Jairo Aparicio v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2021
• Docket: 20-71000
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAIRO GUARDADO APARICIO, No. 20-71000

Petitioner, Agency No. A215-855-186

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 21, 2021** Pasadena, California

Before: R. NELSON and VANDYKE, Circuit Judges, and SCHREIER,*** District Judge.

Jairo Aparicio, a citizen of El Salvador, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s denial

* 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 Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. of his applications for asylum and withholding of removal under the Immigration

and Nationality Act, and deferral of removal under the Convention Against Torture

(“CAT”). “We have jurisdiction under 8 U.S.C. § 1252 to review final orders of

removal,” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and dismiss as

to the asylum and CAT claims and deny the withholding claim.

Aparicio first argues the BIA erred in rejecting his asylum application as

untimely. See 8 U.S.C. § 1158(a)(2)(B). We lack jurisdiction to hear this

argument because we “do not have jurisdiction to review unexhausted claims.”

Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013). The BIA held

that Aparicio did not “address[] the application of the 1-year bar to his asylum

application” in his appeal, and that the “issue ha[d] been waived and abandoned.”

We accordingly reject Aparicio’s argument for an exception to the one-year filing

deadline based on changed country conditions.

“There is no statutory time limit for bringing a petition for withholding of

removal,” however. Himiri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004) (citing 8

U.S.C. § 1231(b)(3)). Aparicio argues he qualifies for withholding of removal

because his “life or freedom would be threatened” in El Salvador because of his

“membership in a particular social group,” 8 U.S.C. § 1231(b)(3)(A), “Salvadorans

who have demonstrated a resistance to gang demands, particularly gang extortion,

and have consequently been recognized as gang targets.”

2 We have continually rejected the notion that those “who are targeted for

gang recruitment but refuse because they disagree with the gang’s criminal

activities,” have an “anti-gang opinion,” Barrios v. Holder, 581 F.3d 849, 854 (9th

Cir. 2009) (abrogated on other grounds), or who “renounce[] their gang

membership,” Reyes v. Lynch, 842 F.3d 1125, 1129 (9th Cir. 2016), constitute a

“particular social group.” Although “those who have publicly testified against

gang members” can constitute a social group, Aparicio does not fall within this

category. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013). We

therefore deny Aparicio’s withholding claim.

Aparicio finally argues the BIA erred in denying him relief under CAT.

Again, we lack jurisdiction to consider his argument. Aparicio failed to

“effectively allege[] any error” to the BIA, as his “general statements of error”

were “unsupported by specific factual” references, and thus have not been

exhausted. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819–20 (9th Cir. 2003).

PETITION DENIED IN PART AND DISMISSED IN PART.