                                                                              FILED
                             NOT FOR PUBLICATION                              DEC 11 2013

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



                              FOR THE NINTH CIRCUIT


NATH DOUGPANYA; MATHINEE                         No. 08-73326
CHAIVORAPOJ,
                                                 Agency Nos.        A098-406-549
              Petitioners,                                          A098-406-550

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                             Submitted December 5, 2013**
                               San Francisco, California

Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.

       Nath Dougpanya and, derivatively, his wife Mathinee Chaivorapoj, petition

for review of the Board of Immigration Appeals’ (“BIA”) final order dismissing

his appeal of the Immigration Judge’s (“IJ”) decision denying him asylum,


        *
             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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).

We deny the petition for review. Because the parties are familiar with the facts and

procedural history of the case, we need not recount them here.

                                           I

      Dougpanya failed to raise his claim of ineffective assistance of counsel

before the BIA. Because he failed to exhaust the claim before the agency, we lack

jurisdiction to hear the claim and must dismiss it. 8 U.S.C. § 1252(d); see also

Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000) (“We . . . require an

alien who argues ineffective assistance of counsel to exhaust his administrative

remedies by first presenting the issue to the BIA.”).

                                          II

      We also lack jurisdiction over Dougpanya’s claim that the BIA erred in

determining that his asylum claim was time-barred. An alien must file an

application for asylum “within 1 year after the date of the alien’s arrival in the

United States.” 8 U.S.C. § 1158(a)(2)(B). If the application is late, as

Dougpanya’s is in this case, “the Government may still consider [it] if the applicant

establishes (1) changed circumstances that materially affect the applicant’s

eligibility for asylum or (2) extraordinary circumstances directly related to the




                                           2
delay in filing an application.” Singh v. Holder, 656 F.3d 1047, 1052 (9th Cir.

2011) (citing 8 U.S.C. § 1158(a)(2)(D)).

      We may review the BIA’s determination about changed or extraordinary

circumstances “only with regard to constitutional claims and questions of law.”

Gasparyan v. Holder, 707 F.3d 1130, 1133 (9th Cir. 2013). Thus, we may only

review “the agency’s application of the changed or extraordinary circumstances

exception to undisputed facts.” Singh, 656 F.3d at 1051. Here, the parties dispute

the facts underlying the BIA’s changed circumstances determination. As a result,

we lack jurisdiction to review the BIA’s determination that the asylum petition was

untimely. 8 U.S.C. § 1158(a)(3).

                                           III

      Dougpanya argues that the BIA erred in its analysis of his withholding

claim. Because Dougpanya did not contend before the BIA that he was persecuted

on account of political opinion, we lack jurisdiction to consider that issue. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (holding that a petitioner

who fails to raise an issue before the BIA has failed to exhaust his administrative

remedies, which deprives this court of jurisdiction).

       Dougpanya did argue he would be persecuted as a part of a particular social

group. However, unlike the petitioner in Henriquez-Rivas v. Holder, 707 F.3d


                                           3
1081, 1085-86, 1091-93 (9th Cir. 2013) (en banc), Dougpanya has not sufficiently

identified a specific social group, with the requisite social visibility, to support a

withholding of removal claim. Therefore, the BIA properly denied it.

      Dougpanya did not raise CAT relief in his brief to this court and has

consequently waived that issue. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th

Cir. 2011).



      PETITION DISMISSED IN PART; DENIED IN PART.




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