NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILANDER SALAZAR 

VASQUEZ; EVANS MATTHEW 

SALAZAR MUNGUIA; MARIA LUZ 

MUNGUIA SALAZAR; KEVIN 

EDUARDO SALAZAR MUNGUIA,

 Petitioners,

 v.

MERRICK B. GARLAND, Attorney 

General,

 Respondent.

No. 22-1214

Agency Nos.

A209-833-741

A209-833-742

A209-992-935

A209-992-936

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 4, 2023

Pasadena, California

Before: WARDLAW and BUMATAY, Circuit Judges, and BENCIVENGO, 

District Judge.

**

Filander Salazar Vasquez (“Salazar”), collectively with his wife, Maria Luz 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Cathy Ann Bencivengo, United States District Judge

for the Southern District of California, sitting by designation.

FILED

DEC 22 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-1214

Munguia Salazar (“Munguia”), and their two children, Kevin Eduardo Salazar 

Munguia and Evans Matthew Salazar Munguia, all natives and citizens of El 

Salvador, petition for review of a decision by the Board of Immigration Appeals 

(“BIA”) dismissing the family members’ appeal of an Immigration Judge’s (“IJ”) 

denial of their applications for asylum, withholding of removal, and protection 

under the Convention Against Torture (“CAT”) in this consolidated case. We have 

jurisdiction under 8 U.S.C. § 1252, and we deny in part and grant and remand the 

petition in part.

1. The agency did not err in denying Salazar’s application for asylum and 

withholding of removal based on his membership in the particular social groups 

(“PSGs”) “married Salvadoran males who are public sector employees” and 

“married Salvadoran males who are perceived to have access to information and 

resources because of their government employment.” Even assuming, without 

deciding, that the BIA abused its discretion in finding that Salazar forfeited his 

challenge to the IJ’s determination regarding past persecution and applied an 

improper legal standard when analyzing immutability, Salazar is ineligible for 

asylum or withholding of removal because the record is devoid of evidence that his 

employment-based PSGs are socially distinct. See Macedo Templos v. Wilkinson, 

987 F.3d 877, 882 (9th Cir. 2021) (citing Matter of M-E-V-G-, 26 I. & N. Dec. 

227, 237 (BIA 2014)).
3 22-1214

The reports and testimony Salazar provided do not show that members of his 

proposed PSGs are “set apart within [Salvadoran] society in some significant 

way.” Matter of M-E-V-G-, 26 I. & N. Dec. at 244. Rather, they show that public 

sector employees, like members of Salvadoran society at large, face general 

criminal violence when traveling or working in certain neighborhoods due to the 

general “insecurity that prevails in those sectors.” While we do not hold that 

Salazar’s employment-based PSGs are not cognizable as a matter of law, the 

evidence Salazar offers here is insufficient to compel the conclusion that Salazar’s 

PSGs are socially distinct in El Salvador. See Conde Quevedo v. Barr, 947 F.3d 

1238, 1243 (9th Cir. 2020).

2. The BIA did not err in concluding that Salazar failed to preserve his 

claim to relief based on political opinion. The BIA “has the authority to prescribe 

procedural rules that govern the proceedings before it, and procedural default rules 

are consistent with this authority.” Honcharov v. Barr, 924 F.3d 1293, 1296 (9th 

Cir. 2019) (per curiam). Although the BIA characterized the procedural default of 

Salazar’s political opinion claim as a “waiver” rather than a “forfeiture,” “[t]he 

terms waiver and forfeiture . . . often [are] used interchangeably by jurists and 

litigants,” and both require at least a threshold determination of whether the claim 

has been abandoned—intentionally or otherwise. Hamer v. Neighborhood Hous. 

Servs. of Chicago, 548 U.S. 17, 20 n.1 (2017). The BIA’s inadvertent use of the 
4 22-1214

term “waiver,” without more, does not suggest that the BIA applied an incorrect 

legal standard when it concluded that Salazar failed to preserve his political 

opinion claim.

In Honcharov, we “le[ft] it for another case to decide what standard of 

review we should apply to the Board’s decision to invoke [such] a default.” 924 

F.3d at 1297. We need not decide here which standard applies because even under 

de novo review, Salazar failed to preserve his political opinion claim. In his I-589 

Application for relief, Salazar checked the box labeled “Political Opinion” 

indicating that he sought protection on that ground. And Salazar testified at the 

removal hearing that his job occasionally afforded him “access to the city mayor” 

in areas that his employer, the National Sewer and Aqueduct Administration, 

serviced. Cf. Navas v. INS, 217 F.3d 646, 659 n.19 (9th Cir. 2000) (recognizing 

that persecution “of those who work for or with political figures [can] be on 

account of the political opinion of their employer even if the nature of their work 

for or with that person is not in itself political”). However, Salazar and Munguia 

testified that Salazar fears persecution based only on his perceived access to 

information; they did not testify or argue through counsel that any persecution was 

or would be on account of an actual or imputed political opinion held by Salazar or 

any public official with whom he worked. Absent any arguments or evidence 

supporting Salazar’s political opinion claim other than the I-589 checkbox, the 
5 22-1214

BIA correctly determined that Salazar forfeited the claim. 

3. In his opening brief, Salazar does not contest and therefore forfeits any 

challenge to the BIA’s determination that he did not raise the IJ’s denial of CAT 

protection on appeal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th 

Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are 

forfeited).

4. The agency erred by failing to address Munguia and the two children’s 

claims to asylum, withholding of removal, and protection under CAT based on 

their membership in the PSG “immediate family members of Filander Salazar 

Vasquez.” Ample testimony and arguments in the record before the IJ made it 

clear that the family members sought relief based on their membership in the 

family-based PSG. All three family members wrote in their I-589 Applications 

that they fear “be[ing] harmed by the people who were looking for [Salazar 

Vasquez].” At the removal hearing, Munguia testified about the threat her 15-

year-old son received that specifically mentioned her family, and counsel noted 

that the family members were diagnosed with PTSD after “suffer[ing] past 

persecution on account of their membership in a particular social group . . . as 

immediate family members of Filander Vasquez Salazar [sic].” While the agency 

is entitled to apply its own procedural default rules, it cannot invoke those rules to 

the effect of “ignor[ing] arguments raised by a petitioner entirely.” Honcharov, 
6 22-1214

924 F.3d at 1296 n.2 (internal quotation marks omitted). We therefore grant the 

petition in part and remand to the agency to consider the family members’ 

eligibility for relief in the first instance.

PETITION DENIED IN PART AND GRANTED AND REMANDED 

IN PART.

1 Each side shall bear its own costs.

1 We deny the petition as to Filander Salazar Vasquez without prejudice to 

any reconsideration by the agency or any claims to relief he may raise in the future.