Case: 19-60374     Document: 00515586640         Page: 1     Date Filed: 10/01/2020




              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                       October 1, 2020
                                  No. 19-60374
                                Summary Calendar                        Lyle W. Cayce
                                                                             Clerk


   Yessica Yesenia Guerrero-Alfaro,

                                                                      Petitioner,

                                       versus

   William P. Barr, U.S. Attorney General,

                                                                     Respondent.


                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                              BIA No. A206 448 815


   Before Jones, Barksdale, and Stewart, Circuit Judges.
   Per Curiam:*
          Yessica Yesenia Guerrero-Alfaro, a native and citizen of El Salvador,
   petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
   her appeal of an Immigration Judge’s (IJ) denial of: asylum, withholding of
   removal, and protection under the Convention Against Torture (CAT).


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60374      Document: 00515586640           Page: 2   Date Filed: 10/01/2020




                                     No. 19-60374


          In considering the BIA’s decision (and the IJ’s decision, to the extent
   it influenced the BIA), our court reviews legal conclusions de novo and factual
   findings for substantial evidence. Orellana-Monson v. Holder, 

,
   517–18 (5th Cir. 2012). Guerrero asserts: the BIA improperly adopted the
   IJ’s finding that no extraordinary circumstances excused the late filing of her
   application for asylum; her membership in the social group she originally
   alleged to the IJ was sufficient to establish past persecution; and she is
   entitled to withholding of removal based on her membership in a newly
   purported social group. (Guerrero does not contend the BIA erred in
   rejecting her request for relief under CAT—any such challenge is therefore
   abandoned. See Soadjede v. Ashcroft, 

, 833 (5th Cir. 2003)
   (citation omitted).)
          Guerrero does not dispute she untimely filed her application for
   asylum more than one year after she last entered the United States. See 8
   U.S.C. § 1158(a)(2)(B). Our court does not have jurisdiction to consider the
   fact-intensive issue of whether the untimeliness of her application should be
   excused. Zhu v. Gonzales, 

, 595 (5th Cir. 2007) (“[W]e do not
   have jurisdiction to review determinations of timeliness that are based on
   findings of fact”).
          Regarding Guerrero’s withholding of removal claim, she does not
   challenge the conclusions of the IJ and BIA that the social group she originally
   alleged to the IJ (“Salvadoran women who feared violence and delinquency
   in their home country”) was not cognizable, and that she failed to show a
   nexus between any persecution and her group membership. Because she
   does not dispute the validity or correctness of these conclusions, she has
   abandoned any claim of error. See 

.
          We lack jurisdiction to consider Guerrero’s entitlement to
   withholding based on her membership in her newly defined social group




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                                      No. 19-60374


   (“Salvadoran women who, despite their fear, are willing witnesses against
   their persecutors but have been turned away by police”). An alien must
   exhaust all administrative remedies available as of right before our court may
   review a final order. 8 U.S.C. §§ 1252(a)(1), (d)(1). If an issue is asserted for
   the first time on appeal to the BIA, it is not properly before the BIA and is
   unexhausted. See Eduard v. Ashcroft, 

, 195 n.14 (5th Cir. 2004)
   (noting that, for the purposes of determining whether a claim was raised to
   the IJ, “[i]t is irrelevant that Petitioners raised claims for [ ] relief before the
   BIA”); see also Milanzi v. Holder, 397 F. App’x 984, 986 (5th Cir. 2010).
   Guerrero did not present her membership in the newly purported social
   group before the IJ; instead, she raised the issue for the first time on appeal
   to the BIA. Accordingly, she did not exhaust administrative remedies. Roy
   v. Ashcroft, 

, 137 (5th Cir. 2004) (“Failure to exhaust an issue
   creates a jurisdictional bar as to that issue.”) (citation omitted).
          DISMISSED IN PART and DENIED IN PART.




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