NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSCAR MAYA VENEGAS, No. 18-70836 Petitioner, Agency No. A047-729-123 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 17, 2021** Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. Oscar Maya Venegas, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Our jurisdiction is * 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). governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, including determinations regarding social distinction. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIA’s interpretation of the governing statutes and regulations. Id. We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s determination that Maya Venegas failed to establish his proposed social group based on his cooperation with law enforcement is socially distinct. See Conde Quevedo, 947 F.3d at 1243 (substantial evidence supported the agency’s determination that petitioner’s proposed social group was not cognizable because of the absence of society- specific evidence of social distinction). Thus, the BIA did not err in concluding that Maya Venegas did not establish membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). In his opening brief, Maya Venegas does not challenge the agency’s determination that his proposed returnee-based social group was not 2 18-70836 cognizable. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are waived). To the extent Maya Venegas raises a new social group for the first time in his opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Thus, Maya Venegas’s withholding of removal claim fails. Substantial evidence supports the agency’s denial of CAT relief because Maya Venegas failed to show it is more likely than not he would be tortured by ...
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