NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT VIRGILIO ALVARO ARCOS, No. 18-71552 Petitioner, Agency No. A205-321-339 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 2, 2019 San Francisco, California Before: FERNANDEZ and PAEZ, Circuit Judges, and CHOE-GROVES,** Judge. Virgilio Alvaro Arcos, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. review the agency’s legal determinations de novo, and we review its factual findings for substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). We dismiss in part and deny in part the petition for review. We lack jurisdiction to review the agency’s ruling that the extraordinary- circumstances exception to the one-year deadline for filing an asylum application, set forth at 8 U.S.C. § 1158(a)(2)(D), did not apply. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review questions of law. See Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir. 2008) (holding that court had jurisdiction to review agency’s application of extraordinary-circumstances exception to undisputed facts). Here, however, the agency’s ruling turned on its resolution of disputed facts concerning the effects of Alvaro Arcos’s mental health diagnosis and intellectual disability. See Sumolong v. Holder, 723 F.3d 1080, 1082 (9th Cir. 2013) (finding no jurisdiction to review BIA’s ruling that petitioner failed to meet extraordinary- circumstances exception where ruling rested on IJ’s resolution of underlying factual dispute regarding reason for filing delay). We dismiss the petition for review in part. As to withholding of removal, substantial evidence supports the agency’s finding that Alvaro Arcos did not show the Mexican government was unable or unwilling to protect him from persecution. See Guo v. Sessions, 897 F.3d 1208, 1212–13 (9th Cir. 2018) (applicant must show that persecution was by the 2 government or by forces the government was unable or unwilling to control). The record shows that indigenous citizens are marginalized and discriminated against in Mexico, but it does not compel the conclusion that private persecution is widespread and well known but not controlled by the government. See Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010); Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (persecution is an extreme concept and is not the same as discrimination). We deny the petition for review as to Alvaro Arcos’s claim for withholding of removal. PETITION FOR REVIEW DISMISSED in part and DENIED in part. 3 FILED Arcos v. Barr, No. 18-71552 Paez, ...
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