FILED NOT FOR PUBLICATION MAR 3 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MISAEL FUENTES VARGAS, AKA No. 18-73277 Misael Fuentes, Agency No. A208-515-569 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 7, 2023** Pasadena, California Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges. Concurrence by Judge DESAI. * 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. Misael Fuentes Vargas seeks review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ) denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because we lack jurisdiction, we dismiss his petition for review.1 The BIA found that Fuentes Vargas raised “a newly articulated social group not presented before or analyzed by the Immigration Judge” to the BIA, namely that of “members of his family” and “males bearing the last name of Fuentes.” In making this determination, the BIA first stated that Fuentes Vargas “did not clearly indicate the exact delineation of his proposed particular social group” before the IJ.2 Fuentes Vargas asserts (in his opening brief on appeal) that his testimony to the IJ “ma[d]e clear the basis for which the petitioner believed he was being persecuted . . . the petitioner’s father and his first born son as the particular social 1 Fuentes Vargas forfeited challenges to the agency’s denial of his asylum and CAT claims by failing to raise them in his opening brief on appeal to this court. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013). 2 This statement makes clear that the BIA understood that Fuentes Vargas had proposed a particular social group to the IJ. But see Concur 2 (suggesting that the BIA may have “believed that Mr. Fuentes Vargas did not assert a social group before the IJ at all”). We agree with the BIA that Fuentes Vargas’s testimony before the IJ is not entirely clear. The clearest statement describing his particular social group is: “I think the problem is just towards me and my mom. And because I am the oldest, or the eldest son—yes, that.” 2 group.” Even if we agreed with his assertion that he clearly raised the social group (of his father and his first born son) to the IJ, the assertion does not conflict with the BIA’s conclusion that Fuentes Vargas did not rely on this particular social group in his appeal to the BIA. We defer to the BIA’s requirement that a petitioner must provide a consistent and specific definition of the …
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