Jorge Alberto Alas v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ALBERTO ALAS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1485
Agency No.
A029-153-560
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 4, 2024**
Pasadena, California
Before: CLIFTON, H.A. THOMAS, and DESAI, Circuit Judges.
Jorge Alberto Alas, a native and citizen of El Salvador, petitions for review
of a Board of Immigration Appeals (“Board”) decision denying his application for
asylum. We have jurisdiction under 8 U.S.C. § 1252.
* 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
MAR 6 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-1485
Generally, we review de novo the legal question of whether a particular social
group is cognizable. Gutierrez-Alm v. Garland, 62 F.4th 1186, 1199 (9th Cir. 2023).
But “[t]he [Board]’s conclusion regarding social distinction—whether there is
evidence that a specific society recognizes a social group—is a question of fact that
we review for substantial evidence.” Id. (quoting Conde Quevedo v. Barr, 947 F.3d
1238, 1242 (9th Cir. 2020)). Where, as here, the Board adopts the decision of the IJ,
we review the IJ’s decision as if it were the Board’s. Abebe v. Gonzales, 432 F.3d
1037, 1039 (9th Cir. 2005) (en banc).
Mr. Alas argues that he “was targeted because of his status as a business
owner.” The government correctly argues that this claim is unexhausted. Santos-
Zacaria v. Garland, 598 U.S. 411, 419 (2023) (holding the exhaustion requirement
is a non-jurisdictional claim-processing rule); Fort Bend County v. Davis, 139 S. Ct.
1843, 1849 (2019) (explaining that a court must enforce a claim-processing rule “if
a party properly raises it” (cleaned up)). Moreover, because Mr. Alas does not argue
that the proposed social groups raised to the IJ and Board are cognizable, he waives
any further review of those groups. 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). Even if Mr. Alas had properly raised those proposed social groups
before this court, substantial evidence nonetheless supports the IJ’s determination
that Mr. Alas’s proposed groups are not socially distinct in Salvadoran society. Cf.

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Conde Quevedo, 947 F.3d at 1243 (holding that substantial evidence supported the
determination that the record lacked evidence establishing “people who report the
criminal activity of gangs to police” are “perceived or recognized as a group by
society in Guatemala”).1
The petition for review is DENIED.
1 Mr. Alas argues that the IJ erred in determining that his testimony was not credible.
But even assuming the credibility of his testimony, his failure to exhaust and
forfeiture of his proposed social groups prove fatal to his petition.

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