Juan Carlos Garcia-Alvarado v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 21-3037
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Juan Carlos Garcia-Alvarado
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 16, 2022
Filed: February 25, 2022
[Unpublished]
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Before BENTON, KELLY, and KOBES, Circuit Judges.
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PER CURIAM.
Juan Carlos Garcia-Alvarado, a native and citizen of Mexico, petitions for
review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal
from an immigration judge’s (IJ) decision. The IJ denied his asylum application as
untimely, and denied him withholding of removal and protection under the
Convention Against Torture (CAT). Having jurisdiction under 8 U.S.C. § 1252, this
court denies the petition for review.

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To the extent Garcia-Alvarado seeks review of the denial of his asylum
application, this court may not review it because he failed to exhaust his claim. The
IJ found his application was untimely and not subject to any exceptions that would
excuse the untimeliness, the BIA concluded he waived any challenge to those
findings because he did not raise them on appeal, and he does not challenge the
BIA’s waiver determination in this court. See Chak Yiu Lui v. Holder, 600 F.3d 980,
984 (8th Cir. 2010); Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
This court also is precluded from reviewing the CAT claim because it was not
exhausted before the agency, and Garcia-Alvarado—who was represented by the
same counsel during the adversarial agency proceedings—offers no compelling
reason to excuse exhaustion. See 8 U.S.C. § 1252(d)(1); Bakor v. Barr, 958 F.3d
732, 739 (8th Cir. 2020); Marambo v. Barr, 932 F.3d 650, 654-55 (8th Cir. 2019);
Martinez Carcamo v. Holder, 713 F.3d 916, 925 & n.6 (8th Cir. 2013).
Substantial evidence supports the agency’s decision to deny Garcia-Alvarado
withholding of removal because he failed to show, by a clear probability, that his
life or freedom would be threatened in Mexico based on a statutorily protected
ground. See 8 U.S.C. § 1231(b)(3); Mouawad v. Gonzales, 485 F.3d 405, 411-12
(8th Cir. 2007). He conceded that any past persecution he suffered was motivated
by the gang’s desire to recruit him, not his proposed particular social group, and his
argument is belied by the record. See Pinos Gonzalez v. Barr, 929 F.3d 595, 597
(8th Cir. 2019); Silvestre-Giron v. Barr, 949 F.3d 1114, 1117, 1119 & n.3 (8th Cir.
2020) (standard of review). The record does not support the conclusion that Garcia-
Alvarado could not reasonably relocate within Mexico to avoid a future threat. See
De Castro-Gutierrez v. Holder, 713 F.3d 375, 379 (8th Cir. 2013) (standard of
review); 8 C.F.R. § 1208.16(b)(3) (delineating potentially relevant factors); see also
Bautista-Bautista v. Garland, 3 F.4th 1048, 1051, 1053 (8th Cir. 2021).
The petition is denied. See 8th Cir. R. 47B.
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