Avelar Ramos v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE RAUL AVELAR RAMOS, No. 21-1432
Agency No.
Petitioner, A095-135-450
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2023**
Pasadena, California
Before: N.R. SMITH, LEE, and VANDYKE, Circuit Judges.
Petitioner Jose Raul Avelar Ramos seeks review of a Board of Immigration
Appeals (BIA) order dismissing his appeal from an Immigration Judge’s (IJ)
decision denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
*
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).
Petitioner, a citizen of both El Salvador and Guatemala, illegally entered
the United States in 2000. He obtained temporary protected status in 2002 but
was denied renewal in 2003 due to his DUI convictions. In March 2008, the
Department of Homeland Security initiated removal proceedings by serving
Petitioner with a notice to appear. In March 2011, almost eleven years after his
arrival, Petitioner applied for asylum, withholding of removal, and CAT relief.
The IJ denied relief and ordered Petitioner’s removal because he (1) did not
qualify for an exception to the timeliness requirement for asylum applications;
(2) had not established past or probable future persecution on the basis of a
protected ground; and (3) had not established it was more likely than not he would
be tortured with government consent or acquiescence if returned to El Salvador
or Guatemala. The BIA affirmed the IJ’s order.
We review the agency’s legal conclusions de novo and its factual findings
for substantial evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th
Cir. 2022). “Whether a group constitutes a ‘particular social group’ … is a
question of law [this court] review[s] de novo.” Perdomo v. Holder, 611 F.3d
662, 665 (9th Cir. 2010). But whether an applicant has shown that his persecutor
was or would be motivated by a protected ground—i.e., whether the “nexus”
requirement has been satisfied—is reviewed under the substantial evidence
standard. See Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009). Under
this deferential standard, the agency’s factual findings are “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
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8 U.S.C. § 1252(b)(4)(B). And to reverse the agency’s conclusion under
substantial evidence review, we “must find that the evidence not only supports
that conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992).1
First, Petitioner has provided no evidence of extraordinary circumstances
to excuse the decade-long delay in filing his asylum application. Although
“extraordinary circumstances” may excuse a delay past the one-year filing
deadline, Husyev v. Mukasey, 528 F.3d 1172, 1177–78 (9th Cir. 2008),
Petitioner’s arguments that he “was unaware of his obligation” to timely file and
was unable to retain counsel are unavailing. Ignorance of the law and lack of
legal counsel are not “extraordinary circumstances.” See Alquijay v. Garland, 40
F.4th 1099, 1103–04 (9th Cir. 2022) (“[I]gnorance of the law is no excuse.”); Al
Ramahi v. Holder, 725 F.3d 1133 (9th Cir. 2013) (“[D]ifficulties in obtaining
representation [do not make a] delay reasonable.”). Petitioner has provided no
excusable reason that he could not have filed his application before 2011.
Second, as to Petitioner’s withholding claim, he argues that his family
experienced past persecution, testifying that his father and uncles were murdered
in the 1970s by unknown individuals and for unknown reasons. But he also
acknowledged that his family has had no further problems in Guatemala since
1
Where, as here, the BIA adopted and affirmed the IJ’s decision pursuant to
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), “we revisit both
decisions and treat the IJ’s reasons as those of the BIA.” Gutierrez v. Holder,
662 F.3d 1083, 1086 (9th Cir. 2011) (citation omitted).
3 21-1432
that time. Moreover, the threats he alleges his family received are not
substantiated, and bear no nexus to a protected ground. Thus, the agency
reasonably found that Petitioner did not experience harm rising to the level of
persecution on account of a protected ground.
Third, the evidence does not compel the conclusion that he has a reasonable
fear of future persecution either. Petitioner explained that he fears the “very high
crime rates” in El Salvador and Guatemala, and that he could be targeted because
he is a returnee from the United States who could be perceived as wealthy. But
the proposed social group of “returnees” lacks particularity, see Ramirez-Munoz
v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016), and has been repeatedly rejected
by the Ninth Circuit in similar contexts. See Delgado-Ortiz v. Holder, 600 F.3d
1148, 1149–50 (9th Cir. 2010). Moreover, a generalized fear of crime and gang
violence “bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d
1007, 1016 (9th Cir. 2010). Although there is evidence of gang violence and
organized crime in both El Salvador and Guatemala, the record does not compel
the conclusion that Petitioner would be specifically targeted on account of a
protected ground. In short, substantial evidence supports the agency’s finding.
Finally, and for similar reasons, the agency did not err in denying CAT
relief. Petitioner has not shown past persecution, and “[t]he lack of past
persecution, a lesser harm than torture, necessarily encompasses a lack of past
torture.” Rivera Vega v. Garland, 39 F.4th 1146, 1158 (9th Cir. 2022). The
record does not compel the conclusion that “it is more likely than not” that
4 21-1432
Petitioner will be tortured in either El Salvador or Guatemala, let alone with the
acquiescence of the government. See 8 C.F.R. § 1208.16(c)(2).
Accordingly, the petition for review is DENIED.
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