Juan Avila Vicente; v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN AVILA VICENTE; et al.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-2009
Agency Nos.
A201-946-964
A201-946-965
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2023**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Juan Avila Vicente and his minor daughter, natives and citizens of
Guatemala, petition pro se for review of the Board of Immigration Appeals’
(“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision
denying their application for asylum, and Avila Vicente’s applications for
* 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
OCT 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 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 the petition for review.
The BIA did not err in concluding that petitioners failed to establish
membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d
1125, 1131 (9th Cir. 2016) (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))); see also Nguyen v. Barr, 983 F.3d 1099,
1103 (9th Cir. 2020) (“The particularity element requires characteristics that
provide a clear benchmark for determining who falls within the group,” and “[t]he
group must also be discrete and have definable boundaries—it must not be
amorphous, overbroad, diffuse, or subjective.” (internal quotation marks and
citations omitted)).
Because petitioners do not challenge the BIA’s determination that they

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waived review of whether the government was unable or unwilling to protect them
and whether their future fear was objectively reasonable, we do not address it. See
Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). Petitioners’
contentions regarding the merits of these claims and Avila Vicente’s contention the
IJ failed to fully analyze his claim under the withholding of removal standard are
not properly before the court because they failed to raise them before the BIA. See
8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also
Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a
non-jurisdictional claim-processing rule).
We do not address petitioners’ contentions as to whether past harm rose to
the level of persecution because the BIA did not deny relief on this ground. See
Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing
the decision of the BIA, we consider only the grounds relied upon by that agency.”
(citation and internal quotation marks omitted)).
Thus, petitioners’ asylum claim and Avila Vicente’s withholding of removal
claim fail.
Because Avila Vicente does not challenge the BIA’s determination he
waived his CAT claim, we do not address it. See Lopez-Vasquez, 706 F.3d at
1079-80. Avila Vicente’s contentions regarding the merits of his CAT claim are
not properly before the court because he failed to raise them before the BIA. See

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8 U.S.C. § 1252(d)(1); see also Santos-Zacaria, 598 U.S. at 417-19. Thus, Avila
Vicente’s CAT claim fails.
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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