NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRAULIO SARABIA-PEREZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 17-71189 

Agency No. A201-240-981 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 14, 2021**

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges. 

Braulio Sarabia-Perez, a native and citizen of Mexico, petitions for review of 

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an 

immigration judge’s decision denying his application for asylum, withholding of 

removal, and relief under the Convention Against Torture (“CAT”), and denying 

* 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

DEC 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-71189 

his request for administrative closure. We have jurisdiction under 8 U.S.C. § 1252. 

We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 

F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.

The record does not compel the conclusion that Sarabia-Perez applied for 

asylum within a reasonable time of any changed or extraordinary circumstances as 

to excuse the untimely filing of his asylum application. See 8 C.F.R. 

§ 1208.4(a)(2), (4)-(5); see also Husyev v. Mukasey, 528 F.3d 1172, 1181-82 (9th 

Cir. 2008). Thus, Sarabia-Perez’s asylum claim fails.

Substantial evidence supports the determination that Sarabia-Perez failed to 

establish he suffered harm that rises to the level of persecution. See Baghdasaryan 

v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (an applicant who alleges past 

persecution has the burden of proving that the treatment rises to the level of 

persecution). Substantial evidence also supports the determination that SarabiaPerez failed to establish he would be persecuted on account of a protected ground. 

See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (an applicant “must provide 

some evidence of [motive], direct or circumstantial”); see also Molina-Morales v. 

INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (harm based on personal retribution is 

not persecution on account of a protected ground). We do not consider SarabiaPerez’s social group claim based on reporting a crime, because the BIA did not 

decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 
3 17-71189 

2011) (review limited to the grounds relied on by the BIA), and Sarabia-Perez does 

not contend the BIA erred in finding that this social group claim was not properly 

before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) 

(failure to contest issue in opening brief resulted in waiver). Thus, Sarabia-Perez’s

withholding of removal claim fails.

Substantial evidence supports the BIA’s denial of CAT relief because 

Sarabia-Perez failed to show it is more likely than not he will be tortured by or 

with the consent or acquiescence of the government if returned to Mexico. See 

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Wakkary v. Holder, 

558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

There was no abuse of discretion in the denial of administrative closure. See 

Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 891-93 (9th Cir. 2018) (holding the 

non-exhaustive list of factors in Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 

2012), provides a standard for reviewing administrative closure decisions).

We do not consider the materials Sarabia-Perez references in his opening 

brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 

963 (9th Cir. 1996) (en banc). 

The temporary stay of removal remains in place until issuance of the 

mandate.

PETITION FOR REVIEW DENIED.