United States v. 2020-11-13 | 16-70086 | DHAVAL THAKER V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DHAVAL GIRISH THAKER,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 16-70086

Agency No. A043-585-816

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted November 9, 2020
**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Dhaval Girish Thaker, a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application 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

*
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

NOV 13 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 16-70086
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 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. We deny in part and dismiss in part
the petition for review.
In his opening brief, Thaker does not challenge the agency’s determination
that he did not establish past persecution. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a
party’s opening brief are waived).
Substantial evidence supports the agency’s determination that Thaker did not
establish a well-founded fear of persecution in India on account of his Hindu
religion. See Gu v. Gonzales, 454 F.3d 1014, 1022 (9th Cir. 2006) (petitioner
failed to present “compelling, objective evidence demonstrating a well-founded
fear of persecution”).
The agency did not err in determining that Thaker’s social group
“Americanized or long-term U.S. residents returning to the home country” was not
cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1331 (9th Cir. 2016) (in order 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

3 16-70086
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))). To the extent Thaker proposes a new social group,
“Americanized Hindus,” we lack jurisdiction to consider it. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (petitioner must exhaust issues or
claims in administrative proceedings below). Thus, Thaker’s asylum claim fails.
Because Thaker failed to establish eligibility for asylum, in this case, he did
not establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453
F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence supports the agency’s denial of CAT relief because
Thaker failed to show it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if returned to India. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.