NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AGUSTIN GARCIA-ROJO,

Petitioner,

v. MERRICK B. GARLAND, Attorney General Respondent. No. 21-624 Agency No. A089-927-243
MEMORANDUM *

On Petition for Review of an Order of the Board of Im m igration Appeals Subm itted 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 Im m igration Appeals’s (BIA) decision denying his m otion to reopen and affirm ing the Im m igration Judge’s (IJ) denial of asylum and 

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APR 17 2023 M OLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).withholding of rem oval. We have jurisdiction under 8 U.S.C. § 1252(a) and deny

the petition in part, grant in part, and rem and. 1. Generally, a petitioner must file an asylumapplication within one year of his arrival in the United States, unless there are m aterially changed or “extraordinary” circum stances. 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 claim s he delayed in applying for asylum due to his m ental and

em otional state stem m ing fromabuse he suffered as a child. However, GarciaRojo was present in the United States for fifteen years and was in rem oval proceedings, with the assistance of counsel, for seven years prior to applying for asylum . During this tim e, 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 affirm ing the IJ’s ruling that Garcia-Rojo’s

m ental and em otional state was not so disabling as to constitute “extraordinary circum stances.” 2. Garcia-Rojo seeks withholding of rem oval based on m e m bership in three particular social groups (PSGs). “Whether a group constitutes a ‘particular social

2group’ 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 argum e nt regarding the PSG, “m a le victim s of sexual abuse who are known in their com m unity to have been victim s of this sexual abuse.” In his brief to the BIA, Garcia-Rojo never argued the IJ erred in determ ining there was no evidence of future harm on this basis. We lack jurisdiction to consider this argum ent 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 claimrelated to the proposed PSG, “fam ily m em

ber[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 am ount of tim e in the United States, being perceived to have m oney, and not [] accustom ed 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 m em bers who share a com m on im m utable 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 m arks and citation om itted).

3We have previously held that sim ilar 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 “im puted wealthy Am ericans” was overbroad. Moreover, Garcia-Rojo did not define a “significant am ount of tim e,” or how “[un] accustom ed” to living in Mexico one m ust be to belong in the group. The distinctions Garcia-Rojo attempts to m ake “appear[] to be a m atter of sem antics.” Id . at 1228. Because Garcia-Rojo’s proposed group is too broad, the BIA did not err in determ ining that it is not cognizable as a PSG. 3. While his appeal was pending before the BIA, Garcia-Rojo received prim ary custody of his U.S.-citizen child. Accordingly, Garcia-Rojo filed a m otion to reopen and rem and so that he m ay pursue cancellation of rem oval under 8 U.S.C. § 1229b(b)(1)–(2), as both a nonperm anent resident and as a parent of a child who has been battered or subjected to extrem e cruelty by a U.S.-citizen parent. Both subsections require a petitioner to dem onstrate 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).

4“A m otion to reopen proceedings for the purpose of subm itting an

application for relief m ust be accom panied by the appropriate application for relief and all supporting docum entation.” 8 C.F.R. § 1003.2(c)(1). The BIA denied Garcia-Rojo’s m otion to reopen, concluding Garcia-Rojo did not dem onstrate prim a facie eligibility for relief because he failed to dem onstrate that his North Carolina convictions were not crim es involving m oral turpitude. In support, the BIA cited two adm inistrative decisions that addressed the quest ion of whether sim ilar convictions in different jurisdictions constitute crim es involving m oral turpitude. S ee Matter of Jurado-Delgado , 24 I. & N. Dec. 29, 35 (BIA 2006) (holding that Pennsylvania’s statute crim inalizing unsworn falsification to authorities is a crim e involving m oral turpitude); M atter of Salvail , 17 I. & N. Dec. 19 (BIA 1979) (holding that a Canadian conviction for possession of stolen goods is a crim e involving m oral turpitude). The BIA did not rule on any other aspect of Petitioner’s prim a facie case. The BIA abused its discretion. Garcia-Rojo alleged facts sufficient to show the nam e, 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 preem ptively prove each conviction was categorically not a CIMT at this stage in his proceedings. See Tadevosyan v.

5Holder , 743 F.3d 1250, 1255 (9th Cir. 2014) (holding that a m otion to reopen does

“not require[] a conclusive showing that, assum ing the facts alleged to be true, eligibility for relief has been established” (alteration in original) (quoting M atter 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 rem and to the BIA with instructions to determ ine if Garcia-Rojo has otherwise satisfied the requirem ents for his m otion 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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