
CINDY VANESSA GARCIA-MARTINEZ; No. 15-72062
et al.,
Agency Nos. A205-375-299
Petitioners, A205-301-888
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2022**
Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.
Cindy Vanessa Garcia-Martinez and her minor child, natives and citizens of
El Salvador, petition pro se for review of the Board of Immigration Appeals’ order
dismissing their appeal from an immigration judge’s decision denying their
application for asylum, and denying Garcia-Martinez’s 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).
withholding of removal and relief 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.
Substantial evidence supports the agency’s determination that petitioners
failed to establish their proposed social groups are socially distinct. See id. at 1243(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 petitioners 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))). Petitioners’ asylum and Garcia-Martinez’s withholding of
removal claims thus fail.
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We lack jurisdiction to consider Garcia-Martinez’s contentions as to the
merits of a CAT claim because she did not raise them to the agency. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review
claims not presented to the agency).
The temporary stay of removal remains in place until the issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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