ERICK FLORES-LOPEZ V. MERRICK GARLAND, No. 21-70583 (9th Cir. 2021)
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FILED NOT FOR PUBLICATION NOV 19 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ERICK FLORES-LOPEZ, Petitioner, v. No. U.S. COURT OF APPEALS 21-70583 Agency No. A205-718-081 MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 8, 2021** Before: CANBY, TASHIMA, and MILLER, Circuit Judges. Erick Flores-Lopez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). * 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). 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 deny in part and dismiss in part the petition for review. In his opening brief, Flores-Lopez does not raise any argument challenging the agency’s dispositive determination that his asylum application was time-barred. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are waived). Thus, his asylum claim fails. The agency did not err in concluding that Flores-Lopez 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))). Thus, Flores-Lopez’s withholding of removal claim fails. Substantial evidence supports the agency’s denial of CAT relief because 2 21-70583 Flores-Lopez 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 Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture). Flores-Lopez waives any challenge to the BIA’s determination that it and the IJ lack authority to grant Deferred Action for Child Arrivals (“DACA”) relief. See Lopez-Vasquez, 706 F.3d at 1079-80. Thus, Flores-Lopez’s request, raised in his opening brief, to remand to the agency for consideration of DACA relief is denied. We do not consider Florez-Lopez’s unexhausted request for remand to apply for cancellation of removal. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 21-70583
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