NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE CARLOS ALEGRIA-BERIA, AKA No. 13-72229 Jose Carlos Alegria-Barillas, Agency No. A078-192-957 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 31, 2019**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

Jose Carlos Alegria-Beria, a native and citizen of El Salvador, 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”).

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review questions of law de

novo, 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.

The BIA correctly held that Alegria-Beria’s twenty-one-year late application

for asylum was untimely. The record does not compel the conclusion that Alegria-

Beria established changed or extraordinary circumstances to excuse its

untimeliness. See 8 C.F.R. §§ 1208.4(a)(4)-(5). To the extent Alegria-Beria raises

new arguments concerning extraordinary circumstances, we lack jurisdiction to

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

(court lacks jurisdiction to review claims not presented to the agency).

In connection with his application for withholding of removal, the agency

did not err in determining that Alegria-Beria 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 group, “[t]he applicant must

2 13-72229 ‘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))). Thus, Alegria-Beria’s withholding of removal claim fails.

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

Alegria-Beria failed to show it is more likely than not he will 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); Garcia-Milian, 755 F.3d at

1033-35 (concluding that petitioner did not establish the necessary state action for

CAT relief).

We reject Alegria-Beria’s contention that the agency applied incorrect legal

standards.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 13-72229