Antonio-Gonzalez v. Garland

Opinion

21-6401 Antonio-Gonzalez v. Garland BIA Ruehle, IJ A206 437 338 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of September, two thousand twenty-three.

PRESENT: MICHAEL H. PARK, ALISON J. NATHAN, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

RAMOS ANTONIO-GONZALEZ, Petitioner,

v. 21-6401-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jose Perez, Esq., Syracuse, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Bernard A. Joseph, Senior Litigation Counsel; Enitan O. Otunla, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is DISMISSED in part and DENIED in part.

Petitioner Ramos Antonio-Gonzalez, a native and citizen of Guatemala, seeks review

of a June 17, 2021, decision of the BIA affirming an October 25, 2018, decision of an

Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). In re Ramos Antonio-Gonzalez, No.

A206 437 338 (B.I.A. June 17, 2021), aff’g No. A206 437 338 (Immigr. Ct. Buffalo Oct. 25,

2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified and supplemented by the BIA. See

Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We lack jurisdiction to review Antonio-

Gonzalez’s challenge to the denial of his asylum claim as untimely, and we find that Antonio-

Gonzalez has abandoned any challenge to the agency’s adverse credibility determination,

which was dispositive of withholding of removal and CAT relief.

I. Asylum

An applicant is eligible for asylum only if he “demonstrates by clear and convincing

evidence that the application has been filed within 1 year after the date of [his] arrival in the

United States.” 8 U.S.C. §1158(a)(2)(B). An untimely application may be considered “if

the alien demonstrates . . . changed circumstances which materially affect the applicant’s

eligibility for asylum,” 8 U.S.C. §1158(a)(2)(D), and the application is filed “within a

2 reasonable period given those ‘changed circumstances.’” 8 C.F.R. §1208.4(a)(4)(ii).

Changed circumstances include, but are not limited to, “[c]hanges in conditions in the

applicant’s country of nationality” and “[c]hanges in the applicant’s circumstances that

materially affect the applicant’s eligibility for asylum.” 8 C.F.R. §§1208.4(a)(4)(i)(A)-(B).

Our jurisdiction to review the agency’s findings regarding the timeliness of an asylum

application and the circumstances excusing untimeliness is limited to “constitutional claims

or questions of law.” 8 U.S.C. §1252(a)(2)(D); see also 8 U.S.C. §1158(a)(3); Barco-

Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008) (requiring “colorable” constitutional

claim or question of law). Antonio-Gonzalez contends that “the BIA and the IJ erred in not

considering” changed circumstances that would excuse his late filing. Pet’s Br. at 14. The

record reflects that the IJ did consider the evidence offered that Antonio-Gonzalez’s father

had been beaten, but he offered no evidence that the beating was related to his status as a

worker in the United States. Furthermore, when asked directly by the IJ why he waited more

than a decade to file his application, Antonio-Gonzalez did not assert that the trigger for filing

the application was his father’s beating; rather, he stated that he filed the application after he

was arrested and detained by U.S. Immigration and Customs Enforcement. To the extent

Antonio-Gonzalez argues that increasing gang violence constituted a change in circumstances

excusing the untimely filing, this is a factual issue not subject to our review. See 8 U.S.C.

§§1158(a)(3), 1252(a)(2)(D); see also Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 329

(2d Cir. 2006). Further, the IJ considered and did not ignore Antonio-Gonzalez’s claim, in

his asylum application, that he only learned a few months before filing his application that

3 gang members target those with connections to the United States.

Accordingly, the record belies Antonio-Gonzalez’s argument that the agency ignored

evidence of changed circumstances. Therefore, we dismiss the petition as to asylum because

we lack jurisdiction to further review the agency’s timeliness determination. See 8 U.S.C.

§1158(a)(3); Barco-Sandoval, 516 F.3d at 40-41.

II. Withholding of Removal and CAT Relief

Antonio-Gonzalez has waived any challenge to the agency’s determination that he was

not credible by not addressing the adverse credibility determination in his brief; accordingly,

we do not reach it. * See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005)

(stating that petitioner abandons any claims not discussed in his brief). We deny the petition

in remaining part because the adverse credibility determination was dispositive of

withholding of removal and CAT relief.

For the foregoing reasons, the petition for review is DISMISSED in part and DENIED

in part. All pending motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

* We note that the agency relied on inconsistencies in the record regarding whether and why Antonio-Gonzalez’s father was attacked in Guatemala. See 8 U.S.C. §1158(b)(1)(B)(iii) (credibility standard); see also Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from showing that an IJ was compelled to find him credible. Multiple inconsistencies would so preclude even more forcefully.”). 4