NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUILLERMO ADAN DE LA TORRE- No. 15-72025

MAGDALENO,

Agency No. A200-878-085 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Guillermo Adan De La Torre-Magdaleno, 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 asylum, withholding of removal, and relief under the Convention

* 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). Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We

review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th

Cir. 2008), except to the extent that deference is owed to the BIA’s interpretation

of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535

(9th Cir. 2004). We review for substantial evidence the agency’s factual findings.

Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part

and dismiss in part the petition for review.

De La Torre-Magdaleno fears harm in Mexico as a member of the social

group of “returnee[s] that [have] lived in the United States for more than ten

years.” The BIA did not err in finding that De La Torre-Magdaleno failed to

establish membership in a cognizable 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))); see also Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding “returning

Mexicans from the United States” did not constitute a particular social group).

Thus, De La Torre-Magdaleno’s withholding of removal claim fails.

2 Substantial evidence supports the agency’s denial of CAT relief because De

La Torre-Magdaleno failed to show it is more likely than not that he would be

tortured by or with the consent or acquiescence of the government of Mexico. See

Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish

the necessary “state action” for CAT relief).

We lack jurisdiction to consider De La Torre-Magdaleno’s contentions

regarding his asylum claim because he did not exhaust them before the agency.

See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks

jurisdiction to review claims not presented to the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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