Alvaro E. Avalos Gutierrez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALVARO E. AVALOS GUTIERREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1985
Agency No.
A201-102-522
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2023**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Alvaro E. Avalos Gutierrez, 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 applications for asylum,
* 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).
FILED
OCT 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the
legal question of whether a particular social group is cognizable, except to the
extent that deference is owed to the BIA’s interpretation of the governing statutes
and regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir.
2020). We review for substantial evidence the agency’s factual findings. Id. at
1241. We deny the petition for review.
The record does not compel the conclusion that Avalos Gutierrez established
changed or extraordinary circumstances to excuse the untimely asylum application.
See Singh v. Holder, 649 F.3d 1161, 1164-65 (9th Cir. 2011) (en banc) (court
retained jurisdiction to review legal or constitutional questions related to the one-
year filing deadline); 8 C.F.R. § 1208.4(a)(4)-(5) (changed and extraordinary
circumstances); Alquijay v. Garland, 40 F.4th 1099, 1103 (9th Cir. 2022) (“As a
general rule, ignorance of the law is no excuse” (citation and internal quotation
marks omitted)). Thus, Avalos Gutierrez’s asylum claim fails.
As to withholding of removal, the BIA did not err in concluding that Avalos
Gutierrez failed to establish membership in a cognizable particular social group.
See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (to demonstrate
membership in a particular social group, “[t]he applicant must ‘establish that the
group is (1) composed of members who share a common immutable characteristic,

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(2) defined with particularity, and (3) socially distinct within the society in
question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)));
see also Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir. 2019) (particular social
group of “individuals returning to Mexico from the United States who are believed
to be wealthy” not cognizable). Thus, Avalos Gutierrez’s withholding of removal
claim fails.
Substantial evidence also supports the agency’s denial of CAT protection
because Avalos Gutierrez failed to show it is more likely than not he will be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
To the extent Avalos Gutierrez asserts ineffective assistance of counsel and
that the IJ violated his right to due process, these contentions are not properly
before the court because he failed to raise them before the BIA. See 8 U.S.C.
§ 1252(d)(1) (exhaustion of administrative remedies required); see also Santos-
Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a non-
jurisdictional claim-processing rule).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.

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