NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARTINA DOREY SERRANO No. 19-72218 VAZQUEZ, Agency No. A078-532-429 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 7, 2021** Pasadena, California Before: KELLY,*** M. SMITH, and FORREST, Circuit Judges. Petitioner Martina Dorey Serrano-Vazquez, a citizen of Mexico, seeks review of the Board of Immigration Appeals’ (BIA) decision dismissing her appeal * 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 Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. from the decision of an Immigration Judge (IJ) denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We deny the petition for review in part and dismiss in part. The parties are familiar with the facts and we need not restate them here. Suffice it to say that in January 2014, with two previous unlawful entries into the United States, Petitioner sought admission without valid entry documents. Pursuant to a Notice to Appear (NTA), Petitioner was charged with inadmissibility. 8 U.S.C. § 1182(a)(7)(A)(i)(I). She conceded her removability and applied for asylum, withholding of removal, and CAT relief. The basis for her claims is membership in a particular social group. STANDARD OF REVIEW We review the BIA’s decision except where it explicitly adopts the IJ’s opinion. Plancarte v. Garland, 9 F.4th 1146, 1151 (9th Cir. 2021). We review legal questions de novo. Nguyen v. Barr, 983 F.3d 1099, 1101 (9th Cir. 2020). But we review the factual findings that underlie the BIA’s decision for substantial evidence. Plancarte, 9 F.4th at 1151. We defer to the agency’s findings “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992); Hussain v. Rosen, 985 F.3d 634, 642 (9th Cir. 2021). DISCUSSION 2 A. Exhaustion Petitioner argues that, under Pereira v. Sessions, 138 S. Ct. 2105 (2018), her NTA is invalid because it does not specify the date and time of the proceeding in accordance with 8 U.S.C. § 1229(a). Accordingly, she argues that the immigration court lacks subject matter and personal jurisdiction. Not having been raised before the BIA, this issue is unexhausted. According to Petitioner, she was not required to exhaust this issue because the Supreme Court’s decision in Pereira was not released until after her briefing before the BIA. This is incorrect: Petitioner filed her brief before the BIA on February 21, 2019, and the Court decided Pereira on June 21, 2018. Petitioner’s failure to exhaust thus bars our review, and we must dismiss this claim. …
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