NOT FOR PUBLICATION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, CLER K U.S. COURT OF APPEAL S2 14

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Mexico, petitions for review of an Immigration Judge’s (“IJ”) concurrence in a Department of Homeland Security (“DHS”) asylum officer’s determ ination 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 h e 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 gove rnment officials. We review th is
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 t attooed former gang members do not constitute a particular

soc ial group. Arteaga v. Mukasey , 511 F.3d 940, 945

– 46 (9th Cir. 2007) (“‘Tattooed gang member’ falls outside the Ninth Circu it’s definition of social group.”). Furthermore, Petitioner does not cite to any record evidence that the Mexican government would h arm him based on any imputed political opinion, as opposed to imputed gang affiliation, which is not a protected ground.3 14

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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 t attoos. 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, 1 and 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 S ervice 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

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28 F.3d at 977 (“We will not manufacture argumen ts for an appellant, and a bare assertion does not preserve a claim

. . . . ”). Finally, th is court lacks jurisdiction to review Petition er’ 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 deni e d 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, t his 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 availa ble to the alien as of right.” ). Pursuant to 8 C.F.R. § 238.1, Petitioner had a right to file a response to the gove rnment’s charges, within ten calendar days, to “ rebut [] the allegations supporting the charge

2 On the contrary, the recor d contain s a copy signed by Petitioner.5 14

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and/or request [] the oppor tunity 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

natu re”

— and the alleged deficiencies could have been resolved through the
remedies available to him a s 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

.