Hernandez-Sesente v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MERCEDES YANETH HERNANDEZ- No. 22-1590 SESENTE; RONALD VLADIMIR Agency Nos. BARRAZA-HERNANDEZ, A206-690-652 A206-690-653 Petitioners, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 7, 2023** Pasadena, California Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges. Mercedes Yaneth Hernandez-Sesente and her minor son, natives and citizens of El Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) * 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 dismissing an appeal from the Immigration Judge’s denial of Hernandez- Sesente’s application for asylum, withholding of removal, and protection under the Convention against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review. 1. The agency did not err in finding that Hernandez-Sesente’s proposed particular social group of “vulnerable Salvadoran daughters in a domestic relationship” was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (explaining that 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))). We do not consider Hernandez-Sesente’s newly proposed particular social group—“a single female child who was in a parent-child domestic relationship and was a victim of domestic violence as a child from her natural mother,” who “considered [Hernandez-Sesente] ‘property’”—because she did not present it to the agency. See 8 U.S.C. § 1252(d)(1) (exhaustion requirement); Santos-Zacaria v. Garland, 598 U.S. 411, 417, 423 (2023) (explaining that the exhaustion 1 Hernandez-Sesente’s son was a derivative applicant on her application for asylum. See 8 U.S.C. § 1158(b)(3)(A). 2 22-1590 requirement is mandatory unless waived by the government). Hernandez-Sesente’s failure to establish a cognizable social group is dispositive of her asylum claim, and thus, we do not consider her other arguments. See Reyes, 842 F.3d at 1132 n. 3. See Sarkar v. Garland, 39 F.4th 611, 622 (9th Cir. 2022). 2. Substantial evidence supports the denial of CAT protection because Hernandez-Sesente failed to show that it is more likely than not she would be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). PETITION DENIED. 3 22-1590