NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC PEREYRA-ROJAS,

 Petitioner,

 v.

MERRICK B. GARLAND, Attorney 

General,

 Respondent.

No. 21-1199

Agency No.

A200-551-937

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted July 13, 2023**

San Francisco, California

Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.

Eric Pereyra-Rojas petitions for review of the Board of Immigration

Appeals’ (“BIA”) dismissal of his appeal of the Immigration Judge’s (“IJ”) final 

order of removal. Because the parties are familiar with the facts of this case, we

recite them only as necessary for the disposition of this petition. We have

jurisdiction, see 8 U.S.C. § 1252, and we deny the petition.

1. For the first time in these proceedings, Pereyra-Rojas challenges

* 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

JUL 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-1199

the adequacy of the notice to appear. Although the exhaustion requirement in

8 U.S.C. § 1252(d)(1) is not jurisdictional, Santos-Zacaria v. Garland, 143 S. 

Ct. 1103, 1110 (2023), the exhaustion requirement is mandatory if a party

timely urges us to apply it, Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th 

Cir. 2023). Because the government timely raised § 1252(d)(1), Pereyra-Rojas’s

challenge to the adequacy of the notice to appear is not properly before us.

2. Pereyra-Rojas, through counsel, waived an explanation of his

procedural rights at the master calendar hearing. He now argues that the IJ

should have explained to him his apparent eligibility for pre-conclusion

voluntary departure. An IJ may, in some situations, question an alien directly to

“confirm he understands the legal consequences of his decisions. But those 

circumstances typically involve an applicant who is proceeding pro se. On the 

other hand, we typically allow IJs to rely on representations by counsel.”

Troncoso-Oviedo v. Garland, 43 F.4th 936, 942 (9th Cir. 2022) (cleaned up).

The IJ was entitled to rely on Pereyra-Rojas’s attorney’s waiver of an

explanation of Pereyra-Rojas’s procedural rights.

3. Pereyra-Rojas, through counsel, conceded that his conviction for

embezzlement, Cal. Penal Code § 503, was a crime of moral turpitude that

barred cancellation of removal and post-conclusion voluntary departure. See de 

Rodriguez v. Holder, 724 F.3d 1147, 1152 (9th Cir. 2013) (explaining that an

alien’s concessions “are binding” where “there is no possibility that [the alien]

mistakenly conceded removability based on a now-questionable rule of law”
3 21-1199

(distinguishing Huerta–Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.

2003))).

4. The IJ analyzed Pereyra-Rojas’s proposed particular social groups

(“PSGs”) under the specific facts of this case, see Diaz-Reynoso v. Barr, 968 

F.3d 1070, 1086 (9th Cir. 2020), by examining the documents he submitted

regarding country conditions in Peru1 and by concluding that those documents

did not prove that his proposed PSGs are sufficiently distinct or particular in

Peru. The IJ further concluded that Pereyra-Rojas did not prove a likelihood of

future persecution “on account of” his membership in any such PSG, which is

consistent with a determination of whether membership in a PSG is “a reason”

for persecution, see Barajas-Romero v. Lynch, 846 F.3d 351, 357–60 (9th Cir. 

2017).

5. The record does not compel the conclusion that Pereyra-Rojas will

more likely than not be tortured with the acquiescence of government officials if

removed to Peru, as is required to obtain relief under the Convention Against

Torture. Garcia-Milian v. Holder, 755 F.3d 1026, 1033–35 (9th Cir. 2014).

PETITION DENIED.

1 Neither the documents cited by the IJ nor any other documents submitted by 

Pereyra-Rojas mention persecution of Peruvian deportees or Pereyra-Rojas’s family, 

which were the two proposed PSGs in which Pereyra-Rojas claimed membership.