Carlos Ceron-Martinez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS CERON-MARTINEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-71616
Agency No. A200-690-664
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 1, 2016
Pasadena, California
Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.
Petitioner Carlos Ceron-Martinez (“Ceron”), a citizen of Mexico, petitions
for review the Board of Immigration Appeals’ (“BIA”) denial of his application for
withholding of removal. We dismiss the petition for lack of jurisdiction.
FILED
JUN 08 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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1. We lack jurisdiction to consider Ceron’s argument that the
Immigration Judge (“IJ”) and BIA failed to presume the truth of his testimony that
the hospital turned him away because he had AIDS. The Immigration and
Nationality Act provides that we may review a final order of removal only if “the
alien has exhausted all administrative remedies available to the alien as of right.” 8
U.S.C. § 1252(d)(1). “The petitioner’s failure to raise an issue to the BIA
constitutes a failure to exhaust, depriving this court of jurisdiction.” Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam). “Although a petitioner
need not raise his precise argument in administrative proceedings, he cannot satisfy
the exhaustion requirement by making a general challenge to the IJ’s decision, but,
rather, must specify which issues form the basis of the appeal.” Alvarado v.
Holder, 759 F.3d 1121, 1128 (9th Cir. 2014) (alterations, citations, and internal
quotation marks omitted).
Ceron argues in his petition that “absent an adverse credibility finding the IJ
and the BIA were obligated to accept Mr. Ceron-Martinez’s testimony regarding
the reason was turned away [from the hospital] as true.” However, Ceron never
argued this specific issue to the BIA. Rather, while he challenged the IJ’s
dismissal of his testimony as “speculation and conjecture,” he did not argue to the
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BIA that the lack of an express adverse credibility finding required that the BIA
accept his testimony as true as to why he thought the hospital turned him away.
2. We also lack jurisdiction to review whether there is a pattern or
practice of persecution of a group of persons similarly situated to Ceron on account
of his membership in a particular social group. See 8 U.S.C. § 1252(d); 8 C.F.R. §
1208.16(b)(2)(i). Although Ceron raised his pattern or practice argument in his
initial October 2013 brief filed pro se, Ceron has not shown that the BIA did, or
was required to, consider that brief. After Ceron filed his October 2013 brief, the
BIA remanded the case to the IJ who issued a supplemental decision. The BIA
then issued another briefing schedule and Ceron filed a pro se brief in December
2013, and another brief in April 2014 through counsel.
Neither the December 2013 brief nor the April 2014 brief sufficiently
asserted a pattern or practice of persecution of a group of persons. See Tall v.
Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008) (holding that petitioner did not
exhaust his due process claim that he was denied a full and fair hearing by arguing
that due process was violated on the ground that the IJ admitted uncertified
evidence). Indeed, Ceron’s December 2013 pro se brief argued specifically that “it
is clear that Mr. Ceron will experience future persecution” and “[t]herefore, Mr.
Ceron is able to meet this burden based on his individual circumstances.” Ceron’s
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reference to his “individual circumstances” further indicates that he was not
asserting a pattern or practice claim.
Additionally, Ceron has offered no reason or legal citation as to why the
BIA would be required to review the October 2013 brief when it had remanded the
case back to the IJ, who issued a new decision, following which the BIA ordered
new briefing and Ceron filed two new briefs. Indeed, the BIA’s May 30, 2014
decision indicated that it relied on only the December 2013 and April 2014 briefs.
It noted: “the applicant has not made a pattern or practice, or disfavored group
claim.” We conclude we lack jurisdiction to review whether there is
a pattern or practice of persecution of a group of persons similarly situated to
Ceron on account of his membership in a particular social group.
PETITION DISMISSED.
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Ceron-Martinez v. Lynch, No. 14-71616
Nelson, Senior Circuit Judge, dissenting:
Because I believe Ceron sufficiently exhausted his argument that the IJ and
BIA failed to presume the truth of his testimony, and that he also sufficiently raised
a pattern or practice of persecution of a group of persons claim, I respectfully
dissent.
In my view, Ceron, who was pro se for a majority of the proceedings before
the IJ and BIA, adequately raised to the BIA the issue of the IJ’s consideration of
his credibility such that we have jurisdiction to consider the merits of his argument.
See Ren v. Holder, 648 F.3d 1079, 1083–84 (9th Cir. 2011) (internal quotations
and citations omitted) (“We do not employ the exhaustion doctrine in a formalistic
manner, especially where the petitioner is pro se; general contentions can suffice as
long as they put the BIA on notice of the contested issues.”); Socop-Gonzalez v.
I.N.S., 272 F.3d 1176, 1183–84 (9th Cir. 2001) (“We hold that even though [the
petitioner] never specifically invoked the phrase ‘equitable tolling’ in his briefs to
the BIA, he sufficiently raised the issue before the BIA to permit us to review the
issue on appeal.”).
Next, I believe a fair reading of Ceron’s December 2013 and April 2014
briefs demonstrates that he has raised a pattern or practice claim. Ceron’s
December 2013 brief states that “based on different articles in Mexico it is clear
FILED
JUN 08 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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that Mr. Ceron will experience future persecution.” Ceron submitted documentary
evidence on the persecution of individuals suffering from HIV/AIDS in Mexico,
such as a news article about a gay, HIV-positive man who was tortured, beaten and
suffocated, and found dead with a sign stating in part, “This is what happens to me
for going around infecting people with AIDS.” Furthermore, Ceron’s April 2014
brief discusses the “widespread” “stigmatization and abuse of HIV-positive
individuals or people with AIDS in Mexico,” and states that Ceron “will suffer
persecution if forced to return to Mexico.”
Accordingly, I would find that we have jurisdiction to consider Ceron’s
arguments that the IJ and BIA failed to presume the truth of his testimony, and that
Ceron adequately raised a pattern or practice claim. Therefore, I would grant the
petition.

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