NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE BALDERAS-JARAMILLO, AKA 

Jaramillo Balderas, AKA Jorge Edwardo 

Balderas, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

No. 14-72661

Agency No. A205-319-390

MEMORANDUM*

On Petition for Review of an Order of the

Department of Homeland Security

Submitted December 7, 2017**

Pasadena, California

Before: KELLY,*** CALLAHAN, and BEA, Circuit Judges.

Petitioner Jorge Balderas-Jaramillo (“Petitioner”), a native and citizen of 

 

* 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).

*** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

FILED

JAN 4 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-72661

Mexico, petitions for review of an Immigration Judge’s (“IJ”) concurrence in a 

Department of Homeland Security (“DHS”) asylum officer’s determination he 

lacked a reasonable fear of persecution or torture in Mexico. We have jurisdiction 

under 8 U.S.C. § 1252(a), and we deny the petition.

Petitioner claimed he feared that Mexican police or military would confuse 

him for a gang or cartel member, due to his tattoos, and therefore kidnap and 

torture him. The IJ found that Petitioner’s feared harm did not bear any nexus to a 

protected ground and that Petitioner did not state more than a speculative fear of 

torture by or with the acquiescence of government officials. We review this

determination by the IJ for substantial evidence. Andrade–Garcia v. Lynch, 828 

F.3d 829, 836 (9th Cir. 2016). 

Substantial evidence supports the IJ’s determination. First, Petitioner argues 

that his fear of persecution is based on a protected ground because his gang tattoos 

identify him as part of a particular “social group,” namely “former gang 

member[s].” But tattooed former gang members do not constitute a particular 

social group. Arteaga v. Mukasey, 511 F.3d 940, 945–46 (9th Cir. 2007)

(“‘Tattooed gang member’ falls outside the Ninth Circuit’s definition of social 

group.”). Furthermore, Petitioner does not cite to any record evidence that the 

Mexican government would harm him based on any imputed political opinion, as 

opposed to imputed gang affiliation, which is not a protected ground. 
3 14-72661

Second, Petitioner fails to point to any record evidence to show that he faces 

a “particularized threat of torture . . . beyond that of which all citizens of [the 

country of removal] are at risk,” Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th 

Cir. 2008), or to show a non-speculative possibility that he will be tortured with the 

involvement or acquiescence of the Mexican government, 8 C.F.R. 

§ 1208.18(a)(1). Even assuming that this argument is not therefore waived, 

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994), the submitted country 

materials mostly describe generalized strife and are, at best, ambiguous as to the 

significance of tattoos. It is the province of the agency to interpret ambiguous 

country condition materials. See Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 

2008).

Petitioner further argues he is entitled to a “well-reasoned decision” under 8 

C.F.R. § 208.31(g), and the IJ’s two-sentence decision was therefore inadequate. 

But nothing in the text of § 208.31(g) facially requires the IJ’s decision to take any 

particular shape or form,1and Petitioner cites no authority for reading such a 

requirement into the regulation. This argument is therefore waived. Greenwood, 

 

1 The regulation states, in pertinent part, only that “[i]f the immigration judge 

concurs with the asylum officer’s determination that the alien does not have a 

reasonable fear of persecution or torture, the case shall be returned to the Service 

for removal of the alien,” and “[n]o appeal shall lie from the immigration judge’s 

decision.” 8 C.F.R. § 208.31(g)(1).
4 14-72661

28 F.3d at 977 (“We will not manufacture arguments for an appellant, and a bare 

assertion does not preserve a claim . . . .”). 

Finally, this court lacks jurisdiction to review Petitioner’s challenges to 

the underlying removal order—that is, whether Petitioner was removable as an 

aggravated felon because of his 2014 California robbery conviction, and whether 

the agency denied him due process in so finding—because Petitioner failed to 

exhaust remedies provided to him by right under 8 C.F.R. § 238.1. Apparently to 

attack collaterally the underlying administrative removal order, Petitioner argues

that the government violated 8 U.S.C. § 1228 in failing to give him a legal aid list 

to facilitate access to pro bono counsel,

2

and in failing to give him an opportunity 

to inspect and rebut the government’s evidence against him. 

However, this court has held that 8 U.S.C. § 1252(d)(1) requires exhaustion 

of due-process-style claims that are “procedural in nature,” such as “absence of 

counsel and lack of opportunity to present a case.” Barron v. Ashcroft, 358 F.3d 

674, 678 (9th Cir. 2004). Exhaustion is a jurisdictional requirement. 8 U.S.C. 

§ 1252(d) (“A court may review a final order of removal only if . . . the alien has 

exhausted all administrative remedies available to the alien as of right.”). Pursuant 

to 8 C.F.R. § 238.1, Petitioner had a right to file a response to the government’s 

charges, within ten calendar days, to “rebut[] the allegations supporting the charge 

 

2 On the contrary, the record contains a copy signed by Petitioner.
5 14-72661

and/or request[] the opportunity to review the Government’s evidence.” The 

Notice of Intent served upon Petitioner advised him of his right to respond under 8 

C.F.R. § 238.1; Petitioner simply failed to avail himself of that right. Because 

Petitioner’s challenges to the underlying removal order are “procedural in 

nature”—and the alleged deficiencies could have been resolved through the 

remedies available to him as of right under 8 C.F.R. § 238.1—this court lacks 

jurisdiction to review them under 8 U.S.C. § 1252(d)(1).

PETITION DENIED.