NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KELVIN OSVALDO MORENO- No. 18-72822 NAVARRETE, AKA Kelvin Moreno- Navarrete, Agency No. A099-651-503 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 11, 2020** San Francisco, California Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges. Petitioner Kelvin Moreno-Navarrete (Moreno-Navarrete) petitions for review of the order of the Board of Immigration Appeals (BIA). The BIA affirmed the * 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. decision of the immigration judge (IJ) denying Moreno-Navarrete’s applications for withholding of removal under the Immigration and Nationality Act (INA) and relief under the Convention Against Torture (CAT). This court has jurisdiction under 8 U.S.C. § 1252. Because the parties are familiar with the facts, we do not recount them here, except as necessary to provide context to our ruling. We DENY the petition for review and affirm the BIA’s decision. The BIA determined that, because Moreno-Navarrete did not raise the argument before the IJ, he waived his assertion that “he is a member of a cognizable particular social group defined as a person who reported gang members to the police and, as a result of which, the gang members have been put in jail and now seek revenge against him.” Moreno-Navarrete does not dispute that he waived this issue. Thus, the basis for Moreno-Navarrete’s withholding claim is waived. See Kumar v. Gonzales, 444 F.3d 1043, 1056 (9th Cir. 2006); Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003). Even if not waived, the purported social group is not cognizable. In Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013), we ruled that the BIA erred when “it failed to consider significant evidence that Salvadoran society recognizes the unique vulnerability of people who testify against gang members in criminal proceedings, because gang members are likely to target these individuals as a group.” Id. at 1092. In addition to explicitly noting that testimony in court 2 formed the basis of the particular social group, we cited the petitioner’s evidence about how “the Salvadoran legislature enacted a special witness protection law in 2006 to protect people who testify against violent criminal elements . . . in Salvadoran court.” Id. In contrast, Moreno-Navarrete bases his purported social group on the fact that he “[c]all[ed] the police on gang members resulting in two arrests.” Moreno-Navarrete never asserts that he testified in open court against such gang members. Therefore, applying Henriquez-Rivas, Moreno-Navarrete has not asserted that he is a member of a particular social group for ...
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