Fredy Miguel Solares-Aguilar v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDY MIGUEL SOLARES-AGUILAR,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 16-71255
Agency No. A206-772-402
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2022**
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and CARDONE,*** District Judge.
Petitioner Fredy Solares-Aguilar, a citizen of Guatemala, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing his
* 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).
*** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
APR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
appeal of the denial of his applications for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). Our jurisdiction is governed
by 8 U.S.C. § 1252. “We review for substantial evidence the [agency’s] factual
findings.” Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). 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. Id. at. 1241–42. We deny the petition
for review.
1. The agency did not err in concluding that Solares-Aguilar’s proposed
particular social group of “Guatemalan child who has been subjected to physical
harm and emotional trauma by his teachers at school, and who suffered threats
after notifying the government” was not cognizable. To demonstrate membership
in a cognizable particular social group, an applicant must show 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.’”
Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting Matter of M-E-V-G-,
26 I. & N. Dec. 227, 237 (BIA 2014)).
Substantial evidence supports the BIA’s determination that the proposed
social group lacks social distinction because there is no “evidence showing that
society in general perceives, considers, or recognizes persons sharing the particular

-- 2 of 3 --

3
characteristic to be a group.” See Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir.
2020) (citations omitted) (internal quotation marks omitted).
2. Solares-Aguilar waived any challenge to the IJ’s denial of relief under
the CAT because he failed to meaningfully raise such a claim in his opening brief.
See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011); Singh v. Ashcroft,
361 F.3d 1152, 1157 n.3 (9th Cir. 2004). Moreover, this court would lack
jurisdiction over any challenge to the IJ’s denial of relief under the CAT because
Solares-Aguilar did not challenge the IJ’s resolution of this CAT claim on appeal
to the BIA. See 8 U.S.C. § 1252(d)(1) (stating that this court may review a final
order if “the alien has exhausted all administrative remedies available to the alien
as of right”); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (holding
that § 1252(d)(1) mandates exhaustion and, thus, this court generally lacks
jurisdiction over “the merits of a legal claim not presented in the administrative
proceedings below”).
3. We reject Solares-Aguilar’s contention that the BIA erred in streamlining
his case because the BIA did not streamline his case.
PETITION FOR REVIEW DENIED.

-- 3 of 3 --