NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ENRIQUE FRANCISCO HERNANDEZ, No. 20-71786 AKA Juan Bosco Hernandez-Diaz, Agency No. A215-856-169 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 10, 2021** Pasadena, California Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges. Enrique Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and * 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). protection under the Convention Against Torture (“CAT”). We review de novo the BIA’s legal determinations and review “for substantial evidence the BIA’s factual findings, which should be upheld unless the evidence compels a contrary result.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020) (quotation and citation omitted). Whether a proposed social group meets the BIA’s requirements for a cognizable particular social group (“PSG”) “is a question of law we review de novo.” Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (citation omitted).1 As the parties are familiar with the facts, we do not recount them here. We deny the petition for review. 1. We have jurisdiction to review the BIA’s extraordinary circumstances determination because the petition’s relevant underlying facts are undisputed. See Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008). Reviewing de novo whether Hernandez established an extraordinary circumstance, see id., we hold that his PTSD does not qualify as an exception to the one-year filing deadline for asylum applications under 8 C.F.R. § 1208.4(a)(2)(i)(B), (a)(5). Although PTSD may be extraordinary in some circumstances, the record shows Hernandez’s PTSD was not as “serious” as contemplated by the asylum 1 Our case law appears to be inconsistent regarding the correct standard of review for PSGs. Compare Santos-Ponce, 987 F.3d at 890, with Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020) (giving Chevron deference to the BIA’s interpretation of PSG). We do not resolve this discrepancy here because the outcome is the same—Hernandez does not show his groups are cognizable under either standard. 2 regulations. See id. § 1208.4(a)(5)(i). Some of his symptoms were improving; he was never hospitalized for mental health reasons; and he was able to financially support his family and interact capably with the government. This evidence is substantial and suggests his PTSD was manageable, not extraordinary, and Hernandez presents no strong evidence compelling a contrary conclusion. See Diaz-Reynoso, 968 F.3d at 1076. Hernandez’s reliance on an out-of-circuit case and an unpublished decision to argue otherwise is unconvincing. Because Hernandez did not establish extraordinary circumstances in the first instance, we do not reach the question …
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