FILED NOT FOR PUBLICATION JAN 24 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOAQUIN CHAVEZ-VILLEGAS, No. 20-72616 Petitioner, Agency No. A078-103-328 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 11, 2022 Pasadena, California Before: CLIFTON, M. SMITH, and WATFORD, Circuit Judges. Petitioner Joaquin Chavez Villegas petitions for review of the decision by the Board of Immigration Appeals that affirmed the Immigration Judge’s denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We deny the petition. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review legal questions de novo and the agency’s factual findings for substantial evidence. See Aden v. Wilkinson, 989 F.3d 1073, 1079 (9th Cir. 2021). We review the agency’s case-by- case determinations that a crime is “particularly serious” for abuse of discretion, limited to whether the agency “relied on the appropriate factors and proper evidence[.]” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (internal quotation marks omitted) (quoting Anaya–Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010)). 1. We decline to consider Chavez Villegas’s argument that Pereira ruled by implication that a Notice to Appear without time and place information cannot vest the agency with subject matter jurisdiction. See generally Pereira v. Sessions, 138 S. Ct. 2105 (2018). He failed to exhaust his administrative remedies with regard to this argument despite having the opportunity to do so during the second round of briefing before the BIA. Pereira was issued on June 21, 2018, and he submitted his brief to the BIA on July 31, 2019, in his appeal of the IJ’s post-remand decision to deny CAT protection and enter a removal order. 2. We deny Chavez Villegas’s petition as to his asylum and withholding of removal claims. Even if we assume without deciding that the agency abused its discretion in determining that he committed a “particularly serious crime” that 2 20-72616 rendered him ineligible for asylum and withholding of removal, the agency’s alternative denial of those claims on the merits was based on factual findings that were supported by substantial evidence. With regard to asylum, substantial evidence supported the agency’s finding that he did not establish that he faced past persecution or had a well-founded fear of persecution on account of his membership in a particular social group. The record does not compel an outcome contrary to the IJ’s finding that his testimony, although “generally credible[,]” was “speculati[ve] when he concludes that it was the police officers that turned him over to the [NGC]” and that the encounter was not on account of a protected ground but rather “pure extortion by a criminal gang, which is not a basis for a grant of asylum[.]” The BIA affirmed …
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