UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

DEYSI CASTELLANOS-PINEDA, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9519 (Petition for Review)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, ANDERSON , Circuit Judge, and BRORBY , Senior Circuit Judge.
Deysi Castellanos-Pineda petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her applicati ons for restriction on removal and protection under the Convention Against Torture (“CA T”). Because we conclude we lack jurisdiction to review any of Ms. Cast ellanos-Pineda’s claims, we dismiss her petition for review.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 20, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - Background Ms. Castellanos-Pineda is a native and c itizen of El Salvador who entered the United States illegally in 2006. The Depa rtment of Homeland Security served her with a notice to appear, a nd she conceded removabilit y. In 2010, she submitted applications for asylum, restriction on removal, 1 and protection under the CAT, claiming a fear of persecution in El Salvador based on her membership in a particular social group comprised of business owners. Ms. Castellanos-Pineda tes tified at a hearing before an immigration judge (“IJ”) that she had sold grains, sugar, beans, and rice out of her garage in El Salvador. In the summer of 2005, afte r she had operated her store for two years, members of the MS 18 gang approached he r, showed her their guns, and demanded that she pay “rent.” She testified that she did not report the gang members’ demand for money to the police because they threatened to kill her if she refused to pay. She further testified that other s hop owners were also required to pay rent to MS 18, and one shop owner was killed when he stopped making payments. Ms. Castellanos-Pineda continued to ma ke weekly $50 payments to the gang for about six months. She stopped paying in January 20 06 because she did not have

1 Ms. Castellanos-Pineda and the agency use the term “withholding of removal.” “[A]mendments to the Immigration & Na turalization Act made by the Illegal Immigration Reform and Immigrant Respon sibility Act of 1996 (IIRIRA) changed the terminology to ‘restriction on removal.’ See 8 U.S.C. § 1231(b)(3)[.] Since this case arose after the ef fective date of the IIRIRA, we refer to this provision as ‘restriction on removal.’” Sidabutar v. Gonzales , 503 F.3d 1116, 1117 n.1 (10th Cir. 2007) (citation omitted).- 3 - enough money. On the evening of the day that she refused to pay, she heard noises coming from her roof. She did not see what or who made the noise s, but she believed it was members of the MS 18 gang trying to enter her home to harm her. The next morning, Ms. Castellanos-Pineda left for her mother’s house in another town about 45 minutes away. She lived with her mother for four months before she decided to leave for the United States because she fear ed that the gang woul d come after her. Ms. Castellanos-Pineda initially left her son with her mother in El Salvador. She later brought him to the United States after gang members demanded money from her mother and threatened to kidnap her son because they knew sh e was living in the United States. After her son left El Salv ador, the MS 18 gang has not contacted her parents, who continue to live in El Salva dor, as do her grandmothe r and her brother. The MS 18 gang never physically harmed her. The IJ granted Ms. Castellanos-Pineda vol untary departure but denied all other relief. The BIA dismissed her appeal. Standards of Review Because a single member of the BIA affirmed the IJ’s decision in a brief order pursuant to 8 C.F.R. § 1003.1(e)(5), we re view the BIA’s decisi on as the final order of removal. See Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). “We look to the record for substa ntial evidence supporting the ag ency’s decision . . . .” Id. (internal quotation marks omitted). We review legal questions de novo. Ferry v. Gonzales , 457 F.3d 1117, 1126 (10th Cir. 2006).