Case: 21-588, 04/18/2023, DktEntry: 52.1, Page 1 of 5 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JESSE PEREZ-MAR, No. 21-588 Petitioner, Agency No. A201-906-126 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 12, 2023 Seattle, Washington Before: McKEOWN, BYBEE, and DESAI, Circuit Judges. Jesse Perez-Mar, a citizen of Mexico, seeks review of the Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Case: 21-588, 04/18/2023, DktEntry: 52.1, Page 2 of 5 dismiss in part and deny in part the petition. 1. Asylum and Withholding of Removal. We may review a final order of removal only if the noncitizen “has exhausted all administrative remedies available . . . as of right.” Id. § 1252(d)(1). If a petitioner fails to present a claim in the administrative proceedings below, we lack subject matter jurisdiction to consider the merits of that legal claim. Pagayon v. Holder, 675 F.3d 1182, 1188 (9th Cir. 2011). Here, the IJ concluded that Perez-Mar failed to establish a nexus between the threat of persecution and his proposed particular social groups (PSGs). On appeal to the BIA, Perez-Mar mentioned the IJ’s nexus determination in the facts section of his brief. But his argument section neglected to address any of the IJ’s nexus findings, nor did he argue anywhere in his brief that those findings were incorrect. The BIA found that Perez-Mar failed to meaningfully challenge the IJ’s nexus conclusion and therefore considered the issue waived. Perez-Mar nevertheless asserts that his argument to the BIA that his proposed PSGs were legally cognizable was sufficient to raise the nexus issue under Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004). We disagree. “[T]he inquiry into whether a group is a ‘particular social group’ is distinct from the inquiry into the ‘nexus’ requirement, which considers whether a person is 2 Case: 21-588, 04/18/2023, DktEntry: 52.1, Page 3 of 5 persecuted ‘on account of’ membership in a particular social group.” Reyes v. Lynch, 842 F.3d 1125, 1132 (9th Cir. 2016) (citation omitted). Arguments about PSG cognizability, therefore, did not put the BIA on notice that Perez-Mar was appealing the unmentioned nexus determination. Furthermore, we have consistently held that the core requirement of exhaustion is that “the agency ha[ve] an opportunity to pass” on the relevant issue. Zhang, 388 F.3d at 721; see also Gonzalez-Castillo v. Garland, 47 F.4th 971, 980–81 (9th Cir. 2022); Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008). A fleeting mention of the IJ’s nexus determination in the facts section of Perez-Mar’s BIA brief does not satisfy the exhaustion …
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