Josue Osmel Argueta-Caballero v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSUE OSMEL ARGUETA-CABALLERO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70331
Agency No. A209-223-673
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2022**
San Francisco, California
Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,*** Judge.
Petitioner seeks review of a Board of Immigration Appeals (BIA) decision
dismissing the appeal of the IJ’s denial of his applications for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT). We have
* 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 Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
DEC 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Petitioner is a native and citizen of El Salvador who was placed in removal
proceedings after entering the U.S. without valid papers on June 9, 2016. Petitioner
alleges that on May 4, 2016, he was robbed by gang members near a park. Then, on
May 21, 2016, three MS gang members approached the sales stand he operated at
the time, said that they had been observing him, that they wanted him to move drugs,
weapons, and extortion money, and that they would kill him if he didn’t comply.
Petitioner reported the event to the police who advised that he leave the country. On
June 3, 2016, Petitioner quit his job and left the vicinity, evading the gang’s search.
He then crossed into the U.S. On August 11, 2016, he was served a Notice to Appear
(NTA) that lacked a date or time for the removal hearing.
On August 6, 2018, the IJ ordered Petitioner’s removal to El Salvador, and
denied his applications for asylum, withholding of removal, and CAT protection (as
well as a motion to terminate under Pereira v. Sessions, 138 S. Ct. 2105 (2018)).
The particular social group presented by Petitioner was “former salesm[e]n who lack
police protection against the gangs.” In his appeal to the BIA, Petitioner changed
the proposed social group to “‘former salesmen’ for the village of Agua Zarca.” On
January 19, 2021, the BIA dismissed the appeal.
“Whether a group constitutes a ‘particular social group’ … is a question of
law we review de novo.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010).

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But whether an applicant has shown that his persecutor was or would be motivated
by a protected ground—i.e., whether the “nexus” requirement has been satisfied—
is reviewed under the substantial evidence standard. See Parussimova v. Mukasey,
555 F.3d 734, 739 (9th Cir. 2009). Under this deferential standard, factual findings
are “conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, to reverse the BIA’s finding under
substantial evidence review, “we must find that the evidence not only supports that
conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
The petition is denied for three reasons. First, Petitioner argues that the NTA
he was served was defective under Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480–
81 (2021), which appears to be an attempted reprise of an argument he failed to raise
before the BIA: that the defect defeated jurisdiction under Pereira. Not only is that
argument waived because Petitioner never presented it to the BIA in any form, and
thus not properly before our court (see 8 U.S.C. § 1252(d)(1)), it is foreclosed in any
event by United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022)
(en banc).
Second, to the extent that Petitioner seeks review of his claims for asylum and
withholding of removal, he has not demonstrated error in the BIA’s decision.
Petitioner does not dispute the BIA’s determination that he failed to exhaust the
proposed social group of “former salesm[e]n for the village of Agua Zarca.” We

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thus lack jurisdiction to consider this group. See 8 U.S.C. § 1252(d)(1). To the
extent Petitioner still contends he was persecuted on the basis of the proposed group
of “former salesmen who lack police protection against the gangs”—the proposed
group he did exhaust before the BIA—Petitioner has not demonstrated that this
proposed group is legally cognizable.
Lastly, as to CAT relief, the BIA’s determination that Petitioner failed to show
he faces a “particularized threat” of torture, Dhital v. Mukasey, 532 F.3d 1044, 1051
(9th Cir. 2008) (citation omitted), is supported by substantial evidence and nothing
in the record compels a contrary conclusion.
PETITION DENIED.

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