NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE FUNES-CARRILLO, No. 20-71056

Petitioner, Agency No. A076-666-305

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Jorge Funes-Carrillo, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for withholding of

removal and relief under the Convention Against Torture (“CAT”). Our

* 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). jurisdiction is governed by 8 U.S.C. § 1252. 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. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We

review for substantial evidence the agency’s factual findings. Id. at 1241. We

deny in part and dismiss in part the petition for review.

The BIA did not err in declining to consider Funes-Carrillo’s arguments

regarding a family-based particular social group that were raised for the first time

to the BIA. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (BIA did

not err in declining to consider a particular social group raised for the first time on

appeal); see also Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 191 (BIA 2018)

(an applicant “has the burden to clearly indicate the exact delineation of any

particular social group(s) to which she claims to belong” (internal quotation marks

and citation omitted)).

The BIA did not err in concluding that Funes-Carrillo failed to establish

membership in a cognizable particular social group based on being victimized by

gangs. 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

2 20-71056 within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,

237 (BIA 2014))); see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir.

2020) (“[A] particular social group must exist independently of the harm

asserted . . . .”).

To the extent Funes-Carrillo raises a new particular social group 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, Funes-Carrillo’s withholding of removal claim fails.

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

Funes-Carrillo 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 Guatemala. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-71056