Margarita Esther Garcia- Gaitan; v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA ESTHER GARCIA-
GAITAN; et al.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72553
Agency Nos. A209-297-816
A209-297-815
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2022**
San Francisco, California
Before: WALLACE, TALLMAN, and BYBEE, Circuit Judges.
Margarita Esther Garcia-Gaitan and her minor son, natives and citizens of El
Salvador, petition pro se for review of the Board of Immigration Appeals’ (“BIA”)
order dismissing their appeal from an immigration judge’s (“IJ”) decision denying
* 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
DEC 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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their application for asylum. Our jurisdiction is governed by 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 factual findings for substantial evidence. Id.
at 1241. We deny in part and dismiss in part the petition for review.
The BIA did not err in determining that Garcia-Gaitan’s proposed particular
social group of “victims of gang violence” is not cognizable because it cannot
“exist independently of the fact of persecution.” See Diaz-Reynoso v. Barr, 968
F.3d 1070, 1081 (9th Cir. 2020) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
227, 236 n.11 (BIA 2014)).
We do not consider Garcia-Gaitan’s newly-raised particular social groups
comprised of family members and Salvadorans who report crimes because the BIA
did not decide the issues, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829
(9th Cir. 2011) (review limited to the grounds relied on by the BIA), and Garcia-
Gaitan does not contend the BIA erred in finding that her proposed particular
social groups were not properly before it, see Corro-Barragan v. Holder, 718 F.3d
1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in
waiver).
Thus, petitioners’ asylum claim fails.

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We lack jurisdiction to consider Garcia-Gaitan’s contention that the IJ
violated her right to due process because she 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 present in administrative proceedings below).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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