Cal-Lopez De Gomez v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KARINA DEL CARMEN CAL-LOPEZ DE No. 23-966 GOMEZ; et al., Agency Nos. A209-891-185 Petitioners, A209-891-184 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 17, 2024 ** Before: CANBY, PAEZ, and SUNG, Circuit Judges. Karina Del Carmen Cal-Lopez De Gomez and her child, 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’s”) * 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). decision denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, including determinations regarding social distinction. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review de novo questions of law, including 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. 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 Conde Quevedo, 947 F.3d at 1243 (proposed social group lacked social distinction because the record failed to establish its members are perceived or recognized as a group by the society in question). Thus, petitioners’ asylum and withholding of removal claims fail. Substantial evidence supports the agency’s denial of CAT protection because petitioners failed to show it is more likely than not they will be tortured by 2 23-966 or with the consent or acquiescence of the government if returned to Guatemala. Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture). Petitioners’ contention regarding the IJ’s denial of their motion to terminate is not properly before the court because they failed to raise it 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). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED. 3 23-966