Jairo Aparicio v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED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.”
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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.
3