NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 14 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNESTO YOVANY CORNEJO-ARIAS, No. 20-73572

Petitioner, Agency No. A206-062-351

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 12, 2022** San Francisco, California

Before: CLIFTON and M. SMITH, Circuit Judges, and REISS,*** District Judge.

Ernesto Yovany Cornejo-Arias seeks review of the Board of Immigration

Appeals’ (BIA) order denying his applications for withholding of removal and

* 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). *** The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. deferral of removal pursuant to the Convention Against Torture. We have

jurisdiction over most of the petition for review pursuant to 8 U.S.C. § 1252. The

BIA adopted the immigration judge’s decision and cited Matter of Burbano, 20 I. &

N. Dec. 872 (BIA 1994), so we review the immigration judge’s decision as if it were

the BIA’s. Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc).

We lack jurisdiction to review Cornejo-Arias’s argument that the agency

lacked jurisdiction over him due to a defective notice to appear because he did not

exhaust this issue before the IJ or the BIA. Ruiz-Colmenares v. Garland, 25 F.4th

742, 748 (9th Cir. 2022). Cornejo-Arias argues that he was not required to exhaust

this claim because the Supreme Court did not decide Pereira v. Sessions, 138 S. Ct.

2105 (2018) until after the parties’ briefing before the BIA was completed. That is

incorrect. The notice to appear was served on June 26, 2019. Accordingly, all of the

proceedings in this case, including those before the BIA, occurred after Pereira was

decided. Therefore, we dismiss this aspect of the petition for review.

Cornejo-Arias challenges the agency’s denial of his application for

withholding of removal, focusing on what he argues was the agency’s erroneous

rejection of his proposed particular social group. But Cornejo-Arias does not

challenge the agency’s independent holding that he is ineligible for withholding of

removal because there are serious reasons to believe he committed a serious non-

political crime before coming to the United States. See 8 U.S.C. § 1231(b)(3)(B)(iii);

2 see also Villalobos Sura v. Garland, 8 F.4th 1161, 1167 (9th Cir. 2021). Because

Cornejo-Arias does not challenge the agency’s application of the serious non-

political crime bar, we need not address his arguments regarding his proposed

particular social group because he would still be ineligible for withholding of

removal even if the agency erred with respect to his proposed social group.

The agency’s determination that Cornejo-Arias did not meet his burden to

establish that the gang violence he experienced was “inflicted . . . with the consent

or acquiescence of[] a public official acting in an official capacity,” 8 C.F.R.

§ 1208.18(a)(1), is supported by substantial evidence. See Guo v. Sessions, 897 F.3d

1208, 1212 (9th Cir. 2018); 8 U.S.C. § 1252(b)(4)(B). The IJ found that the El

Salvadoran government did not consent to or acquiesce in the gang violence

Cornejo-Arias experienced because Cornejo-Arias testified that he was working

with the police as part of an undercover operation to arrest gang members and that

he saw the police actually arrest 20-30 gang members. Cornejo-Arias does not

address this evidence but argues that unidentified country conditions evidence

demonstrates that the El Salvadoran government was willfully blind to gang

violence. Substantial evidence supports the agency’s conclusion that the police were

working with Cornejo-Arias to combat gang violence, and the country conditions

evidence does not compel the conclusion that law enforcement was willfully blind

3 to the gang violence he experienced. 8 U.S.C. § 1252(b)(4)(B). Therefore, we deny

this aspect of the petition for review.

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN

PART.

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