Case: 21-624, 04/17/2023, DktEntry: 38.1, Page 1 of 6 FILED NOT FOR PUBLICATION APR 17 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AGUSTIN GARCIA-ROJO, No. 21-624 Petitioner, Agency No. A089-927-243 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 13, 2023** Seattle Washington Before: McKEOWN, BYBEE and FORREST, Circuit Judges. Petitioner Agustin Garcia-Rojo, a citizen and national of Mexico, seeks review of the Board of Immigration Appeals’s (BIA) decision denying his motion to reopen and affirming the Immigration Judge’s (IJ) denial of asylum and * 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). Case: 21-624, 04/17/2023, DktEntry: 38.1, Page 2 of 6 withholding of removal. We have jurisdiction under 8 U.S.C. § 1252(a) and deny the petition in part, grant in part, and remand. 1. Generally, a petitioner must file an asylum application within one year of his arrival in the United States, unless there are materially changed or “extraordinary” circumstances. 8 U.S.C. § 1158(a)(2)(D). We have jurisdiction to review the BIA’s decision that Garcia-Rojo was statutorily ineligible for asylum because the underlying facts are not in dispute. Husyev v. Mukasey, 528 F.3d 1172, 1179 (9th Cir. 2008). Garcia-Rojo claims he delayed in applying for asylum due to his mental and emotional state stemming from abuse he suffered as a child. However, Garcia- Rojo was present in the United States for fifteen years and was in removal proceedings, with the assistance of counsel, for seven years prior to applying for asylum. During this time, Garcia-Rojo applied for a U-Visa. Moreover, well before he applied for asylum, Garcia-Rojo recounted the abuse he suffered as a child to friends. The BIA did not err in affirming the IJ’s ruling that Garcia-Rojo’s mental and emotional state was not so disabling as to constitute “extraordinary circumstances.” 2. Garcia-Rojo seeks withholding of removal based on membership in three particular social groups (PSGs). “Whether a group constitutes a ‘particular social 2 Case: 21-624, 04/17/2023, DktEntry: 38.1, Page 3 of 6 group’ under the INA is a question of law that we review de novo.” Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019). Garcia-Rojo has waived his argument regarding the PSG, “male victims of sexual abuse who are known in their community to have been victims of this sexual abuse.” In his brief to the BIA, Garcia-Rojo never argued the IJ erred in determining there was no evidence of future harm on this basis. We lack jurisdiction to consider this argument now because Garcia-Rojo failed to exhaust the issue with the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Garcia-Rojo also failed to exhaust his claim related to the proposed PSG, “family member[s] of Jose …
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