FILED
NOT FOR PUBLICATION
JAN 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA TORRES-DERICHEY, AKA No. 12-72422
Maria Richey, AKA Maria Del Rosario
Torres De Richey, AKA Maria Rosario Agency No. A077-990-068
Torres-Cuevas,
Petitioner, MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 8, 2016**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,*** Senior
District Judge.
*
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).
***
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
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Maria Torres-Derichey, a native and citizen of Mexico, petitions for review
of an order of the Board of Immigration Appeals (BIA) denying her application for
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT).
1. Torres-Derichey concedes that her asylum application, which she filed
more than fifteen years after entering the United States, was untimely. 8 U.S.C.
§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). She must therefore establish “changed”
or “extraordinary” circumstances. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.
§ 1208.4(a)(4), (5). She failed to do so.
We have jurisdiction over Torres-Derichey’s claim that she established
extraordinary circumstances based on her 2002 attempt to adjust her status
following her marriage to a U.S. citizen. Husyev v. Mukasey, 528 F.3d 1172,
1177–81 (9th Cir. 2008); 8 C.F.R. § 1208.4(a)(5)(iv). However, substantial
evidence supports the BIA’s rejection of that claim, given that she sought
adjustment of status more than five years after her lawful status expired and did not
apply for asylum for more than eight years after her application for adjustment of
status was denied. See Husyev, 528 F.3d at 1181–82; 8 C.F.R. § 1208.4(a)(5). We
lack jurisdiction to consider Torres-Derichey’s argument that she established
extraordinary circumstances based on the serious illness of an immediate family
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member, see 8 C.F.R. § 1208.4(a)(5)(vi), as that argument was neither presented to
nor reached by the BIA, see 8 U.S.C. § 1252(d)(1).
We have jurisdiction over Torres-Derichey’s claim that she has
demonstrated changed circumstances based on her son’s birth and diagnosis with
disabilities. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per
curiam). But the record does not compel the conclusion that her asylum
application was filed “within a reasonable period given those ‘changed
circumstances,’” given that Torres-Derichey did not file her application until more
than seven years after her son was born and approximately four years after he was
diagnosed with additional disabilities. 8 C.F.R. § 1208.4(a)(4)(ii). We lack
jurisdiction to consider Torres-Derichey’s argument that her delay was reasonable
because her son’s health has deteriorated, as that argument is unexhausted and
relies on disputed facts. See Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir.
2013).
2. Substantial evidence supports the BIA’s denial of Torres-Derichey’s
claim for withholding of removal. Even if we assume that disabled children in
Mexico and their parents constitute a particular social group within the meaning of
the Immigration and Nationality Act, the record does not compel the conclusion
that Torres-Derichey would likely be persecuted on account of her membership in
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this group. The record does not compel the conclusion that Torres-Derichey’s son
will accompany her to Mexico, that he will suffer treatment amounting to
persecution if he does, or that she will be persecuted as his mother. See Mendoza-
Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (per curiam).
3. The BIA properly denied Torres-Derichey’s CAT claim. The record does
not compel the conclusion that it is more likely than not that Torres-Derichey will
be tortured by, at the behest of, or with the acquiescence of a Mexican official if
she is removed. See 8 C.F.R. §§ 1208.16(c), 1208.18(a).
PETITION DENIED in part and DISMISSED in part.