FILED

NOT FOR PUBLICATION

AUG 28 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO DE JESUS CABALLEROS- No. 18-71971

FLORES,

Agency No. A204-483-496 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted August 26, 2019** Seattle, Washington

Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.

El Salvador native Roberto de Jesus Caballeros-Flores (“Caballeros-Flores”)

petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). claims for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). We deny the petition.

Caballeros-Flores came to the United States as a nonimmigrant visitor and was

granted deferred action under the Deferred Action for Childhood Arrivals program

through May 2015. However, he did not file an application for asylum until January

2018, after being placed in removal proceedings. The Immigration Judge ruled his

asylum application was untimely, a finding he did not challenge until his brief to this

court. We lack jurisdiction over this issue because it was not exhausted before the

BIA. See Alvarado v. Holder, 759 F.3d 1121, 1127–28 (9th Cir. 2014); Sola v.

Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013). Caballeros-Flores also filed a claim

below for CAT protection, but does not challenge the agency’s CAT ruling in his

opening brief, and has thus waived this issue as well. Rizk v. Holder, 629 F.3d 1083,

1091 n.3 (9th Cir. 2011).

Thus, the only issue properly before us is Caballeros-Flores’s claim for

withholding of removal. However, he falls short of satisfying the higher standard that

it is more likely than not he would be persecuted on account of his sexual orientation

by a group the government is unable or unwilling to control. 8 C.F.R. § 1208.16(b).

The BIA cited country condition reports indicating that although there have been some

acts of violence in El Salvador against this social group, the government has also

2 prosecuted individuals who harm others on account of sexual orientation and that the

government is taking “extraordinary measures” to combat gang violence. Laws that

discriminate against same-sex couples, such as precluding marriage or adoption, do

not rise to the level of persecution. Cf. Mansour v. Ashcroft, 390 F.3d 667, 672–73

(9th Cir. 2004).

PETITION DENIED.

3