Pablo Iraheta v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO REMBERTO IRAHETA, AKA No. 11-70000
Alfaro Iraheta, AKA Remberto Pablo
Iraheta, AKA Pablo Remberto, Agency No. A095-012-260
Petitioner,
MEMORANDUM*
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2013**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and WOOD, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Kimba M. Wood, Senior United States District Judge
for the Southern District of New York, sitting by designation.
Pablo Iraheta, a native of El Salvador, petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of various claims for relief from removal.
The petition will be denied in part and dismissed in part.
1. Iraheta first argues that the BIA erroneously barred his asylum claim
as untimely. He concedes that his application was filed outside of the one-year
period for filing an asylum claim, but he asserts that the time bar should be excused
due to extraordinary circumstances. See 8 U.S.C. § 1158(a)(2). We “may review
the agency’s application of the changed or extraordinary circumstances exception
to undisputed facts.” Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011).
Iraheta appears to argue that he delayed filing for asylum because he thought – in
part due to alleged immigration consultant fraud – that his pending application for
Temporary Protected Status (“TPS”) would afford him relief more quickly. But, as
the BIA recognized, even assuming the TPS application could effectively toll the
limitations period, Iraheta filed for TPS after the period had expired. Accordingly,
the BIA’s time bar ruling was supported by substantial evidence.
2. The BIA also properly denied Iraheta’s application for withholding of
removal. That application centered on Iraheta’s allegation that he had been
persecuted in El Salvador because he resisted efforts to recruit him into the Mara
Salvatrucha gang. But in a nearly identical context, we held that “young Honduran
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men who have been recruited by the MS-13, but who refuse to join” do not qualify
as a particular social group. See Ramos-Lopez v. Holder, 563 F.3d 855, 858 (9th
Cir. 2009) (granting deference to Matter of S-E-G, 24 I & N Dec. 579 (BIA
2008)).1 In other words, we have already rejected the theory of persecution that
Iraheta presses in this petition.
Nor does the United Nations High Commissioner on Refugees’ March 2010
Guidance Note2 demand a different result. Such statements can have persuasive
force, but “[i]f the Attorney General’s interpretation is permissible in light of the
statute’s text, structure and purpose, we must defer under Chevron to the Attorney
General’s interpretation even if it is in tension with the UNHCR Handbook.”
Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007). Here, the Attorney
General’s interpretation of “particular social group” is permissible, and thus the
1
Although Ramos-Lopez was partially abrogated in Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), its central holding remains good
law. See id. at 1093 (limiting Ramos-Lopez only by asserting that “[t]o the extent
that . . . Ramos-Lopez . . . mischaracterized the ‘social visibility’ requirement by
requiring ‘on-sight’ visibility, [it is] no longer good law”).
2
See United Nations High Comm’r for Refugees, Guidance Note on
Refugee Claims Relating to Victims of Organized Gangs (March 2010), available
at http://www.refworld.org/docid/4bb21fa02.html.
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Guidance Note cannot save Iraheta’s claim. See Ramos-Lopez, 563 F.3d at 858-
62.3
3. The BIA’s denial of relief under the Convention Against Torture
(“CAT”) was supported by substantial evidence. First, although past torture can
support a claim for CAT relief, 8 C.F.R. § 1208.16(c)(3), the primary evidence of
harm in this case was periodic and unspecified beatings during robberies, the
pointing of a gun at Iraheta’s head, and threats made against Iraheta. These facts,
taken as true, do not compel the conclusion that Iraheta is more likely than not to
be tortured if he returns to El Salvador. See, e.g., Lopez-Cardona v. Holder, 662
F.3d 1110, 1114 (9th Cir. 2011). Second, the BIA permissibly concluded that the
Salvadoran government would not consent to, or acquiesce in, gang violence
against Iraheta. For example, Iraheta himself testified that police officers had
come to guard his home after he reported one incident.
4. Iraheta also asserts that the BIA erroneously found him ineligible for
voluntary departure. See 8 C.F.R. § 1240.26(c). However, because the denial was
discretionary, we lack jurisdiction to consider this claimed error. See Gomez-
3
Iraheta’s claim that he was persecuted based on his political opinion is
also foreclosed by Ramos-Lopez. See Ramos-Lopez, 563 F.3d at 862 (rejecting
claim based on political opinion because petitioner “allege[d] no facts in support of
a political opinion, actual or imputed, beyond his refusal to join the MS–13”).
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Lopez v. Ashcroft, 393 F.3d 882, 886 (9th Cir. 2005); 8 U.S.C. § 1229c(f).
Although Iraheta frames the IJ and BIA’s rulings as refusals to exercise discretion,
the record shows that the rulings rested on a discretionary determination that
Iraheta lacked the moral character necessary for eligibility for voluntary departure.
This claim of error, accordingly, is dismissed.
PETITION DENIED in part and DISMISSED in part.
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