                                                                           FILED
                               NOT FOR PUBLICATION                          JUN 27 2013

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


PABLO REMBERTO IRAHETA, AKA                       No. 11-70000
Alfaro Iraheta, AKA Remberto Pablo
Iraheta, AKA Pablo Remberto,                      Agency No. A095-012-260

                 Petitioner,
                                                  MEMORANDUM*
  v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.


                        On Petition for Review of an Order of the
                            Board of Immigration Appeals

                               Submitted June 14, 2013**
                                San Francisco, California

Before:         TASHIMA and BYBEE, Circuit Judges, and WOOD, Senior District
                Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
          ***
             The Honorable Kimba M. Wood, Senior United States District Judge
for the Southern District of New York, sitting by designation.
      Pablo Iraheta, a native of El Salvador, petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of various claims for relief from removal.

The petition will be denied in part and dismissed in part.

      1.     Iraheta first argues that the BIA erroneously barred his asylum claim

as untimely. He concedes that his application was filed outside of the one-year

period for filing an asylum claim, but he asserts that the time bar should be excused

due to extraordinary circumstances. See 8 U.S.C. § 1158(a)(2). We “may review

the agency’s application of the changed or extraordinary circumstances exception

to undisputed facts.” Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011).

Iraheta appears to argue that he delayed filing for asylum because he thought – in

part due to alleged immigration consultant fraud – that his pending application for

Temporary Protected Status (“TPS”) would afford him relief more quickly. But, as

the BIA recognized, even assuming the TPS application could effectively toll the

limitations period, Iraheta filed for TPS after the period had expired. Accordingly,

the BIA’s time bar ruling was supported by substantial evidence.

      2.     The BIA also properly denied Iraheta’s application for withholding of

removal. That application centered on Iraheta’s allegation that he had been

persecuted in El Salvador because he resisted efforts to recruit him into the Mara

Salvatrucha gang. But in a nearly identical context, we held that “young Honduran


                                         -2-
men who have been recruited by the MS-13, but who refuse to join” do not qualify

as a particular social group. See Ramos-Lopez v. Holder, 563 F.3d 855, 858 (9th

Cir. 2009) (granting deference to Matter of S-E-G, 24 I & N Dec. 579 (BIA

2008)).1 In other words, we have already rejected the theory of persecution that

Iraheta presses in this petition.

       Nor does the United Nations High Commissioner on Refugees’ March 2010

Guidance Note2 demand a different result. Such statements can have persuasive

force, but “[i]f the Attorney General’s interpretation is permissible in light of the

statute’s text, structure and purpose, we must defer under Chevron to the Attorney

General’s interpretation even if it is in tension with the UNHCR Handbook.”

Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007). Here, the Attorney

General’s interpretation of “particular social group” is permissible, and thus the




       1
              Although Ramos-Lopez was partially abrogated in Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), its central holding remains good
law. See id. at 1093 (limiting Ramos-Lopez only by asserting that “[t]o the extent
that . . . Ramos-Lopez . . . mischaracterized the ‘social visibility’ requirement by
requiring ‘on-sight’ visibility, [it is] no longer good law”).
       2
            See United Nations High Comm’r for Refugees, Guidance Note on
Refugee Claims Relating to Victims of Organized Gangs (March 2010), available
at http://www.refworld.org/docid/4bb21fa02.html.

                                          -3-
Guidance Note cannot save Iraheta’s claim. See Ramos-Lopez, 563 F.3d at 858-

62.3

       3.    The BIA’s denial of relief under the Convention Against Torture

(“CAT”) was supported by substantial evidence. First, although past torture can

support a claim for CAT relief, 8 C.F.R. § 1208.16(c)(3), the primary evidence of

harm in this case was periodic and unspecified beatings during robberies, the

pointing of a gun at Iraheta’s head, and threats made against Iraheta. These facts,

taken as true, do not compel the conclusion that Iraheta is more likely than not to

be tortured if he returns to El Salvador. See, e.g., Lopez-Cardona v. Holder, 662

F.3d 1110, 1114 (9th Cir. 2011). Second, the BIA permissibly concluded that the

Salvadoran government would not consent to, or acquiesce in, gang violence

against Iraheta. For example, Iraheta himself testified that police officers had

come to guard his home after he reported one incident.

       4.    Iraheta also asserts that the BIA erroneously found him ineligible for

voluntary departure. See 8 C.F.R. § 1240.26(c). However, because the denial was

discretionary, we lack jurisdiction to consider this claimed error. See Gomez-



       3
              Iraheta’s claim that he was persecuted based on his political opinion is
also foreclosed by Ramos-Lopez. See Ramos-Lopez, 563 F.3d at 862 (rejecting
claim based on political opinion because petitioner “allege[d] no facts in support of
a political opinion, actual or imputed, beyond his refusal to join the MS–13”).

                                         -4-
Lopez v. Ashcroft, 393 F.3d 882, 886 (9th Cir. 2005); 8 U.S.C. § 1229c(f).

Although Iraheta frames the IJ and BIA’s rulings as refusals to exercise discretion,

the record shows that the rulings rested on a discretionary determination that

Iraheta lacked the moral character necessary for eligibility for voluntary departure.

This claim of error, accordingly, is dismissed.

      PETITION DENIED in part and DISMISSED in part.




                                         -5-
