NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS MIGUEL HERNANDEZ- No. 20-70867 VELAZQUEZ, AKA Enrique Nava- Sanchez, Agency No. A088-711-170

Petitioner,

MEMORANDUM*

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 12, 2021**

Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.

Luis Miguel Hernandez-Velazquez, 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 applications for

* 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). cancellation of removal, asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). Our 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 dismiss in part and deny in part the

petition for review.

We lack jurisdiction to review the agency’s discretionary determination that

Hernandez-Velazquez did not show exceptional and extremely unusual hardship to

a qualifying relative for purposes of cancellation of removal. See 8 U.S.C.

§ 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

The petition does not raise a colorable legal or constitutional claim over which we

retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Martinez-Rosas, 424 F.3d at

930.

The record does not compel the conclusion that Hernandez-Velazquez

established changed or extraordinary circumstances to excuse his untimely asylum

application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5). Thus,

Hernandez-Velazquez’s asylum claim fails.

The agency did not err in concluding that Hernandez-Velazquez did not

2 20-70867 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))). To the extent that

Hernandez-Velazquez raises in the first instance a particular social group based, in

part, on young age and previous residence in the United States, 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). We do not reach

Hernandez-Velazquez’s contentions regarding whether the government is unable

or unwilling to protect him or that he experienced harm rising to the level of

persecution. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)

(review limited to the grounds relied on by the BIA). Thus, Hernandez-

Velazquez’s withholding of removal claim fails.

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

Hernandez-Velazquez 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 Mexico.

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

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

3 20-70867 mandate.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

4 20-70867