NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAFNUNCIO MORALES VALDEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-512

Agency No.

A208-121-738

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 5, 2023**

Pasadena, California

Before: WARDLAW, LEE, and BUMATAY, Circuit Judges.

Pafnuncio Morales Valdez (Morales), a native and citizen of Mexico, 

petitions for review of a decision by the Board of Immigration Appeals (Board or 

BIA) dismissing his appeal of an Immigration Judge’s (IJ) denial of his 

* 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

DEC 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-512

applications for asylum, withholding of removal, and protection under the 

Convention Against Torture (CAT) and his request for post-conclusion voluntary 

departure.1 We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. We disagree with Morales that remand for the agency to terminate 

proceedings or to reconsider the IJ’s denial of voluntary departure is warranted

based on the defective Notice to Appear(NTA). The argument is unexhausted, see 

8 U.S.C. § 1252(d)(1), and the court’s exceptions to the administrative exhaustion 

requirement do not apply. Even if we were to reach the issue, we would hold that 

Morales’s arguments lack merit. The defective NTA did not divest the agency of 

subject-matter jurisdiction. See United States v. Bastide-Hernandez, 39 F.4th 

1187, 1191 (9th Cir. 2022) (en banc) (holding that 8 C.F.R. § 1003.14(a) “is a 

claim-processing rule not implicating the [immigration] court’s adjudicatory 

authority”). And the physical presence requirement for voluntary departure was 

never at issue. See 8 U.S.C. § 1229c(b)(1)(A);Posos-Sanchez v. Garland, 3 F.4th 

1176, 1185 (9th Cir. 2021). We decline to remand to the agency to address an 

issue that had no bearing on its denial of post-conclusion voluntary departure.

2. The IJ concluded that Morales’s application for asylum was untimely

because it was filed more than one year after Morales entered the United States, 

1 Despite his counsel’s repeated and apparently mistaken references to 

Guatemala in the opening brief, Morales is a native and citizen of Mexico, and he

has never contested his citizenship.
3 22-512

and Morales did not qualify for an exception to the one-year filing deadline.

8 U.S.C. § 1158(a)(2)(B). The BIA further determined that Morales forfeited his 

right to challenge the IJ’s finding that his asylum application is time-barred by 

failing to raise the issue on appeal to the Board. Even if the issue were properly 

exhausted, Morales, through counsel, forfeited any challenge to the IJ’s finding by 

failing to raise the issue in the petition for review. Hernandez v. Garland, 47 F.4th 

908, 916 (9th Cir. 2022) (as amended).

3. Finally, even assuming without deciding that the agency’s adverse 

credibility determination was erroneous, substantial evidence supports the Board’s 

conclusions that Morales did not establish that he will more likely than not be 

persecuted based on a protected ground, or tortured by or with the acquiescence of 

a public official, upon return to Mexico. See Zhao v. Mukasey, 540 F.3d 1027, 

1030 (9th Cir. 2008); Arteaga v. Mukasey, 511 F.3d 940, 944, 948–49 (9th Cir. 

2007). The record is devoid of society-specific evidence compelling the 

conclusion that persons who “have kinship to crime witnesses” are members of a 

socially distinct group in Mexican society, and thus the agency correctly rejected 

his claim of persecution based on membership in a particular social group . See 

Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020). And although

Morales testified that police officers shoved him to the ground and hit him when he 

was ten or eleven years old, the record reflects that Morales remained in Mexico 
4 22-512

for more than a decade after that incident without experiencing any further harm

from either the police or criminal actors, he does not claim that any of his similarly 

situated family members remaining in Mexico have been harmed in the more than 

two decades since his cousin was murdered, and he otherwise submitted no 

evidence compelling the conclusion that he established a clear probability that he 

will be persecuted or tortured upon return to Mexico. See Tzompantzi-Salazar v. 

Garland, 32 F.4th 696, 705 (9th Cir. 2022) (as amended).

PETITION FOR REVIEW DENIED.