                                                                           FILED
                            NOT FOR PUBLICATION                            SEP 30 2015

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



                            FOR THE NINTH CIRCUIT


JOSE ALFREDO HERNANDEZ                           No. 11-72221
CHIGUIL,
                                                 Agency No. A070-785-396
              Petitioner,

  v.                                             MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted September 3, 2015
                              Pasadena, California

Before: O’SCANNLAIN, FISHER, and BYBEE, Circuit Judges.

       The facts and procedural posture of this case are known to the parties, and

we do not repeat them here. Jose Alfredo Hernandez Chiguil filed a petition for

review of the Board of Immigration Appeals’ decision affirming an order of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
removal and denying an application for asylum. For the reasons below, we dismiss

the petition in part, for lack of jurisdiction, and deny the remainder of the petition.

      Chiguil’s first argument—that the IJ lacked substantial evidence when it

found that Chiguil did not suffer past persecution—is not properly before us. Our

review of the BIA’s decision is limited to “the grounds relied upon by [the]

agency.” Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)

(quoting Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)).

And here the BIA clearly assumed “that [Chiguil] has established past

persecution” and instead ruled against him on alternative grounds. We thus cannot

review an aspect of the BIA’s decision that it assumed in Chiguil’s favor.

      Chiguil next argues that the IJ lacked substantial evidence when it found that

changed circumstances in Guatemala precluded any well-founded fear of future

persecution. He also argues that the BIA’s analysis of changed circumstances

similarly lacked substantial evidence and failed to comport with due process.

Chiguil failed to exhaust these arguments before the BIA.

      Failure to brief issues before the BIA amounts to a failure to exhaust, which

in turn precludes our jurisdiction. See 8 U.S.C. § 1252(d)(1); Alvarado v. Holder,

759 F.3d 1121, 1127–28 (9th Cir. 2014). As stated in the BIA’s decision, Chiguil

“[did] not challenge [the IJ’s factual] finding [about changed circumstances] on


                                           2
appeal or present an argument to show that this finding was in error.” Having

waived any challenge to the IJ’s finding before the BIA, Chiguil also precluded our

ability to reach the merits of his argument.

      Chiguil contends, however, that the BIA actually reached the merits of his

changed circumstances argument. He points to the BIA’s observation in a footnote

that the State Department country report for Guatemala showed “no reports of

politically motivated killings by the government or its agents, and no politically

motivated disappearances.” We grant that this gives some appearance of having

reached the merits of Chiguil’s claim because the IJ did not mention these specific

aspects of the country report in its decision. See Vizcarra-Ayala v. Mukasey, 514

F.3d 870, 873 (9th Cir. 2008) (“[C]laims addressed on the merits by the BIA are

exhausted.”). On the whole, however, the BIA’s passing observation that

circumstances appear to have in fact changed was just that—a passing observation.

The basis of the BIA’s ruling was quite clear: Chiguil waived any challenge to the

IJ’s finding of changed circumstances before the BIA, and the BIA was

accordingly obliged to deny him relief. We are without jurisdiction to consider

Chiguil’s argument on the merits.

      We are similarly without jurisdiction to consider Chiguil’s third

argument—that the BIA violated his right to due process and abused its discretion


                                           3
by failing to consider whether he was eligible for humanitarian asylum. Chiguil

never argued to the BIA that he was entitled to humanitarian asylum. We

accordingly lack jurisdiction to consider it. See Rodas-Mendoza v. INS, 246 F.3d

1237, 1240 (9th Cir. 2001) (per curiam) (holding petitioner waived humanitarian

asylum claim not raised before either the IJ or the BIA). But even if we did, he

cites no authority requiring sua sponte consideration of humanitarian asylum

claims. Cf. Silaya v. Mukasey, 524 F.3d 1066, 1072 (9th Cir. 2008) (remanding to

the BIA “to consider in the first instance whether it wishes to grant” humanitarian

asylum where the petitioner requested humanitarian asylum before the IJ and the

issue was never adjudicated); Matter of D-I-M, 24 I. & N. Dec. 448, 450 (BIA

2008) (noting regulatory framework for humanitarian asylum, but by no means

requiring that analysis be conducted sua sponte).

      Finally, Chiguil argues that the BIA denied him due process and abused its

discretion when it “failed to decide whether or not [Chiguil] established past

persecution and did not provide an explanation for simply assuming ‘arguendo’

that [Chiguil] could establish past persecution.” This argument has no merit. The

BIA is not required to explain its decision to rule on alternative grounds. See

Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir. 1998) (noting that “the BIA did not

need to make a finding on whether [the petitioner] had demonstrated past


                                          4
persecution” because it “found that the INS had rebutted the presumption” of a

well-founded fear of future persecution). This was neither an abuse of discretion

nor a denial of due process.

      We DISMISS Chiguil’s petition for review with respect to his unexhausted

claims and we DENY the balance of his petition.




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