Antonio Hernandez-Andrade v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO HERNANDEZ-ANDRADE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-71458
Agency No. A200-572-524
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
Antonio Hernandez-Andrade, a native and citizen of El Salvador, petitions
pro se 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
* 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).
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Torture (“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.
Because Hernandez-Andrade does not challenge the agency’s dispositive
determination that he failed to establish changed or extraordinary circumstances to
excuse his untimely asylum application, this issue is waived. See Rios v. Lynch,
807 F.3d 1123, 1125 n.1 (9th Cir. 2015) (issues not specifically raised and argued
in a party’s opening brief are waived). Thus, we deny the petition for review as to
Hernandez-Andrade’s asylum claim.
The BIA did not err in concluding that Hernandez-Andrade 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-, 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

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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). We reject as unsupported by the record Hernandez-Andrade’s contention
that the BIA failed to conduct an adequate cognizability analysis. Thus,
Hernandez-Andrade’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT protection
because Hernandez-Andrade 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).
PETITION FOR REVIEW DENIED.

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