LUIS PEREZ MARTINEZ V. MERRICK GARLAND, No. 17-70071 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 18 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT LUIS ANGEL PEREZ MARTINEZ, Petitioner, No. U.S. COURT OF APPEALS 17-70071 Agency No. A200-157-416 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 15, 2022** Before: CANBY, CALLAHAN, and BADE, Circuit Judges. Luis Angel Perez Martinez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture * 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). (“CAT”). We have jurisdiction under 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 the petition for review. The record does not compel the conclusion that Perez Martinez established changed or extraordinary circumstances to excuse the untimely asylum application. See Singh v. Holder, 649 F.3d 1161, 1164-65 (9th Cir. 2011) (en banc) (court retained jurisdiction to review legal or constitutional questions related to the oneyear filing deadline); 8 C.F.R. § 1208.4(a)(4)-(5) (changed and extraordinary circumstances). Perez Martinez’s challenge to the denial of humanitarian asylum lacks merit. See 8 C.F.R. § 1208.13(b)(1)(iii)(A). Perez Martinez’s asylum claim thus fails. The BIA did not err in concluding that Perez Martinez failed to establish membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (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-, 2 17-70071 26 I. & N. Dec. 227, 237 (BIA 2014))); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (proposed group “young men in El Salvador resisting gang violence” lacked particularity), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). Thus, Perez Martinez’s withholding of removal claim fails. Substantial evidence supports the agency’s denial of CAT protection because Perez Martinez 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 El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (“torture must be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’”) (internal citation omitted). The temporary stay of removal remains in place until the mandate issues. All other pending motions are denied as moot. PETITION FOR REVIEW DENIED. 3 17-70071
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