Salvador Bustamante Flores v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR BUSTAMANTE FLORES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1908
Agency No.
A078-649-007
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2024**
Pasadena, California
Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.
Salvador Bustamante Flores, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) decision affirming the
Immigration Judge’s (IJ) denial of his petition for withholding of removal. We
* 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
APR 9 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question
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 the
BIA’s findings of fact for substantial evidence. Id. We deny the petition.1
Flores contends that the BIA erred in upholding the IJ’s particular social
group (PSG) determination because the IJ relied upon Matter of A-B-, 27 I. & N.
Dec. 316 (A.G. 2018) in doing so, which was in effect at the time of the IJ’s
decision but vacated at the time of the BIA’s decision. See Matter of A-B-, 28 I. &
N. Dec. 307 (A.G. 2021). However, the IJ relied on that decision for the limited
purpose of narrowing the scope of the proposed PSG, which Flores concedes was
proper. As the BIA correctly found, the IJ relied on the established three-prong
analysis outlined in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) to find
Flores’s proposed PSG non cognizable. We have previously upheld the Matter of
M-E-V-G- framework as reasonable and entitled to Chevron deference. See, e.g.,
Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020) (endorsing Matter of M-E-V-
1 The IJ denied Flores’s petitions for asylum and relief under the Convention
Against Torture (CAT). Flores does not challenge the IJ’s denial of asylum based
on the one-year bar, and has waived any claim for relief under CAT by failing to
challenge the IJ’s CAT determination or the BIA’s waiver finding in his opening
brief. See Alanniz v. Barr, 924 F.3d 1061, 1069 n.8 (9th Cir. 2019); see also
Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020).

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G-, which “clarified the elements underlying the particular social group analysis”);
Reyes v. Lynch, 842 F.3d 1125, 1135–36 (9th Cir. 2016); Akosung v. Barr, 970
F.3d 1095, 1103 (9th Cir. 2020). “[W]hen we review the particular social group
determination in an individual case, we ask the legal question of whether the IJ or
the Board reasonably applied the… M-E-V-G- standard in a manner consistent with
precedent.” Nguyen, 983 F.3d at 1103. Accordingly, the BIA did not err in
upholding the IJ’s PSG analysis.
We do not reach the question whether the agency’s individualized PSG
analysis itself was reasonable because Flores did not challenge the IJ’s application
of Matter of M-E-V-G- before the BIA, and the BIA properly found any such
challenge waived. See Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004)
(cleaned up), abrogated in part by Santos-Zacaria v. Garland, 143 S. Ct. 1103
(2023) (A “failure to raise an issue in an appeal to the BIA constitutes a failure to
exhaust remedies with respect to that question.”)
Finally, Flores has forfeited his constitutional due process challenge by
failing to raise it before the agency. See Agyeman v. I.N.S., 296 F.3d 871, 877 (9th
Cir. 2002). Even if the argument had not been forfeited, Flores has failed to show
prejudice as a result of any asserted due process violation. See Grigoryan v. Barr,
959 F.3d 1233, 1240 (9th Cir. 2020) (“To prevail on a due process challenge to
deportation proceedings, [a petitioner] must show error and substantial prejudice.”)

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(internal quotation marks omitted).
PETITION DENIED.

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