Marco Guerrero-Ruiz v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO GUERRERO-RUIZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-628
Agency No. A208-303-424
MEMORANDUM*
MARCO GUERRERO-RUIZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-2030
Agency No. A208-303-424
FILED
APR 11 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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MARCO GUERRERO-RUIZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-768
Agency No. A208-303-424
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 9, 2024**
Pasadena, California
Before: SILER,*** BEA, and IKUTA, Circuit Judges.
Marco Guerrero-Ruiz, a native and citizen of Mexico, seeks review of an
order of the Board of Immigration Appeals (BIA) dismissing his appeal of a final
order of removal issued by an Immigration Judge (IJ), as well as the BIA’s orders
denying his motions to dismiss and reopen. We have jurisdiction under 8 U.S.C.
§ 1252(a), and we deny the petitions for review.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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Guerrero-Ruiz’s brief before the BIA failed to challenge the IJ’s
determinations that his proposed particular social group was not cognizable and
that he was not a member of that particular social group. Therefore, the BIA did
not err in determining that Guerrero-Ruiz forfeited those determinations. See
Matter of R-A-M-, 25 I. & N. Dec. 657, 658 n.2 (BIA 2012) (respondent waived
issue by failing to “appeal the [IJ’s] decision regarding [a particular] aspect of his
claim”); Honcharov v. Barr, 924 F.3d 1293, 1296 (9th Cir. 2019) (“The [BIA] also
has the authority to prescribe procedural rules that govern the proceedings before
it, and procedural default rules are consistent with this authority.”). Nor did the
BIA err in declining to consider Guerrero-Ruiz’s proposed particular social group,
which was different from the one argued before the IJ. See Honcharov, 924 F.3d at
1297 (“[T]he [BIA] did not err when it declined to consider [petitioner’s] proposed
particular social groups that were raised for the first time on appeal.”). By not
properly raising these arguments before the BIA, Guerrero-Ruiz also failed to
exhaust them. See 8 U.S.C. § 1252(d)(1); Santos-Zacaria v. Garland, 598 U.S.
411, 419 (2023) (holding that § 1252(d)(1) is a non-jurisdictional claim-processing
rule); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (a petitioner is
“deemed to have exhausted only those issues he raised and argued in his brief
before the BIA”). We therefore do not consider these arguments. See Umana-
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Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (denying petition on failure-
to-exhaust grounds). Because the IJ’s decisions regarding Guerrero-Ruiz’s
proposed particular social group are dispositive of his asylum and withholding of
removal applications, the BIA did not err in dismissing Guerrero-Ruiz’s appeal as
to these applications.
As to Guerrero-Ruiz’s claim for relief under the Convention Against Torture
(CAT), the BIA did not err in determining that he forfeited any challenge to the
IJ’s “finding that he has not established he more likely than not will be tortured in
Mexico.” The IJ’s determination of this issue disposes of Guerrero-Ruiz’s CAT
claim. Again, by not challenging that determination in his brief before the BIA,
Guerrero-Ruiz failed to exhaust it. See 8 U.S.C. § 1252(d)(1); Abebe, 554 F.3d at
1208. We therefore do not consider this argument, and conclude the BIA did not
err in dismissing Guerrero-Ruiz’s appeal as to CAT relief. See Umana-Escobar,
69 F.4th at 550.
The BIA did not err in rejecting Guerrero-Ruiz’s argument that the IJ
improperly denied his request to withdraw his pro se pleadings which conceded the
factual allegations in the Notice to Appear. The IJ properly advised Guerrero-Ruiz
of his rights, and an IJ may “accept admissions from an unrepresented alien except
in circumstances not pertinent here.” Pagayon v. Holder, 675 F.3d 1182, 1190
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(9th Cir. 2011); 8 C.F.R. § 1240.10(c). In any event, Guerrero-Ruiz has not shown
any prejudice, given that at a later hearing his attorney conceded the allegations in
the Notice to Appear and Guerrero-Ruiz has not identified any evidence
contradicting the allegations in the Notice to Appear. See Santiago-Rodriguez v.
Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“Typically, an attorney’s in-court
admission of the [Notice to Appear’s] allegations made on behalf of his alien client
is treated no differently” than the alien’s admission).
Guerrero-Ruiz’s challenge to the BIA’s determination that the IJ did not err
in denying Guerrero-Ruiz’s motion to consolidate his case with his family
members’ cases also fails. An IJ may “take any . . . action consistent with
applicable law and regulations as may be appropriate.” 8 C.F.R.§ 1240.1(a)(1)(iv).
Guerrero-Ruiz does not cite any authority calling the agency’s determination here
into question. Moreover, given that Guerrero-Ruiz never submitted any evidence
from his family members’ cases or identified any such evidence in his brief,
Guerrero-Ruiz has not shown that he was prejudiced by the denial of his motion to
consolidate. See Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021) (“We
apply ‘traditional administrative law principles’ in reviewing immigration agency
decisions,” including the rule of prejudicial error. (quoting Garland v. Dai, 593
U.S. 357, 369 (2021))).
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The BIA did not err in denying Guerrero-Ruiz’s July 2022 motion to dismiss
his case without prejudice. Guerrero-Ruiz’s characterization of the government’s
position as not opposing his motion was inaccurate, as the government indicated
only that if Guerrero-Ruiz was “seeking a motion to reopen and dismissal
proceedings in this case, [he could] make a request for such a motion and it would
be reviewed.”
The BIA also did not abuse its discretion in denying Guerrero-Ruiz’s
untimely January 2023 motion to reopen and dismiss without prejudice. Guerrero-
Ruiz’s argument that the BIA erred in holding that no extraordinary circumstances
supported equitable tolling is forfeited, because he failed to raise it in his opening
brief. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020). To the
extent he argues that the BIA erred because the government did not oppose the
motion to reopen and dismiss without prejudice, it fails for the same reason as
above: the government did not state that it was unopposed to those motions.
PETITIONS DENIED.
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