NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE FUNES-CARRILLO, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71056 

Agency No. A076-666-305 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges. 

Jorge Funes-Carrillo, a native and citizen of Guatemala, petitions for review 

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an 

immigration judge’s (“IJ”) decision denying his application for withholding of 

removal and relief under the Convention Against Torture (“CAT”). Our

* 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).

FILED

MAY 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-71056 

jurisdiction is governed by 8 U.S.C. § 1252. We review de novo the legal question 

of whether a particular social group is cognizable, except to the extent that 

deference is owed to the BIA’s interpretation of the governing statutes and 

regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We 

review for substantial evidence the agency’s factual findings. Id. at 1241. We 

deny in part and dismiss in part the petition for review.

The BIA did not err in declining to consider Funes-Carrillo’s arguments

regarding a family-based particular social group that were raised for the first time 

to the BIA. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (BIA did 

not err in declining to consider a particular social group raised for the first time on 

appeal); see also Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 191 (BIA 2018) 

(an applicant “has the burden to clearly indicate the exact delineation of any 

particular social group(s) to which she claims to belong” (internal quotation marks 

and citation omitted)). 

The BIA did not err in concluding that Funes-Carrillo failed to establish 

membership in a cognizable particular social group based on being victimized by 

gangs. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order 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 20-71056 

within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 

237 (BIA 2014))); see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 

2020) (“[A] particular social group must exist independently of the harm 

asserted . . . .”). 

To the extent Funes-Carrillo raises a new particular social group in his 

opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 

674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented 

to the agency).

Thus, Funes-Carrillo’s withholding of removal claim fails. 

Substantial evidence supports the agency’s denial of CAT relief because 

Funes-Carrillo failed to show it is more likely than not he would be tortured by or 

with the consent or acquiescence of the government if returned to Guatemala. See 

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). 

The temporary stay of removal remains in place until issuance of the 

mandate. The motion for a stay of removal is otherwise denied. 

PETITION FOR REVIEW DENIED in part; DISMISSED in part.