NOT FOR PUBLICATION FILED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

HILBERTO CORTEZ-HERNANDEZ, No. 19-72922 AKA Leopoldo Cortez Hernandez, Agency No. A200-552-559 Petitioner,

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.

Hilberto Cortez-Hernandez, 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 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 for substantial evidence

the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (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. at 1241-42. We deny

in part and dismiss in part the petition for review.

Substantial evidence supports the agency’s determination that Cortez-

Hernandez failed to establish that the harm he experienced or fears in El Salvador

was or would be on account of a protected ground, specifically, a political opinion.

See Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (to establish a

nexus to a political opinion ground, petitioners must show “(1) that [they] had

either an affirmative or imputed political opinion, and (2) that they were targeted

on account of that opinion”).

The agency also did not err in concluding that Cortez-Hernandez’s 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))).

2 19-72922 We lack jurisdiction to consider the proposed family-based particular social

group or arguments regarding immutability raised for the first time in Cortez-

Hernandez’s opening brief. 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, Cortez-Hernandez’s withholding of removal claim fails.

In light of this disposition, we do not reach Cortez-Hernandez’s remaining

contentions as to whether he experienced past persecution or established a clear

probability of future persecution. See Simeonov v. Ashcroft, 371 F.3d 532, 538

(9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary

to the results they reach).

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

Cortez-Hernandez 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 El Salvador.

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

We reject as unsupported by the record Cortez-Hernandez’s contention that

the agency mischaracterized his testimony or otherwise erred in its analysis of his

case.

3 19-72922 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.

4 19-72922