Jose Juan De Juan Andres v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JUAN DE JUAN ANDRES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-731
Agency No.
A213-078-819
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 17, 2023**
San Francisco, California
Before: BEA, CHRISTEN, and JOHNSTONE, Circuit Judges.
Jose Juan de Juan Andres, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of
the Immigration Judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
* 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 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
1. The IJ did not err in finding that Petitioner’s asylum application was
time-barred under 8 U.S.C. § 1158(a)(2)(B), and Petitioner failed to exhaust this
dispositive issue on appeal before the BIA. Exhaustion, as required by 8 U.S.C.
§ 1252(d)(1), is a “claim-processing rule.” Santos-Zacaria v. Garland, 598 U.S.
411, 416–19 (2023). The Court will deny a petition for failure to exhaust an issue
below if a party properly raises the failure to exhaust. See Fort Bend County v.
Davis, 139 S. Ct. 1843, 1849 (2019); Umana-Escobar v. Garland, 69 F.4th 544,
550 (9th Cir. 2023). Petitioner de Juan Andres failed to challenge the IJ’s
determination that his claim was time-barred and that no exception applied before
the BIA, and Respondent properly raises the failure to exhaust here. Consequently,
the Court denies the asylum portion of the petition.
2. Substantial evidence supports the IJ’s and BIA’s conclusions that
Petitioner was not eligible for withholding of removal. Petitioner did not
experience past persecution on account of being Mayan, and his family has
remained in Guatemala without incident. Further, his proposed particular social
group—“those who are perceived to have amassed significant wealth during their
time in the United States”—is not cognizable. See 8 U.S.C. § 1231(b)(3)(A);
Barbosa v. Barr, 926 F.3d 1053, 1059–60 (9th Cir. 2019); Ramirez-Munoz v.
Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016).

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3. Substantial evidence supports the IJ’s and BIA’s conclusions that
Petitioner is not entitled to CAT relief because he failed to establish a likelihood of
torture with government participation or acquiescence. Petitioner failed to
establish a particularized risk of torture. Though he fears generalized crime in
Guatemala based on reports of discrimination and a girl’s kidnapping, this
evidence does not compel the Court to conclude the IJ or BIA erred in deciding
that Petitioner failed to establish a likelihood of torture with government
participation or acquiescence. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–
52 (9th Cir. 2010) (per curiam). Petitioner therefore failed to demonstrate
eligibility for CAT relief. 8 C.F.R. § 1208.16(c).
PETITION DENIED.

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