United States Court of Appeals

for the Fifth Circuit

No. 19-60374

Summary Calendar

Yessica Yesenia Guerrero-Alfaro, 

Petitioner,

versus

William P. Barr, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A206 448 815

Before Jones, Barksdale, and Stewart, Circuit Judges.

Per Curiam:*

Yessica Yesenia Guerrero-Alfaro, a native and citizen of El Salvador, 

petitions for review of the Board of Immigration Appeals’ (BIA) dismissing 

her appeal of an Immigration Judge’s (IJ) denial of: asylum, withholding of 

removal, and protection under the Convention Against Torture (CAT). 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 1, 2020

Lyle W. Cayce

Clerk

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In considering the BIA’s decision (and the IJ’s decision, to the extent 

it influenced the BIA), our court reviews legal conclusions de novo and factual 

findings for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511, 

517–18 (5th Cir. 2012). Guerrero asserts: the BIA improperly adopted the 

IJ’s finding that no extraordinary circumstances excused the late filing of her

application for asylum; her membership in the social group she originally

alleged to the IJ was sufficient to establish past persecution; and she is 

entitled to withholding of removal based on her membership in a newly 

purported social group. (Guerrero does not contend the BIA erred in 

rejecting her request for relief under CAT—any such challenge is therefore 

abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003)

(citation omitted).)

Guerrero does not dispute she untimely filed her application for 

asylum more than one year after she last entered the United States. See 8 

U.S.C. § 1158(a)(2)(B). Our court does not have jurisdiction to consider the 

fact-intensive issue of whether the untimeliness of her application should be 

excused. Zhu v. Gonzales, 493 F.3d 588, 595 (5th Cir. 2007) (“[W]e do not 

have jurisdiction to review determinations of timeliness that are based on 

findings of fact”). 

Regarding Guerrero’s withholding of removal claim, she does not 

challenge the conclusions of the IJ and BIAthat the social group she originally

alleged to the IJ (“Salvadoran women who feared violence and delinquency 

in their home country”) was not cognizable, and that she failed to show a 

nexus between any persecution and her group membership. Because she 

does not dispute the validity or correctness of these conclusions, she has 

abandoned any claim of error. See Soadjede, 324 F.3d at 833.

We lack jurisdiction to consider Guerrero’s entitlement to 

withholding based on her membership in her newly defined social group 

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(“Salvadoran women who, despite their fear, are willing witnesses against 

their persecutors but have been turned away by police”). An alien must 

exhaust all administrative remedies available as of right before our court may 

review a final order. 8 U.S.C. §§ 1252(a)(1), (d)(1). If an issue is asserted for 

the first time on appeal to the BIA, it is not properly before the BIA and is 

unexhausted. See Eduard v. Ashcroft, 379 F.3d 182, 195 n.14 (5th Cir. 2004)

(noting that, for the purposes of determining whether a claim was raised to 

the IJ, “[i]t is irrelevant that Petitioners raised claims for [ ] relief before the 

BIA”); see also Milanzi v. Holder, 397 F. App’x 984, 986 (5th Cir. 2010). 

Guerrero did not present her membership in the newly purported social 

group before the IJ; instead, she raised the issue for the first time on appeal 

to the BIA. Accordingly, she did not exhaust administrative remedies. Roy 

v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (“Failure to exhaust an issue 

creates a jurisdictional bar as to that issue.”) (citation omitted). 

DISMISSED IN PART and DENIED IN PART. 

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