Oscar Maya Venegas v. ROBERT M. WILKINSON, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR MAYA VENEGAS,
Petitioner,
v.
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
No. 18-70836
Agency No. A047-729-123
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Oscar Maya Venegas, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for withholding of removal
and relief under the Convention Against Torture (“CAT”). Our jurisdiction is
* 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
FEB 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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governed by 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 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.
Substantial evidence supports the agency’s determination that Maya
Venegas failed to establish his proposed social group based on his cooperation
with law enforcement is socially distinct. See Conde Quevedo, 947 F.3d at 1243
(substantial evidence supported the agency’s determination that petitioner’s
proposed social group was not cognizable because of the absence of society-
specific evidence of social distinction). Thus, the BIA did not err in concluding
that Maya Venegas did not establish membership in a cognizable particular social
group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (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
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))). In his opening brief, Maya Venegas does not challenge the
agency’s determination that his proposed returnee-based social group was not

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cognizable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir.
2013) (issues not specifically raised and argued in a party’s opening brief are
waived). To the extent Maya Venegas raises a new social group for the first time
in his opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft,
358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not
presented to the agency). Thus, Maya Venegas’s withholding of removal claim
fails.
Substantial evidence supports the agency’s denial of CAT relief because
Maya Venegas 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 Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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