NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRAIS CONTRERAS 

DELGADO; MAURICIO VIVEROS 

CONTRERAS; RODRIGO VIVEROS 

CONTRERAS,

Petitioners,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-1762

Agency Nos.

A209-384-855

A209-384-856

A209-384-857

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 26, 2024**

Seattle, Washington

Before: WARDLAW and MILLER, Circuit Judges, and CORLEY, District 

Judge.

***

Irais Contreras Delgado, a native and citizen of Mexico, petitions for 

* 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 Jacqueline Scott Corley, United States District Judge

for the Northern District of California, sitting by designation.

FILED

APR 2 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-1762

review (together with her sons, Mauricio Viveros Contreras and Rodrigo Viveros 

Contreras) of a decision of the Board of Immigration Appeals dismissing her

appeal from an immigration judge’s denial of her applications for asylum, 

withholding of removal, and relief under the Convention Against Torture (CAT). 

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

We review the factual findings underlying the Board’s determination for 

substantial evidence. Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). Under 

that standard, we must uphold the agency’s findings unless the record compels a 

contrary conclusion. See id.; 8 U.S.C. § 1252(b)(4)(B).

1. To establish eligibility for asylum, an applicant must show a likelihood 

of “persecution or a well-founded fear of persecution on account of race, religion, 

nationality, membership in a particular social group, or political opinion.” 8 U.S.C. 

§ 1101(a)(42)(A). To establish eligibility for withholding of removal, an applicant

must make the same showing by a “clear probability.” Alvarez-Santos v. INS, 332 

F.3d 1245, 1255 (9th Cir. 2003). Contreras advances arguments based on three 

protected grounds: membership in a particular social group, religion, and political 

opinion.

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 
3 22-1762

within the society in question.’” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 

2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)).

Contreras asserted membership in two putative particular social groups: “witnesses 

who would testify to criminal acts by the cartels” and “[f]amily members of 

witnesses who would testify to criminal acts by the cartels.” 

As an initial matter, Contreras argues that the agency should have 

considered “family membership” as a particular social group. Although Contreras 

might have had a viable claim based upon her membership in the family of her 

husband, who was abducted and held for ransom by the cartel, Contreras’s prior 

counsel did not articulate this particular social group to the immigration judge. To 

the extent she seeks to argue this new particular social group now, it is 

unexhausted and we cannot consider it. See Umana-Escobar v. Garland, 69 F.4th 

544, 550 (9th Cir. 2023) (exhaustion, although non-jurisdictional, is “‘mandatory’ 

in the sense that a court must enforce the rule if a party ‘properly raises it.’”) 

(quoting Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam)); SantosZacaria v. Garland, 598 U.S. 411, 423 (2023).

Whether a social group is distinct enough to be cognizable is evaluated 

based on an evidence-based inquiry. See Pirir-Boc v. Holder, 750 F.3d 1077, 1084 

(9th Cir. 2014). Although Contreras now advances a variety of legal arguments as 

to social distinction, she has not identified any evidence in the record to contradict 
4 22-1762

the immigration judge’s social-distinction finding. See Aguilar-Osorio v. Garland, 

991 F.3d 997, 999 (9th Cir. 2021) (explaining that a proposed particular social 

group of “witnesses who . . . could testify against gang members based upon what 

they witnessed,” is not cognizable because it is “not ‘discrete’ and lacks ‘definable

boundaries.’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 239)), abrogated on 

other grounds by Wilkinson v. Garland, No. 22-666, 2024 WL 1160995 (U.S. Mar. 

19, 2024). Nor does she identify any evidence to call into question the immigration 

judge’s finding that even if the proposed social groups were cognizable, she could 

not show that she is in fact a member of them. Therefore, the Board did not err in 

rejecting her claim of entitlement to relief premised on membership in a particular 

social group. 

Contreras also argues that the Board erred in evaluating her claim of 

persecution based on religion. As the Board noted, Contreras did not present that 

claim to the immigration judge and the Board is not required to consider a

protected ground raised for the first time on appeal. See Honcharov v. Barr, 924 

F.3d 1293, 1296 (9th Cir. 2019) (per curiam) (holding “that the Board may apply a 

procedural default rule to arguments raised for the first time on appeal”).

While Contreras’s son, Mauricio Viveros Contreras—who is also a 

petitioner here—testified that he is “quite religious” and that he refused the 

invitations of the gangs because of his religion, he did not testify that he 
5 22-1762

experienced any persecution or feared persecution on account of his religious 

beliefs. Moreover, Mauricio’s I-589, which was completed with the assistance of 

petitioners’ previous counsel, did not include religious persecution as one of the 

potential grounds for asylum relief. Religion was also excluded from his mother’s 

and brother’s I-589 forms. Petitioners had an attorney at the proceedings before the 

immigration judge, and, at the hearing, that attorney failed to amend any I-589 

form to include religious persecution as a basis for relief. The attorney also failed 

to ask Mauricio any follow-up questions or argue that the immigration judge

should consider religious persecution as a ground for relief once Mauricio 

mentioned his religious beliefs. Because Mauricio did not testify or argue through 

counsel that he has been persecuted or fears persecution on account of his religious 

beliefs, the Board correctly determined that Mauricio, as well as his mother and 

brother, did not present that claim to the immigration judge. 

Finally, Contreras argues the Board erred in evaluating her claims of 

persecution based on political opinion. The immigration judge determined that 

Contreras had not established any political opinion that gave rise to actual or feared 

persecution, and the Board affirmed that factual finding. See Sanjaa v. Sessions, 

863 F.3d 1161, 1164–65 (9th Cir. 2017). Contreras identifies no evidence in the 

record that compels a contrary conclusion.

2. To establish eligibility for CAT relief, an applicant must establish that it 
6 22-1762

is more likely than not that she would suffer torture “by, or at the instigation of, or 

with the consent or acquiescence of, a public official or other person acting in an 

official capacity.” 8 C.F.R § 1208.18(a)(l); see Gutierrez-Alm v. Garland, 62 F.4th 

1186, 1201 (9th Cir. 2023). Contreras argues that the Board erred by engaging in 

improper factfinding as to whether the harm she had suffered constituted torture. 

But she does not meaningfully challenge the Board’s determination that she failed 

to establish government acquiescence in any harm. See Garcia-Milian v. Holder, 

755 F.3d 1026, 1033 (9th Cir. 2014). That failure is dispositive of her CAT claim.

PETITION DENIED.