FILED
NOT FOR PUBLICATION DEC 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATH DOUGPANYA; MATHINEE No. 08-73326
CHAIVORAPOJ,
Agency Nos. A098-406-549
Petitioners, A098-406-550
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2013**
San Francisco, California
Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.
Nath Dougpanya and, derivatively, his wife Mathinee Chaivorapoj, petition
for review of the Board of Immigration Appeals’ (“BIA”) final order dismissing
his appeal of the Immigration Judge’s (“IJ”) decision denying him asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We deny the petition for review. Because the parties are familiar with the facts and
procedural history of the case, we need not recount them here.
I
Dougpanya failed to raise his claim of ineffective assistance of counsel
before the BIA. Because he failed to exhaust the claim before the agency, we lack
jurisdiction to hear the claim and must dismiss it. 8 U.S.C. § 1252(d); see also
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000) (“We . . . require an
alien who argues ineffective assistance of counsel to exhaust his administrative
remedies by first presenting the issue to the BIA.”).
II
We also lack jurisdiction over Dougpanya’s claim that the BIA erred in
determining that his asylum claim was time-barred. An alien must file an
application for asylum “within 1 year after the date of the alien’s arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). If the application is late, as
Dougpanya’s is in this case, “the Government may still consider [it] if the applicant
establishes (1) changed circumstances that materially affect the applicant’s
eligibility for asylum or (2) extraordinary circumstances directly related to the
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delay in filing an application.” Singh v. Holder, 656 F.3d 1047, 1052 (9th Cir.
2011) (citing 8 U.S.C. § 1158(a)(2)(D)).
We may review the BIA’s determination about changed or extraordinary
circumstances “only with regard to constitutional claims and questions of law.”
Gasparyan v. Holder, 707 F.3d 1130, 1133 (9th Cir. 2013). Thus, we may only
review “the agency’s application of the changed or extraordinary circumstances
exception to undisputed facts.” Singh, 656 F.3d at 1051. Here, the parties dispute
the facts underlying the BIA’s changed circumstances determination. As a result,
we lack jurisdiction to review the BIA’s determination that the asylum petition was
untimely. 8 U.S.C. § 1158(a)(3).
III
Dougpanya argues that the BIA erred in its analysis of his withholding
claim. Because Dougpanya did not contend before the BIA that he was persecuted
on account of political opinion, we lack jurisdiction to consider that issue. See
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (holding that a petitioner
who fails to raise an issue before the BIA has failed to exhaust his administrative
remedies, which deprives this court of jurisdiction).
Dougpanya did argue he would be persecuted as a part of a particular social
group. However, unlike the petitioner in Henriquez-Rivas v. Holder, 707 F.3d
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1081, 1085-86, 1091-93 (9th Cir. 2013) (en banc), Dougpanya has not sufficiently
identified a specific social group, with the requisite social visibility, to support a
withholding of removal claim. Therefore, the BIA properly denied it.
Dougpanya did not raise CAT relief in his brief to this court and has
consequently waived that issue. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th
Cir. 2011).
PETITION DISMISSED IN PART; DENIED IN PART.
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