NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

MISAEL FUENTES VARGAS, AKA

Misael Fuentes,

Petitioner,

 v.

MERRICK B. GARLAND, Attorney

General,

Respondent.

No. 18-73277

Agency No. A208-515-569

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 7, 2023** 

Pasadena, California

Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges. 

Concurrence by Judge DESAI.

FILED

MAR 3 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* 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 Danny J. Boggs, United States Circuit Judge for the

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Misael Fuentes Vargas seeks review of an order of the Board of Immigration

Appeals (BIA) affirming the decision of an Immigration Judge (IJ) denying his

applications for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). Because we lack jurisdiction, we dismiss his petition for

review.1

The BIA found that Fuentes Vargas raised “a newly articulated social group

not presented before or analyzed by the Immigration Judge” to the BIA, namely

that of “members of his family” and “males bearing the last name of Fuentes.” In

making this determination, the BIA first stated that Fuentes Vargas “did not clearly

indicate the exact delineation of his proposed particular social group” before the

IJ.2 Fuentes Vargas asserts (in his opening brief on appeal) that his testimony to

the IJ “ma[d]e clear the basis for which the petitioner believed he was being

persecuted . . . the petitioner’s father and his first born son as the particular social

1

 Fuentes Vargas forfeited challenges to the agency’s denial of his asylum

and CAT claims by failing to raise them in his opening brief on appeal to this

court. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013).

2

 This statement makes clear that the BIA understood that Fuentes Vargas

had proposed a particular social group to the IJ. But see Concur 2 (suggesting that

the BIA may have “believed that Mr. Fuentes Vargas did not assert a social group

before the IJ at all”). We agree with the BIA that Fuentes Vargas’s testimony

before the IJ is not entirely clear. The clearest statement describing his particular

social group is: “I think the problem is just towards me and my mom. And because

I am the oldest, or the eldest son—yes, that.”

2
group.” Even if we agreed with his assertion that he clearly raised the social group

(of his father and his first born son) to the IJ, the assertion does not conflict with

the BIA’s conclusion that Fuentes Vargas did not rely on this particular social

group in his appeal to the BIA.

We defer to the BIA’s requirement that a petitioner must provide a

consistent and specific definition of the particular social group to properly raise it

to the BIA. Thus, in Honcharov v. Barr, we upheld the BIA’s decision that the

petitioner raised for the first time on appeal the social groups of “Ukrainian

businesses targeted for and subject to extortion who thereafter refuse to cooperate,”

“Ukrainian businessmen subject to extortion by gangs the government is unwilling

or unable to control,” and “victim witnesses to criminal enterprises which the

government is unwilling or unable to control,” even though the petitioner had

previously raised the similar social groups of “Ukrainian businessmen” and

“witness victim to crime” to the IJ. 924 F.3d 1293, 1295 (9th Cir. 2019) (per

curiam). We held that “the Board does not per se err when it concludes that

arguments raised for the first time on appeal do not have to be entertained.” Id. at

1297. Accordingly, we disagree with the concurrence that Fuentes Vargas

exhausted his claimed particular social group of his “father and his first born son,”

despite not specifically raising it to the BIA, because the BIA was “on notice” that

3
he was seeking relief on the grounds of “his relationship with his father.”3

 Concur

2. 

On appeal to this court, Fuentes Vargas now argues that he suffered

persecution because of his membership in the particular social group of his “father

and his [father’s] first born son.” This is a different particular social group than the

one raised to the BIA. Because Fuentes Vargas failed to exhaust this argument

before the BIA, we lack jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d

674, 677–78 (9th Cir. 2004). 

PETITION DISMISSED.

3

 The concurrence argues that Fuentes Vargas raised his membership in a

particular social group composed of his father and his father’s first-born son in his

brief to the BIA. Concur 2. However, that brief expressly states that Fuentes

Vargas is seeking relief on “on account of his membership in a particular social

group consisting of those belonging to the Fuentes family.”

4
1 

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 withholding 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 APPEALS
2 

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 belonging 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, its determination was error. I would find that 

any slight deviation 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. That is enough for exhaustion. See Figueroa v. Mukasey, 543 F.3d 
3

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 Cir. 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 socially 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 believe 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.