NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FREDY ERNESTO DE LEON VASQUEZ, No. 21-70254 Petitioner, Agency No. A072-398-472 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 14, 2022** San Francisco, California Before: GOULD, NGUYEN, and BENNETT, Circuit Judges. Fredy De Leon Vasquez (“De Leon”), a native and citizen of Guatemala, served in Guatemala’s Civil Patrol from 1987 to 1990 during its civil war. De Leon helped the military identify and locate suspected anti-government guerillas. He summoned the suspects from their homes knowing that they would be beaten, * 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). jailed, and sometimes killed by the soldiers he assisted. And he witnessed these acts, including the extrajudicial executions. De Leon eventually left Guatemala fearing death after guerillas launched a grenade at his patrol unit. De Leon entered the United States without inspection on or about November 1, 1990. He applied for asylum in January 1992, describing fear of harm from anti-government guerillas. After extensive delays, in January 2021, the Board of Immigration Appeals (“BIA”) dismissed De Leon’s appeal from the Immigration Judge’s (“IJ”) denial of his applications for immigration relief because he assisted or otherwise participated in the persecution of others on account of their political opinion, rendering him ineligible for relief. We have jurisdiction under 8 U.S.C. § 1252 and deny De Leon’s petition for review. Noncitizens who have “ordered, incited, assisted, or otherwise participated in the persecution of” others are ineligible for asylum and both statutory and Convention Against Torture (“CAT”) withholding of removal. 8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); 8 C.F.R. § 1208.16(d)(2).1 Courts call this prohibition the “persecutor bar.” E.g., Aragon-Salazar v. Holder, 769 F.3d 699, 1 This prohibition does not bar noncitizens from obtaining CAT deferral of removal. Negusie v. Holder, 555 U.S. 511, 514 (2009). It does not appear that De Leon claims on appeal that he is entitled such relief. But it would not matter if he had. De Leon waived any challenge to the IJ’s denial of CAT deferral before the BIA. Failure to exhaust administrative remedies would prevent this Court from exercising jurisdiction over such a claim. See 8 U.S.C. § 1252(d)(1). 2 701 n.1 (9th Cir. 2014). Though “persecution” is undefined by statute, “our case law defines it as the infliction of suffering or harm upon those who differ in a way regarded as offensive.” Miranda Alvarado v. Gonzales, 449 F.3d 915, 925 (9th Cir. 2006) (cleaned up). For the persecutor bar to apply, a noncitizen must inflict persecution on account of the victim’s “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see …
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