Avelar Ramos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 3, 2023
• Docket: 21-1432
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.”

2 21-1432 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.

5 21-1432