MARTIN SOLORIO V. MERRICK GARLAND, No. 16-73733 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAY 23 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT MARTIN SOLORIO, AKA Stranger, Petitioner, No. U.S. COURT OF APPEALS 16-73733 Agency No. A077-104-860 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted on May 17, 2022** Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges. Martin Solorio, 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 decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Our jurisdiction is * 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). governed by 8 U.S.C § 1252. We review for substantial evidence the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (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. at 1241-42. We review de novo claims of due process violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny in part and dismiss in part the petition for review. The BIA did not err in concluding that Solorio 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))). We lack jurisdiction to consider the new particular social group Solorio raises in his opening brief because he failed to raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Solorio’s contentions that the agency erred and violated due process by conducting an inadequate analysis of his withholding of removal claim fail. See 2 16-73733 Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error is required to prevail on a due process claim); see also Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency sufficiently announced its decision). Thus, Solorio’s withholding of removal claim fails. Substantial evidence supports the agency’s denial of CAT relief because Solorio failed to show that 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). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 16-73733
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