NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 21-1291 __________ NELSON EDGARDO CRUZ-IRAHETA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES __________ On Appeal from the Board of Immigration Appeals Immigration Judge: Lisa de Cardona (Agency No. A206-769-158) __________ Submitted Under Third Circuit L.A.R. 34.1(a) on December 13, 2022 Before: RESTREPO, MCKEE, SMITH, Circuit Judges (Filed: June 1, 2023) __________ OPINION* __________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RESTREPO, Circuit Judge. I. Introduction Petitioner, Nelson Edgardo Cruz-Iraheta, appeals the Immigration Judge’s (“IJ”) and Board of Immigration Appeals’ (“BIA”) denial of asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. At the time of the events, Petitioner was a student in El Salvador and had to commute by bus across rival gang territory. Petitioner was beaten on two occasions by individuals he believes were members of the Barrio 18 gang. Petitioner argues that the Agency erred in concluding that his proposed particular social group (“PSG”), “Salvadoran male students that oppose gang activity,” was not legally cognizable and that he had not suffered past persecution. For the foregoing reasons, we deny the petition for review. II. Jurisdiction The BIA had jurisdiction pursuant to 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b). This Court’s appellate jurisdiction for judicial review of a final order of removal is premised on 8 U.S.C. § 1252(a). See Shehu v. U.S. Att’y Gen., 482 F.3d 652, 656 (3d Cir. 2007) (holding that “denial . . . of [an] applicant’s petition for asylum, withholding of removal, and relief under the CAT constitutes ‘a final order of removal’ within the meaning of the statute, as the [applicant] is entitled to no further process before deportation”). Petitioner filed a timely petition for review. 8 U.S.C. § 1252(b)(1). III. Summary of the Issues The issues on appeal are whether the IJ and BIA erred in concluding that Petitioner (1) did not establish a legally cognizable PSG, and (2) that Petitioner did not demonstrate 2 he suffered past persecution or has a well-founded fear of future persecution based on his proposed PSG. IV. Standard of Review When the BIA adopts and affirms the IJ’s decision, as it did here, the Court reviews both decisions. See Sandie v. U.S. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). Whether a petitioner’s proposed PSG is legally cognizable presents a “mixed question of law and fact, since the ultimate legal question of cognizability depends on underlying factual questions concerning the group and the society of which it is a part.” S.E.R.L. v. U.S. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018). Thus, we must use de novo review to determine “the ultimate legal conclusion as to the existence of a particular social group[.]” Id. On the other hand, we review underlying factual findings applying the highly deferential “substantial evidence” standard, id. (citing Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003)), which …
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