                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JAN 4 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JORGE BALDERAS-JARAMILLO, AKA                   No.    14-72661
Jaramillo Balderas, AKA Jorge Edwardo
Balderas,                                       Agency No. A205-319-390

                Petitioner,

 v.

JEFFERSON B. SESSIONS III, Attorney             MEMORANDUM*
General,

                Respondent.

                     On Petition for Review of an Order of the
                        Department of Homeland Security

                          Submitted December 7, 2017**
                              Pasadena, California

Before: KELLY,*** CALLAHAN, and BEA, Circuit Judges.

      Petitioner Jorge Balderas-Jaramillo (“Petitioner”), a native and citizen of



      *
             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).
      ***
            The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Mexico, petitions for review of an Immigration Judge’s (“IJ”) concurrence in a

Department of Homeland Security (“DHS”) asylum officer’s determination he

lacked a reasonable fear of persecution or torture in Mexico. We have jurisdiction

under 8 U.S.C. § 1252(a), and we deny the petition.

      Petitioner claimed he feared that Mexican police or military would confuse

him for a gang or cartel member, due to his tattoos, and therefore kidnap and

torture him. The IJ found that Petitioner’s feared harm did not bear any nexus to a

protected ground and that Petitioner did not state more than a speculative fear of

torture by or with the acquiescence of government officials. We review this

determination by the IJ for substantial evidence. Andrade–Garcia v. Lynch, 828

F.3d 829, 836 (9th Cir. 2016).

      Substantial evidence supports the IJ’s determination. First, Petitioner argues

that his fear of persecution is based on a protected ground because his gang tattoos

identify him as part of a particular “social group,” namely “former gang

member[s].” But tattooed former gang members do not constitute a particular

social group. Arteaga v. Mukasey, 511 F.3d 940, 945–46 (9th Cir. 2007)

(“‘Tattooed gang member’ falls outside the Ninth Circuit’s definition of social

group.”). Furthermore, Petitioner does not cite to any record evidence that the

Mexican government would harm him based on any imputed political opinion, as

opposed to imputed gang affiliation, which is not a protected ground.


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      Second, Petitioner fails to point to any record evidence to show that he faces

a “particularized threat of torture . . . beyond that of which all citizens of [the

country of removal] are at risk,” Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th

Cir. 2008), or to show a non-speculative possibility that he will be tortured with the

involvement or acquiescence of the Mexican government, 8 C.F.R.

§ 1208.18(a)(1). Even assuming that this argument is not therefore waived,

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994), the submitted country

materials mostly describe generalized strife and are, at best, ambiguous as to the

significance of tattoos. It is the province of the agency to interpret ambiguous

country condition materials. See Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir.

2008).

      Petitioner further argues he is entitled to a “well-reasoned decision” under 8

C.F.R. § 208.31(g), and the IJ’s two-sentence decision was therefore inadequate.

But nothing in the text of § 208.31(g) facially requires the IJ’s decision to take any

particular shape or form,1 and Petitioner cites no authority for reading such a

requirement into the regulation. This argument is therefore waived. Greenwood,



1
  The regulation states, in pertinent part, only that “[i]f the immigration judge
concurs with the asylum officer’s determination that the alien does not have a
reasonable fear of persecution or torture, the case shall be returned to the Service
for removal of the alien,” and “[n]o appeal shall lie from the immigration judge’s
decision.” 8 C.F.R. § 208.31(g)(1).


                                            3                                     14-72661
28 F.3d at 977 (“We will not manufacture arguments for an appellant, and a bare

assertion does not preserve a claim . . . .”).

         Finally, this court lacks jurisdiction to review Petitioner’s challenges to

the underlying removal order—that is, whether Petitioner was removable as an

aggravated felon because of his 2014 California robbery conviction, and whether

the agency denied him due process in so finding—because Petitioner failed to

exhaust remedies provided to him by right under 8 C.F.R. § 238.1. Apparently to

attack collaterally the underlying administrative removal order, Petitioner argues

that the government violated 8 U.S.C. § 1228 in failing to give him a legal aid list

to facilitate access to pro bono counsel,2 and in failing to give him an opportunity

to inspect and rebut the government’s evidence against him.

         However, this court has held that 8 U.S.C. § 1252(d)(1) requires exhaustion

of due-process-style claims that are “procedural in nature,” such as “absence of

counsel and lack of opportunity to present a case.” Barron v. Ashcroft, 358 F.3d

674, 678 (9th Cir. 2004). Exhaustion is a jurisdictional requirement. 8 U.S.C.

§ 1252(d) (“A court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.”). Pursuant

to 8 C.F.R. § 238.1, Petitioner had a right to file a response to the government’s

charges, within ten calendar days, to “rebut[] the allegations supporting the charge


2
    On the contrary, the record contains a copy signed by Petitioner.

                                             4                                    14-72661
and/or request[] the opportunity to review the Government’s evidence.” The

Notice of Intent served upon Petitioner advised him of his right to respond under 8

C.F.R. § 238.1; Petitioner simply failed to avail himself of that right. Because

Petitioner’s challenges to the underlying removal order are “procedural in

nature”—and the alleged deficiencies could have been resolved through the

remedies available to him as of right under 8 C.F.R. § 238.1—this court lacks

jurisdiction to review them under 8 U.S.C. § 1252(d)(1).

      PETITION DENIED.




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