FILED NOT FOR PUBLICATION MAR 8 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RUBEN HUEZO-CEDILLOS, No. 19-70732 Petitioner, Agency No. A078-465-876 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 11, 2021 San Francisco, California Before: BERZON, CHRISTEN, and BADE, Circuit Judges. Ruben Huezo-Cedillos, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (BIA) order affirming, without opinion, an Immigration Judge’s (IJ) decision denying Huezo’s applications for withholding of removal and protection under the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and we dismiss the petition in part, deny in part, grant in part, and remand to the agency with instructions to grant CAT relief. Where “the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action.” Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir. 2006). “We review the [IJ’s] legal determinations de novo and its factual findings for substantial evidence.” Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). “Under the substantial evidence standard, we will uphold the agency’s decision ‘if the decision is supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” Id. (quoting Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th Cir. 2010)). “We will reverse the agency when the evidence in the record compels a reasonable factfinder to conclude that the agency’s decision is incorrect.” Id. at 1051–52 (citation, internal quotation marks, and alteration omitted). 1. Our jurisdiction to review removal orders is limited by the requirement that the petitioner “exhaust[] all administrative remedies available.” 8 U.S.C. § 1252(d)(1). “[T]he principle of exhaustion may exclude certain constitutional challenges that are not within the competence of administrative agencies to decide,” such as due process claims, “but only if they involve more 2 than ‘mere procedural error’ that an administrative tribunal could remedy.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (citation omitted). Huezo did not exhaust his argument that his due process rights were violated by the IJ’s failure to inform him in 2014 of his apparent eligibility for cancellation of removal, and we dismiss this portion of the petition for lack of jurisdiction. Id. at 677. 2. Huezo’s withholding of removal claim was premised on his membership in two proposed particular social groups: (1) “former members of the [gang] MS-13”; and (2) “[i]ndividuals with tattoos indicating their . . . former gang membership.” The IJ explained that “[t]he country conditions evidence in the record does not establish that ex-gang members, or those with tattoos that indicate membership in a gang, are singled out for persecution,” and determined that neither of these two proposed groups were cognizable. We conclude the IJ’s …
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