Yessica Guerrero-Alfaro v. William Barr, U. S. Att ( 2020 )

Case: 19-60374 Document: 00515586640 Page: 1 Date Filed: 10/01/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 1, 2020
No. 19-60374
Summary Calendar Lyle W. Cayce
Clerk
Yessica Yesenia Guerrero-Alfaro,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 448 815
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Yessica Yesenia Guerrero-Alfaro, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
her appeal of an Immigration Judge’s (IJ) denial of: asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60374
In considering the BIA’s decision (and the IJ’s decision, to the extent
it influenced the BIA), our court reviews legal conclusions de novo and factual
findings for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511,
517–18 (5th Cir. 2012). Guerrero asserts: the BIA improperly adopted the
IJ’s finding that no extraordinary circumstances excused the late filing of her
application for asylum; her membership in the social group she originally
alleged to the IJ was sufficient to establish past persecution; and she is
entitled to withholding of removal based on her membership in a newly
purported social group. (Guerrero does not contend the BIA erred in
rejecting her request for relief under CAT—any such challenge is therefore
abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003)
(citation omitted).)
Guerrero does not dispute she untimely filed her application for
asylum more than one year after she last entered the United States. See 8
U.S.C. § 1158(a)(2)(B). Our court does not have jurisdiction to consider the
fact-intensive issue of whether the untimeliness of her application should be
excused. Zhu v. Gonzales, 493 F.3d 588, 595 (5th Cir. 2007) (“[W]e do not
have jurisdiction to review determinations of timeliness that are based on
findings of fact”).
Regarding Guerrero’s withholding of removal claim, she does not
challenge the conclusions of the IJ and BIA that the social group she originally
alleged to the IJ (“Salvadoran women who feared violence and delinquency
in their home country”) was not cognizable, and that she failed to show a
nexus between any persecution and her group membership. Because she
does not dispute the validity or correctness of these conclusions, she has
abandoned any claim of error. See Soadjede, 324 F.3d at 833.
We lack jurisdiction to consider Guerrero’s entitlement to
withholding based on her membership in her newly defined social group
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(“Salvadoran women who, despite their fear, are willing witnesses against
their persecutors but have been turned away by police”). An alien must
exhaust all administrative remedies available as of right before our court may
review a final order. 8 U.S.C. §§ 1252(a)(1), (d)(1). If an issue is asserted for
the first time on appeal to the BIA, it is not properly before the BIA and is
unexhausted. See Eduard v. Ashcroft, 379 F.3d 182, 195 n.14 (5th Cir. 2004)
(noting that, for the purposes of determining whether a claim was raised to
the IJ, “[i]t is irrelevant that Petitioners raised claims for [ ] relief before the
BIA”); see also Milanzi v. Holder, 397 F. App’x 984, 986 (5th Cir. 2010).
Guerrero did not present her membership in the newly purported social
group before the IJ; instead, she raised the issue for the first time on appeal
to the BIA. Accordingly, she did not exhaust administrative remedies. Roy
v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (“Failure to exhaust an issue
creates a jurisdictional bar as to that issue.”) (citation omitted).
DISMISSED IN PART and DENIED IN PART.
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