- 4 - Denial of Asylum The Attorney General initially argues that we should dismiss Ms. Castellanos-Pineda’s petition for lack of jurisdiction to the extent that she challenges the BIA’s denial of her asylum application. The BIA denied asylum because she failed to f ile her application by the one-year statutory deadline. The BIA further concluded that she di d not establish eligibility fo r an exception to the time limit by presenting evidence of changed circumstances in El Salvador or extraordinary circumstances. We agree with the Attorn ey General that we lack jurisdiction to review these determinations. See 8 U.S.C. § 1158(a)(3). But we do not construe Ms. Castellanos -Pineda’s petition as raisi ng any claim regarding the BIA’s denial of asylum. Rather, she chal lenges only the BIA’s de nial of restriction on removal and protection under the CAT. We address below why we lack jurisdiction to review the clai ms that she asserts with resp ect to the BIA’s denial of those forms relief. Denial of Restriction on Remo val and Protection Under the CAT Ms. Castellanos-Pineda may not be rem oved to El Salvador “if the Attorney General decides that [her] li fe or freedom would be th reatened in that country because of [her] race , religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). In order to be eligible for restriction on removal, Ms. Castellanos-Pineda must es tablish a clear probability of persecution on account of one of the protected grounds. See Woldemeskel v INS , 257 F.3d 1185,- 5 - 1193 (10th Cir. 2001). A “clear probability ” means the persecution is “more likely than not” to occur upon return to the country of removal. Id. “And the persecution must be committed by the government or fo rces the government is either unable or unwilling to control.” Neri-Garcia v. Holder , 696 F.3d 1003, 1009 (10th Cir. 2012) (internal quotation marks omitted). “A n alien can establish a presumptive entitlement to restriction on removal on the basis of past persecution.” Id. “To receive the protections of the CAT, an alien must demonstrate that it is more likely than not that [s]he will be s ubject to torture by a public offi cial, or at the instigation or with the acquiescence of such an official.” Sidabutar v. Gonzales , 503 F.3d 1116, 1125 (10th Cir. 2007) (interna l quotation marks omitted). The BIA affirmed the IJ’s denial of Ms. Castellanos -Pineda’s application for restriction on removal, stating, “We agr ee with the Immigration Judge that the respondent did not demonstrate . . . that she suffered ha rm rising to the level of persecution or a nexus between the harm wh ich she suffered and fears and a protected ground under the Act.” Admin. R. at 4. In affirming the IJ’s denial of protection under the CAT, the BIA st ated, “We also agree with the Immigration Judge’s conclusion that the respondent . . . failed to show that sh e is more likely than not to be tortured in El Salvador, by or with the acquiescence (to include the concept of willful blindness) of a governme nt official upon return.” Id. (internal quotation marks omitted).- 6 - Ms. Castellanos-Pineda’s thre e contentions of error all similarly assert that the IJ and the BIA failed to make specific findings regarding he r applications for relief. She maintains that, be cause the BIA summarily affirmed the IJ’s decision, this court is therefore unable to conduct a meaningful review. She first argues that she established “mem bership in a particular social group” under § 1231(b)(3)(A), based on her status as a business ow ner in El Salvador. She complains that neither the IJ nor the BIA made a specifi c finding on this issue, and she seeks a remand to allow th e BIA to consider and decide whether she is eligible for restriction on removal because she belonge d to a particular social group. She also asserts that the IJ never articulated a reas on for denying her application for restriction on removal. More specifical ly, she claims that the IJ failed to address whether she suffered past persecution and whether there is a clear probability that she would suffer persecution upon returning to El Salva dor. She seeks a remand to allow the IJ to consider her eligibility for restriction on removal, or to make a finding regarding his basis for denying that relief. Finally , regarding her application for protection under the CAT, Ms. Castellanos -Pineda argues that the IJ fa iled to articulate why she did not demonstrate that she w ould be subject to torture in El Salvador. She asks us to remand to allow the IJ to consider her eligibility for CAT protection based on mental torture, or to articulate whether he considered mental torture in denying her application.