Braulio Sarabia-Perez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRAULIO SARABIA-PEREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-71189
Agency No. A201-240-981
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Braulio Sarabia-Perez, 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 decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”), and denying
* 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
DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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his request for administrative closure. We have jurisdiction under 8 U.S.C. § 1252.
We review factual findings for substantial evidence. Zehatye v. Gonzales, 453
F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.
The record does not compel the conclusion that Sarabia-Perez applied for
asylum within a reasonable time of any changed or extraordinary circumstances as
to excuse the untimely filing of his asylum application. See 8 C.F.R.
§ 1208.4(a)(2), (4)-(5); see also Husyev v. Mukasey, 528 F.3d 1172, 1181-82 (9th
Cir. 2008). Thus, Sarabia-Perez’s asylum claim fails.
Substantial evidence supports the determination that Sarabia-Perez failed to
establish he suffered harm that rises to the level of persecution. See Baghdasaryan
v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (an applicant who alleges past
persecution has the burden of proving that the treatment rises to the level of
persecution). Substantial evidence also supports the determination that Sarabia-
Perez failed to establish he would be persecuted on account of a protected ground.
See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (an applicant “must provide
some evidence of [motive], direct or circumstantial”); see also Molina-Morales v.
INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (harm based on personal retribution is
not persecution on account of a protected ground). We do not consider Sarabia-
Perez’s social group claim based on reporting a crime, because the BIA did not
decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.

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2011) (review limited to the grounds relied on by the BIA), and Sarabia-Perez does
not contend the BIA erred in finding that this social group claim was not properly
before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013)
(failure to contest issue in opening brief resulted in waiver). Thus, Sarabia-Perez’s
withholding of removal claim fails.
Substantial evidence supports the BIA’s denial of CAT relief because
Sarabia-Perez 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); see also Wakkary v. Holder,
558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).
There was no abuse of discretion in the denial of administrative closure. See
Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 891-93 (9th Cir. 2018) (holding the
non-exhaustive list of factors in Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA
2012), provides a standard for reviewing administrative closure decisions).
We do not consider the materials Sarabia-Perez references in his opening
brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,
963 (9th Cir. 1996) (en banc).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.

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