FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OSMAN ALFREDO AGUILAR-OSORIO, No. 19-73000 Petitioner, Agency No. v. A079-034-571 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 14, 2020 * San Francisco, California Filed March 15, 2021 Before: Mary M. Schroeder, William A. Fletcher, and Lawrence VanDyke, Circuit Judges. Per Curiam Opinion; Dissent by Judge VanDyke * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 AGUILAR-OSORIO V. GARLAND SUMMARY ** Immigration The panel granted in part, dismissed in part, and denied in part, Osman Alfredo Aguilar-Osorio’s petition for review of the Board of Immigration Appeals’ denial of his motion to terminate or remand proceedings, and his application for withholding of removal and protection under the Convention Against Torture, and remanded. The panel rejected as foreclosed by circuit precedent Aguilar-Osorio’s argument that jurisdiction never vested with the immigration judge because his Notice to Appear did not include the date and time of his hearing. The panel concluded that it lacked jurisdiction to consider Aguilar- Osorio’s argument, raised for the first time to this court, that he never received his Notice of Hearing. Because the court lacks jurisdiction to review the merits of the Board’s discretionary decision to deny cancellation of removal based on hardship, the panel concluded that it lacked jurisdiction to consider the Board’s denial of Aguilar- Osorio’s motion to remand to seek cancellation of removal based on the alleged “exceptional and extremely unusual hardship” his removal would cause his mother, a legal permanent resident. Noting that Aguilar-Osorio argued that this court had jurisdiction to review whether the Board violated his due process rights by failing to consider the relevant evidence, the panel concluded that there was ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. AGUILAR-OSORIO V. GARLAND 3 nothing in the record to indicate that there was relevant evidence the Board failed to consider in making its hardship decision. Regarding Aguilar-Osorio’s petition for withholding of removal, the panel agreed with the Board that Aguilar- Osorio’s proposed social group comprised of “witnesses who … could testify against gang members based upon what they witnessed” was not “discrete” and lacked “definable boundaries.” The panel also concluded that, unlike the particular social group of Salvadoran witnesses who testified in open court against gang members that the court deemed cognizable in Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013), Aguilar-Osorio failed to show that his proposed group was socially recognizable and distinct. Because Aguilar-Osorio failed to establish membership in a cognizable social group, the panel held that he was ineligible for withholding of removal. With respect to CAT, the panel held that substantial evidence supported the Board’s determination that Aguilar- Osorio failed to establish that past torture occurred with the consent or acquiescence of a public official …
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