NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

MARIA TORRES-DERICHEY, AKA

Maria Richey, AKA Maria Del Rosario

Torres De Richey, AKA Maria Rosario

Torres-Cuevas,

 Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,

 Respondent.

No. 12-72422

Agency No. A077-990-068

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted January 8, 2016** 

Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,*** Senior

District Judge.

 

FILED

JAN 13 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 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 J. Frederick Motz, Senior District Judge for the U.S.

District Court for the District of Maryland, sitting by designation.
Page 2 of 4

Maria Torres-Derichey, a native and citizen of Mexico, petitions for review

of an order of the Board of Immigration Appeals (BIA) denying her application for

asylum, withholding of removal, and relief under the Convention Against Torture

(CAT).

1. Torres-Derichey concedes that her asylum application, which she filed

more than fifteen years after entering the United States, was untimely. 8 U.S.C.

§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). She must therefore establish “changed”

or “extraordinary” circumstances. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.

§ 1208.4(a)(4), (5). She failed to do so.

We have jurisdiction over Torres-Derichey’s claim that she established

extraordinary circumstances based on her 2002 attempt to adjust her status

following her marriage to a U.S. citizen. Husyev v. Mukasey, 528 F.3d 1172,

1177–81 (9th Cir. 2008); 8 C.F.R. § 1208.4(a)(5)(iv). However, substantial

evidence supports the BIA’s rejection of that claim, given that she sought

adjustment of status more than five years after her lawful status expired and did not

apply for asylum for more than eight years after her application for adjustment of

status was denied. See Husyev, 528 F.3d at 1181–82; 8 C.F.R. § 1208.4(a)(5). We

lack jurisdiction to consider Torres-Derichey’s argument that she established

extraordinary circumstances based on the serious illness of an immediate family
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member, see 8 C.F.R. § 1208.4(a)(5)(vi), as that argument was neither presented to

nor reached by the BIA, see 8 U.S.C. § 1252(d)(1).

We have jurisdiction over Torres-Derichey’s claim that she has

demonstrated changed circumstances based on her son’s birth and diagnosis with

disabilities. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per

curiam). But the record does not compel the conclusion that her asylum

application was filed “within a reasonable period given those ‘changed

circumstances,’” given that Torres-Derichey did not file her application until more

than seven years after her son was born and approximately four years after he was

diagnosed with additional disabilities. 8 C.F.R. § 1208.4(a)(4)(ii). We lack

jurisdiction to consider Torres-Derichey’s argument that her delay was reasonable

because her son’s health has deteriorated, as that argument is unexhausted and

relies on disputed facts. See Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir.

2013).

2. Substantial evidence supports the BIA’s denial of Torres-Derichey’s

claim for withholding of removal. Even if we assume that disabled children in

Mexico and their parents constitute a particular social group within the meaning of

the Immigration and Nationality Act, the record does not compel the conclusion

that Torres-Derichey would likely be persecuted on account of her membership in
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this group. The record does not compel the conclusion that Torres-Derichey’s son

will accompany her to Mexico, that he will suffer treatment amounting to

persecution if he does, or that she will be persecuted as his mother. See MendozaAlvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (per curiam).

3. The BIA properly denied Torres-Derichey’s CAT claim. The record does

not compel the conclusion that it is more likely than not that Torres-Derichey will

be tortured by, at the behest of, or with the acquiescence of a Mexican official if

she is removed. See 8 C.F.R. §§ 1208.16(c), 1208.18(a).

PETITION DENIED in part and DISMISSED in part.