N O T FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C UIT

M ISAEL FUENTES VAR GAS, AKA M isa e l Fue n te s,

Pe t i tione r,

v. M ER R IC K B

. GAR LAND, Attorne y Ge ne ra l, R e sponde nt. No. 18-73277 Age n c y No. A208-515-569

M EM O R ANDUM *

On Pe tition for R e vie w of a n Orde r of the B oa rd of Im m igra tion Appe a ls Subm itte d Fe brua

ry 7, 2023 ** Pa sa de n a , C a l ifornia B e fore : B OGGS, * ** IKUTA, a nd DESAI, C irc uit Judge s. C onc urre nc e by

Judge DESAI. 

# FIL ED
MAR 3 2023 M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS

* This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by Ninth C irc uit R

ule 36-3.

* * The pa

ne l una nim ously c onc lude s this c a se is suita ble for de c ision without ora l a

rgum e nt. Se e Fe d. R . App. P. 34(a )(2).

* * * The Honora

ble Da nny J. B oggs, Unite d Sta te s C irc uit Judge for the U.S. C ourt of Appe a l s for the Sixth C irc uit, sitting by de signa t ion.M isa e l Fue nte s Va rga s se e ks re vie w of a

n orde r of the B oa

rd of Im m igra tion Appe a ls (B IA) a ffirm ing the de c ision of a n Im m igra tion Judge (IJ) de ny ing his

a pplic a tions for a sy lum , withholding of re m ova l, a nd re l ie f unde r the C o nve ntion Aga inst Torture (C A T). B e c a use we la c k jurisdic tion, we dism iss his pe tition for

re vie w. 1 The B IA found tha

t Fue n te s Va

rga s ra ise d

“ a ne wly a rtic ulate d soc ia l group not pre se nte d be fore or a

na ly z e d by

the Im m igra tion Judge ” to the B IA, nam e ly that of “ m e m be rs of his fa

m ily ” a nd “ m a le s be a ring the la st na m e of Fue nte s.” In

m a king this de te rm inat ion, the B IA first sta t e d tha t Fue nte s Va

rga s “ did not c le a rly indic a te the e x a c t de line a tion of his propose d pa rtic ula r soc ia l group” be fore the IJ. 2 Fue nte s Va

rga s a sse rts (in his ope ning brie f on a ppe a l) tha t his te stim ony

to the IJ “ m a [d] e c l e a r the ba sis for whic h the pe titione r be lie ve d he wa s be ing pe rse c ute d . . . the pe t itione r’ s fa the r a nd his first born son a s the pa rtic ula r soc ia l

1 Fue nte s Va

rga s forfe ite d c ha lle nge s to the a ge nc y ’ s de nia l of his a sy lum a nd C AT c la im s by fa iling to ra ise the m in his ope ning brie f on a

ppe a l to this c ourt. Se e Lope

z -Vasque z v . Holde r , 706 F.3d 1072, 1079–80 (9th C ir. 2013).
2 This sta t e m e nt m a ke s c le a r tha t the B IA unde rstood tha t Fue n te s Va

rga s ha d propose d a

pa rtic ula r soc ia l group to the

IJ. B ut se e Conc ur 2 (sugge s ting tha t the B IA m a y

ha v e “ be lie ve d tha

t M r. Fue n te s Va

rga s did not a sse rt a

soc ia l group be fore the IJ a t all ” ). W e a gre e with the B IA that Fue n te s Va rga s ’ s te stim ony be fore the IJ is not e ntire ly c le a r. The c l e a re st sta

te m e nt de sc ribing his pa

rtic ula r soc i a l group is: “ I think the proble m is just towa

rds m e a nd m

y m om . And be c a

use I a m the olde st, or the e lde st son— y e s, tha t.” 2group.” Eve n if we a gre e d with his a sse rtion tha t he c le a rly

ra ise d the soc ia l group (of his fa the r a nd his first born son) to the IJ, the a s se rtion doe s not c onflic t with the B IA’ s c onc lusion tha

t Fue nte s Va

rga s did not re ly

on this pa

rtic ula r soc i a l group in his a

ppe a l to the B IA. W e de fe r to the B IA’ s re quire m e nt tha t a pe titione r m

ust provide a
c onsiste n t a

nd spe c ific de finition of the pa rtic ula r soc ia l group to prope rly ra ise it to the B IA. Thus, in Honc harov v . Barr , we uphe ld the B IA’ s de c ision tha t the pe titione r ra ise d

for the first tim e on a

ppe a l the soc ia l groups of “ Ukra inia n busine sse s ta

r ge t e d for a

nd subje c t to e xtortion who the re a fte r re fuse to c oope ra te ,”

