Mauricio Tibelan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURICIO TIBELAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72102
Agency No. A209-133-180
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Mauricio Tibelan, a native and citizen of Guatemala, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s 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).
FILED
AUG 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and denying his motion to terminate proceedings. We have jurisdiction under 8
U.S.C. § 1252. We review for substantial evidence the agency’s factual findings,
including determinations regarding social distinction. Conde Quevedo v. Barr, 947
F.3d 1238, 1241-42 (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.
We deny the petition for review.
In his opening brief, Tibelan does not challenge the agency’s determinations
regarding due process, humanitarian asylum, and his motion to terminate
proceedings. 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).
Substantial evidence supports the agency’s determination that Tibelan failed
to establish his proposed social groups are socially distinct. See Conde Quevedo,
947 F.3d at 1243 (substantial evidence supported the agency’s determination that
petitioner’s proposed social group was not cognizable because of the absence of
society-specific evidence of social distinction). Thus, the BIA did not err in
concluding that Tibelan 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

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‘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))). Accordingly, Tibelan’s asylum and withholding of removal
claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
Tibelan 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 Guatemala. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.

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