Erick Flores-Lopez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK FLORES-LOPEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70583
Agency No. A205-718-081
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Erick Flores-Lopez, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) 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
NOV 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 for substantial evidence the agency’s factual findings. Id. at 1241. We
deny in part and dismiss in part the petition for review.
In his opening brief, Flores-Lopez does not raise any argument challenging
the agency’s dispositive determination that his asylum application was time-barred.
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). Thus, his
asylum claim fails.
The agency did not err in concluding that Flores-Lopez 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 ‘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))). Thus, Flores-Lopez’s
withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because

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Flores-Lopez 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 Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Wakkary v. Holder, 558 F.3d
1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).
Flores-Lopez waives any challenge to the BIA’s determination that it and the
IJ lack authority to grant Deferred Action for Child Arrivals (“DACA”) relief. See
Lopez-Vasquez, 706 F.3d at 1079-80. Thus, Flores-Lopez’s request, raised in his
opening brief, to remand to the agency for consideration of DACA relief is denied.
We do not consider Florez-Lopez’s unexhausted request for remand to apply
for cancellation of removal. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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