NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 19 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICK FLORES-LOPEZ, No. 21-70583

Petitioner, Agency No. A205-718-081

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 8, 2021**

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Erick Flores-Lopez, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) 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 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.

In his opening brief, Flores-Lopez does not raise any argument challenging

the agency’s dispositive determination that his asylum application was time-barred.

See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not

specifically raised and argued in a party’s opening brief are waived). Thus, his

asylum claim fails.

The agency did not err in concluding that Flores-Lopez 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))). Thus, Flores-Lopez’s

withholding of removal claim fails.

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

2 21-70583 Flores-Lopez 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); Wakkary v. Holder, 558 F.3d

1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

Flores-Lopez waives any challenge to the BIA’s determination that it and the

IJ lack authority to grant Deferred Action for Child Arrivals (“DACA”) relief. See

Lopez-Vasquez, 706 F.3d at 1079-80. Thus, Flores-Lopez’s request, raised in his

opening brief, to remand to the agency for consideration of DACA relief is denied.

We do not consider Florez-Lopez’s unexhausted request for remand to apply

for cancellation of removal. 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.

3 21-70583