- 7 - The Attorney General argues that the IJ’s failure to make the findings alleged by Ms. Castellanos-Pineda does not hamper this court’s review because the BIA reviewed the relevant aspects of the IJ’s decision de novo. We note there is tension between the government’s position and this court’s precedent with regard to whether certain determinations are factual or legal. Compare Matter of A-S-B- , 24 I. & N. Dec. 493, 497 (BIA 2008) (characterizing question whether facts are sufficient to show a well-founded fear of pers ecution as a legal conclusion), and Sidabutar , 503 F.3d at 1122 n.6 (acknowledgi ng that preamble to regul ations enacting 8 C.F.R. § 1003.1 “suggests that the BIA is not limited to the IJ’s determinations of ‘past persecution’ and the like”), with Vicente-Elias v. Mukasey , 532 F.3d 1086, 1091 (10th Cir. 2008) (“In this circuit, the ultimate determ ination whether an alien has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in di spute and the only issue is whether those circumstances qualify as persecution.”). We need not resolv e this tension because we conclude that Ms. Castellanos-Pineda failed to exhaust her administrative remedies by raising her claims before the BIA. We therefore lack jurisdiction to consider them. Neither party addresses this issue, but we have an i ndependent duty to examine our own jurisdiction. Sierra v. INS , 258 F.3d 1213, 1216 (10th Cir. 2001). “This Court may only retain jurisdiction over clai ms challenging a final order of removal ‘if the alien has exhausted al l administrative remedies avai lable . . . as of right.’” Sidabutar , 503 F.3d at 1118 (quoting 8 U.S.C. § 125 2(d)(1)). “[W]e generally assert- 8 - jurisdiction only over those arguments that a petitioner properly presents to the BIA.” Id. Ms. Castellanos-Pineda did not raise in her BIA appeal any issue regarding the IJ’s failure to make findings. She devoted much of her BIA appeal brief to arguing that the IJ erred in denying her asylum applicati on as untimely. See Admin. R. at 23-24. She next argued that her testimony esta blished that she had suffered past persecution and that she harbors a well-f ounded fear of futu re persecution. See id. at 24-25. Lastly, she challenged the IJ’s determination that her testimony was suspect. See id. at 25. These are the cl aims she preserved for review by this court (to the extent that we otherwise ha ve jurisdiction to do so). Ms. Castellanos-Pineda did not ask th e BIA to remand to the IJ for a determination whether business owners in El Salvador cons titute a particular social group, or for an explicit finding on past persecution and the likelihood of future persecution. Indeed, based on her argument to the BIA that her evidence established past persecution, she eviden tly believed that the IJ had made a determination against her on that issue. And while she stated th at she was appealing the BIA’s denial of protection under the CAT, she made no specifi c argument in her appeal brief why the IJ’s denial of that relief was in error. Although we can assert juri sdiction over claims not raised by an alien in her BIA appeal if the BIA sufficiently c onsidered them in its final order, see Sidabutar , 503 F.3d at 1122, that narrow rule does not apply in this case.- 9 - [T]he BIA must: (1) clear ly identify a claim, is sue, or argument not presented by the petitioner; (2) exercise its discretion to entertain that matter; and (3) explicitly decide that matter in a full explanatory opinion or substantive discussion. Only then may a petitioner take an argument to court that [s]he never pursued before the BIA. Garcia-Carbajal v. Holder , 625 F.3d 1233, 1235 (10th Cir. 2010). Here, the BIA did not address sua sponte any of the issues that Ms. Castellanos-Pineda now seeks to raise in her petition for review. Ms. Castellanos-Pineda also failed to exhaust her claim that the BIA did not rule on whether she demonstrated membership in a particular social group. That claim “should have been brought before the BIA in the first instance through a motion to reconsider or reopen.” Sidabutar , 503 F.3d at 1122 (holding court lacked jurisdiction over challenge to BIA’s de nov o fact-finding on past persecution, where IJ made no finding on that is sue, because alien failed to exhaust that claim in a motion to reconsider or reopen). Because Ms. Castellanos-Pin eda failed to exhaust her administrative remedies with respect to any of the cl aims she raises in her petiti on for review, we are without jurisdiction to consider them. Th e petition for review is dismissed.

Entered for the Court
Wade Brorby Senior Circuit Judge