DHAVAL THAKER V. WILLIAM BARR, No. 16-70086 (9th Cir. 2020)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 13 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DHAVAL GIRISH THAKER, Petitioner, v. No. U.S. COURT OF APPEALS 16-70086 Agency No. A043-585-816 MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 9, 2020** Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges. Dhaval Girish Thaker, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, 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 * 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 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. In his opening brief, Thaker does not challenge the agency’s determination that he did not establish past persecution. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived). Substantial evidence supports the agency’s determination that Thaker did not establish a well-founded fear of persecution in India on account of his Hindu religion. See Gu v. Gonzales, 454 F.3d 1014, 1022 (9th Cir. 2006) (petitioner failed to present “compelling, objective evidence demonstrating a well-founded fear of persecution”). The agency did not err in determining that Thaker’s social group “Americanized or long-term U.S. residents returning to the home country” was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1331 (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 2 16-70086 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 Thaker proposes a new social group, “Americanized Hindus,” we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (petitioner must exhaust issues or claims in administrative proceedings below). Thus, Thaker’s asylum claim fails. Because Thaker failed to establish eligibility for asylum, in this case, he did not establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). Substantial evidence supports the agency’s denial of CAT relief because Thaker 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 India. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 16-70086
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