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FILED
NOT FOR PUBLICATION
APR 17 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGUSTIN GARCIA-ROJO, No. 21-624
Petitioner, Agency No.
A089-927-243
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2023**
Seattle Washington
Before: McKEOWN, BYBEE and FORREST, Circuit Judges.
Petitioner Agustin Garcia-Rojo, a citizen and national of Mexico, seeks
review of the Board of Immigration Appeals’s (BIA) decision denying his motion
to reopen and affirming the Immigration Judge’s (IJ) denial of asylum and
*
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).
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withholding of removal. We have jurisdiction under 8 U.S.C. § 1252(a) and deny
the petition in part, grant in part, and remand.
1. Generally, a petitioner must file an asylum application within one year of
his arrival in the United States, unless there are materially changed or
“extraordinary” circumstances. 8 U.S.C. § 1158(a)(2)(D). We have jurisdiction to
review the BIA’s decision that Garcia-Rojo was statutorily ineligible for asylum
because the underlying facts are not in dispute. Husyev v. Mukasey, 528 F.3d
1172, 1179 (9th Cir. 2008).
Garcia-Rojo claims he delayed in applying for asylum due to his mental and
emotional state stemming from abuse he suffered as a child. However, Garcia-
Rojo was present in the United States for fifteen years and was in removal
proceedings, with the assistance of counsel, for seven years prior to applying for
asylum. During this time, Garcia-Rojo applied for a U-Visa. Moreover, well
before he applied for asylum, Garcia-Rojo recounted the abuse he suffered as a
child to friends. The BIA did not err in affirming the IJ’s ruling that Garcia-Rojo’s
mental and emotional state was not so disabling as to constitute “extraordinary
circumstances.”
2. Garcia-Rojo seeks withholding of removal based on membership in three
particular social groups (PSGs). “Whether a group constitutes a ‘particular social
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group’ under the INA is a question of law that we review de novo.” Barbosa v.
Barr, 926 F.3d 1053, 1059 (9th Cir. 2019).
Garcia-Rojo has waived his argument regarding the PSG, “male victims of
sexual abuse who are known in their community to have been victims of this
sexual abuse.” In his brief to the BIA, Garcia-Rojo never argued the IJ erred in
determining there was no evidence of future harm on this basis. We lack
jurisdiction to consider this argument now because Garcia-Rojo failed to exhaust
the issue with the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Garcia-Rojo also failed to exhaust his claim related to the proposed PSG,
“family member[s] of Jose Ivan Garcia Rojo,” because he failed to raise this issue
before the BIA. See Barron, 358 F.3d at 678.
We now turn to the final PSG, “Mexican nationals who have spent a
significant amount of time in the United States, being perceived to have money,
and not [] accustomed to living in Mexico.” The BIA found this group was not
cognizable because it is neither particular nor socially distinct. For a PSG to be
cognizable, it must be “(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the
society in question.” Villegas Sanchez v. Garland, 990 F.3d 1173, 1180 (9th Cir.
2021) (internal quotation marks and citation omitted).
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We have previously held that similar groups are not cognizable. In Barbosa,
926 F.3d at 1059–60, we held that individuals “returning to Mexico [from] the
United States [who] are believed to be wealthy” is overbroad. In Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010), we held that “returning Mexicans
from the United States” is overbroad. In Ramirez-Munoz v. Lynch, 816 F.3d 1226,
1229 (9th Cir. 2016), we held that “imputed wealthy Americans” was overbroad.
Moreover, Garcia-Rojo did not define a “significant amount of time,” or how
“[un]accustomed” to living in Mexico one must be to belong in the group. The
distinctions Garcia-Rojo attempts to make “appear[] to be a matter of semantics.”
Id. at 1228. Because Garcia-Rojo’s proposed group is too broad, the BIA did not
err in determining that it is not cognizable as a PSG.
3. While his appeal was pending before the BIA, Garcia-Rojo received
primary custody of his U.S.-citizen child. Accordingly, Garcia-Rojo filed a motion
to reopen and remand so that he may pursue cancellation of removal under 8
U.S.C. § 1229b(b)(1)–(2), as both a nonpermanent resident and as a parent of a
child who has been battered or subjected to extreme cruelty by a U.S.-citizen
parent. Both subsections require a petitioner to demonstrate he “has not been
convicted of an offense under section . . . § 1227(a)(2).” 8 U.S.C.
§ 1229b(b)(1)(C), (b)(2)(A)(iv).
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“A motion to reopen proceedings for the purpose of submitting an
application for relief must be accompanied by the appropriate application for relief
and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1). The BIA denied
Garcia-Rojo’s motion to reopen, concluding Garcia-Rojo did not demonstrate
prima facie eligibility for relief because he failed to demonstrate that his North
Carolina convictions were not crimes involving moral turpitude. In support, the
BIA cited two administrative decisions that addressed the question of whether
similar convictions in different jurisdictions constitute crimes involving moral
turpitude. See Matter of Jurado-Delgado, 24 I. & N. Dec. 29, 35 (BIA 2006)
(holding that Pennsylvania’s statute criminalizing unsworn falsification to
authorities is a crime involving moral turpitude); Matter of Salvail, 17 I. & N. Dec.
19 (BIA 1979) (holding that a Canadian conviction for possession of stolen goods
is a crime involving moral turpitude). The BIA did not rule on any other aspect of
Petitioner’s prima facie case.
The BIA abused its discretion. Garcia-Rojo alleged facts sufficient to show
the name, date, location, and sentences of his convictions. None of Garcia-Rojo’s
convictions were CIMTs on their face. The BIA acted arbitrarily when it faulted
Garcia-Rojo for failing to conclusively and preemptively prove each conviction
was categorically not a CIMT at this stage in his proceedings. See Tadevosyan v.
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Holder, 743 F.3d 1250, 1255 (9th Cir. 2014) (holding that a motion to reopen does
“not require[] a conclusive showing that, assuming the facts alleged to be true,
eligibility for relief has been established” (alteration in original) (quoting Matter of
L-O-G, 21 I.&N. Dec. 413, 418–19 (BIA 1996))).
We therefore grant Garcia-Rojo’s petition as to this issue and remand to the
BIA with instructions to determine if Garcia-Rojo has otherwise satisfied the
requirements for his motion to reopen.
Each party is to bear its own costs on appeal.
PETITION DENIED in part, GRANTED in part, and REMANDED.
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Garcia-Rojo v. Garland
Combined Opinion