“ Ukra inia n busine ssm e n subje c t to e xtortion by ga ngs the gove rnm e nt is unwilling

or una ble to c ontrol,” a nd “ vic tim witne sse s to c rim ina l e nte rprise s whic h the gove rnm e nt is unwilling or una ble to c o ntrol,” e ve n though the pe titione r ha d pre v iously

ra ise d the sim ila

r soc ia l groups of “ Ukra i nia n busine s sm e n” a nd

“ witne ss vic tim

to c rim e ” to the IJ. 924 F .3d 1293, 1295 (9th C ir . 2019) (pe r
c uriam ). W

e he ld tha t “ the B o a rd doe s not pe r se e rr whe n it c onc lude s tha t

a r gum e nts ra ise d for the first tim e on a p pe a l do not ha

ve to be e nte rta ine d .” Id. a t 1297. Ac c ordingly

, we disa gre e with the c onc urre nc e tha t Fue nte s V

a r ga s
e xha uste d his c la im e d pa

rtic ula r soc ia l group of his “ fa the r a nd his first born son,” de spite not spe c ific a lly

ra ising it to the

B IA, be c a

use the B IA wa s “ on notic e ” tha t

3he wa s se e king re l ie f on the grounds of “ his re la tionship with his fa the r .” 3 Conc ur 2. On a

ppe a l to this c ourt, Fue nte s V a r ga s now a

r gue s tha t he suf fe re d pe rse c ution be c a

use of his m e m

be rship in the pa

rtic ula r soc ia l group of his “ fa the r
a nd his [fa

the r’ s] first born son.” This is a dif fe re nt pa rtic ula r soc ia l group tha

n the

one ra ise d

to the B IA. B e c a

use Fue nte s V

a r ga s fa ile d to e xha

ust this a r gum e nt be fore the B IA, we la c k jurisdic tion to re vie w it. Se e Barr on v . Ashc r oft , 358 F .3d 674, 677–78 (9th C ir . 2004). PE T IT IO N DISM ISSE D.

3 The c onc urre n c e a rgue s tha t Fue nte s Va

rga s ra ise d

his m e m be rship in a pa rtic u la r soc ia l group c o m

pose d of his fa

the r a nd his fa the r’ s first-born son in his brie f to the B IA. Conc ur 2. Howe ve r, tha t brie f e xpre ssly

sta te s tha t Fue nte s Va rga s is se e king re lie f on “ on a c c ount of his m e m be rship in a

pa rtic ula r soc ia l group c onsisting of those

be longing to the

Fue nte s fa m ily .” 41 Fuentes Vargas v. Garland , No. 18

- 73277 DESAI, Circuit Judge, concurring: I write separately because I disagree that Mr. Fuentes Vargas failed to exhaust his claim for withholding of removal and that we lack jurisdiction to decide his petition. The record reflects that Mr. Fuentes Vargas presented the same social group to the IJ , BIA, and this Court

. I would therefore hold that Petitioner exhausted his claim for withhold ing of removal and that we have jurisdiction to decide his petition , even though doing so would not change the outcome of this case because I would deny relief on the basis that the articulated social group is not cognizable under BIA and Ninth Circuit precedent. A “ petitioner is not limited to raising issues in exactly the same terms as they were presented [previously].” See Pagayon v. Holder , 675 F.3d 1182, 1188 (9th Cir. 2011). A side

- by

- side comparison of the language in the record makes clear that Mr. Fuentes Vargas raised the same particular social group to the IJ, BIA, and this Court: 

# FILED
MAR 3 2023 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 IJ BIA Court

• “[F]amilial relationship to his father.”
• “I believe the man who killed my father . . . will also kill me because I am the son of the man he killed.”
• “I believe I will be killed because I am related to the man Rigoberto Cortez kill[ed]. I am his son.” • “[T]hose belong ing to the Fuentes family.”
• “[M]embers of [his] family, particularly the family’s eldest son.”
• “[R]espondent’s relationship to his father.” • “[His] father and his first born son.”
• “[T]he petitioner’s immediate family is being targeted.”
• “Mr. Cortez was targeting the petitioner due to his kinship with his father.”

Despite this, the BIA stated that Mr. Fuentes Vargas presented a “new” social group to the Board and that his claim was therefore unexhausted. To the extent that the BIA believed that Mr. Fuentes Vargas did not assert a social group before the IJ at all , leading it to conclude that any particular social group presented to it was new and unexhausted, or that it found that Mr. Fuentes Vargas raised different social groups before the IJ and BIA, i ts determination was error . I would find that

a ny slight devia tion in the Petitioner’s asserted group does not bar his claims. Mr. Fuentes Vargas has always argued that he fears persecution based on his relationship with his father, so the BIA was on notice that he was seeking relief on those grounds. T hat is enough for exhaustion. See Figueroa v. Mukasey , 543 F.3d3 487 , 492 (9th Cir. 2008)

. I would therefore hold that we have jurisdiction to consider Mr. Fuentes Vargas’ s claim for withholding of removal

. 1 Though Mr. Fuentes Vargas exhausted his claims, he did not establish eligibility for withholding of removal because he did not present evidence proving that his proposed social group is cognizable. A particular social group is cognizable if it is (1) “composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question.” Diaz

- Torres v. Barr , 963 F.3d 976, 980 (9th Ci r. 2020). Whether a group is socially distinct is considered from the view of society in general, not just from the perspective of the persecutor. Id. Here, Mr. Fuentes Vargas has not shown that his familial relationship to his father is perceived as a soc ially distinct group in Mexico. The only evidence Mr. Fuentes Vargas identifies to support this claim shows that his family and his persecutor know that he is a member of his family. That is not enough to prove social distinction. Id. at 980

– 81. While I be lieve Mr. Fuentes Vargas properly exhausted his claim for withholding of removal and that we have jurisdiction to decide his petition, I would deny his petition for review resulting in the same outcome set forth in the majority memorandum disposition.

1 I agree that Mr. Fuentes Vargas forfeited his asylum and CAT claims by failing to raise them on appeal.