Roberto Martinez Leyva v. ERIC H. HOLDER Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO MARTINEZ LEYVA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-75989
Agency No. A095-303-201
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2008**
San Francisco, California
Before: B. FLETCHER, THOMAS and WARDLAW, Circuit Judges.
Roberto Martinez Levya, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum and withholding
of removal, and denying his motion to remand. We have jurisdiction under 8
FILED
JUL 01 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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U.S.C. § 1252. We review for substantial evidence and will uphold the agency’s
decision unless the evidence compels a contrary conclusion. INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992). We review for abuse of discretion the denial of a
motion to remand. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.
2005). We deny the petition for review.
The record does not compel the conclusion that extraordinary circumstances
excuse the untimely filing of Martinez Levya’s asylum application. See 8 C.F.R. §
1208.4(a)(5); Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir. 2008).
Accordingly, the asylum claim is denied. Because Martinez Levya did not raise
the issue to the IJ or BIA, we lack jurisdiction to consider whether the agency erred
in interpreting the term “minor” in 8 C.F.R. § 1208.4(a)(5)(ii) to refer to persons
under eighteen years of age, as opposed to persons under twenty-one years of age.
See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (“Before a
petitioner can raise an argument on appeal the petitioner must first raise it before
the BIA or the IJ.”) (citing 8 U.S.C. § 1252(d)). We note that Martinez Levya was
twenty-two years of age at the time of his merits hearing before the IJ and his
appeal to the BIA.
We deny the petition with respect to the withholding of removal claim
because Martinez Levya failed to show that the government, or groups that the

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government is unable or unwilling to control, persecuted him in the past or that he
faces a clear probability of future persecution by such groups or the Mexican
government. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).
The BIA did not abuse its discretion in denying Martinez Levya’s motion to
remand because the motion was not supported by evidence showing prima facie
eligibility for relief. Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003).
PETITION FOR REVIEW DENIED.

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