Alas v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE ALBERTO ALAS, No. 22-1485 Agency No. Petitioner, A029-153-560 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. 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).  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. 2 22-1485 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. 3 22-1485