Jose Lopez Salazar v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2022
• Docket: 20-71744
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LOPEZ SALAZAR, No. 20-71744

Petitioner, Agency No. A087-990-909

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 7, 2022** San Francisco, California

Before: S.R. THOMAS and McKEOWN, Circuit Judges, and ORRICK,*** District Judge.

Jose Lopez Salazar, a native and citizen of Guatemala, petitions for review

of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal

* 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). *** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. from the Immigration Judge’s (“IJ”) order denying his application for withholding

of removal and deeming his application for relief under the Convention Against

Torture withdrawn. We review the agency’s “legal conclusions de novo and its

factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions, 850

F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). We have

jurisdiction under 8 U.S.C. § 1252 and deny in part and dismiss in part the petition.

Lopez Salazar’s challenge to the agency’s jurisdiction is foreclosed by our

decisions in Aguilar Fermin v. Barr, 958 F.3d 887, 893–95 (9th Cir.), cert. denied,

141 S. Ct. 664 (2020), and Karingithi v. Whitaker, 913 F.3d 1158, 1160–62

(9th Cir. 2019). Lopez Salazar’s briefing appears to argue that we should conclude

that Aguilar Fermin and Karingithi were wrongly decided, but we are bound by

our prior caselaw absent extraordinary circumstances not present here. Miller v.

Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

Although Lopez Salazar adequately exhausted the issue, he is mistaken in

claiming that the agency failed to sufficiently consider whether his proposed

particular social group of “repatriated Guatemalan males who oppose gang

violence” satisfied the criteria identified in Matter of M–E–V–G–, 26 I. & N. Dec.

227 (BIA 2014). The IJ concluded that this proposed group did not satisfy the M–

E–V–G– criteria, finding the group “lack[ed] immutable status as well as

particularity and social distinction.” The BIA adopted and affirmed the IJ’s

2 decision citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), meaning

that it was not required to conduct its own individualized analysis of the proposed

group. “Our caselaw establishes that where the BIA cites its decision in Burbano

and does not express disagreement with any part of the IJ’s decision, the BIA

adopts the IJ’s decision in its entirety.” Abebe v. Gonzales, 432 F.3d 1037, 1040

(9th Cir. 2005). The agency adequately addressed this argument, and Lopez

Salazar has not argued that the agency’s conclusion was unsupported by substantial

evidence, waiving any such challenge. Bingxu Jin v. Holder, 748 F.3d 959, 964

n.2 (9th Cir. 2014).

Lopez Salazar’s remaining arguments are unexhausted, and therefore

unreviewable. See Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014)

(stating that issue exhaustion is a jurisdictional requirement); Sola v. Holder, 720

F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam) (declining to address due process

argument not raised below, which could have been addressed by the agency).

PETITION DENIED IN PART AND DISMISSED IN PART.