Eber Rivera-Jimenez v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EBER ODAHIR RIVERA-JIMENEZ, No. 10-70010
Petitioner, Agency No. A098-592-796
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 11, 2014**
Pasadena, California
Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges.
Eber Odahir Rivera-Jimenez (“Rivera-Jimenez”), a native of Honduras,
petitions for review of a decision by the Board of Immigration Appeals (“BIA”)
denying his motion to reconsider a May 28, 2009 decision affirming an
Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and protection under the Convention Against Torture (CAT). Reviewing
the BIA’s denial of the motion to reconsider for abuse of discretion, Ghahremani v.
Gonzales, 498 F.3d 993, 997 (9th Cir. 2007), we deny the petition for review.
Rivera-Jimenez argues that the BIA abused its discretion in conducting an
independent analysis of Rivera-Jimenez’s social group claim. This argument is
without merit. The BIA is permitted to review de novo questions of law in appeals
from the decision of an IJ. 8 C.F.R. § 1003.1(d)(3)(ii); Brezilien v. Holder, 569
F.3d 403, 412 n.3 (9th Cir. 2009). Where the BIA conducts a de novo review,
“[a]ny error committed by the IJ will be rendered harmless by the Board’s
application of the correct legal standard.” Ghaly v. INS, 58 F.3d 1425, 1430 (9th
Cir. 1995). Here, the BIA acted well within its authority to review Rivera-
Jimenez’s social group claim de novo and did not abuse its discretion in denying
Rivera-Jimenez’s motion to reconsider on this ground.
Rivera-Jimenez also argues for the first time on appeal that the IJ and BIA
erred in failing to review his claim of past persecution from the perspective of a
child, as required by Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir.
2007). Although Rivera-Jimenez was a minor when he was allegedly persecuted,
he failed to raise this argument before the BIA when he filed his motion to
reconsider. Accordingly, Rivera-Jimenez has not exhausted this legal claim and
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the court is without jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); see also
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (holding there is no
jurisdiction to review legal claims not presented by the petitioner before the BIA).
PETITION DENIED.
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