Benjamin Campos Escobar v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BENJAMIN DE JESUS CAMPOS No. 18-72932 ESCOBAR, AKA Rene Campos, Agency No. A094-320-518 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 15, 2023** San Francisco, California

Before: FRIEDLAND, BADE, and KOH, Circuit Judges.

Benjamin De Jesus Campos Escobar (“Campos”), a native and citizen of El

Salvador, petitions pro se for review of an order of the Board of Immigration

Appeals (“BIA”) dismissing his appeal from a decision of the Immigration Judge

* 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). (“IJ”) denying his applications for asylum, humanitarian asylum, and withholding

of removal.1 We have jurisdiction under 8 U.S.C. § 1252. We deny the petition

for review.

1. The absence of time and date information in Campos’s notice to

appear did not divest the immigration court of jurisdiction. See United States v.

Bastide-Hernandez, 39 F.4th 1187, 1188, 1193 (9th Cir. 2022) (en banc) (holding

that the absence of time and date information in a notice to appear does not deprive

the immigration court of jurisdiction, and the filing of a subsequent notice that

provides such information complies with 8 C.F.R. § 1003.14(a)). Because Campos

received a subsequent notice of hearing, the immigration court had jurisdiction

over his case.

2. The BIA did not err in concluding that Campos is ineligible for

asylum because his application was untimely. See 8 U.S.C. § 1158(a)(2)(B), (D)

(absent changed or extraordinary circumstances, an application for asylum must be

filed within one year of arrival in the United States). Campos argues that his

Temporary Protected Status from 2001 until 2008 is an “extraordinary

circumstance[]” justifying his untimely application. See 8 C.F.R.

1 Campos does not challenge the agency’s denial of CAT protection or cancellation of removal. Therefore, even construing his claims liberally, see Gonzalez-Castillo v. Garland, 47 F.4th 971, 980 (9th Cir. 2022), he has forfeited those claims, Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018).

2 § 1208.4(a)(5)(iv) (maintaining Temporary Protected Status may be an

extraordinary circumstance, but the applicant must file the application “within a

reasonable period given those circumstances”). But Campos’s status from 2001 to

2008 does not explain his failure to file his asylum application before he applied

for and received Temporary Protected Status. The BIA noted that Campos, who

entered the United States in 1993, did not file his asylum application until 2000,

twenty-four months after the one-year rule’s effective date of April 1998, and

before he applied for Temporary Protected Status.2 Substantial evidence supports

the BIA’s conclusion that given this delay, Campos did not file his application

within “a reasonable time.” See Husyev v. Mukasey, 528 F.3d 1172, 1181–82 (9th

Cir. 2008) (holding that “[i]n the absence of any special considerations,” a delay of

six months is presumptively unreasonable and concluding applicant’s 364-day

delay, without explanation, was unreasonable); Dhital v. Mukasey, 532 F.3d 1044,

1050 (9th Cir. 2008) (per curiam) (petitioner failed to file application within a

“reasonable period” when he waited twenty-two months without explanation for

the delay).

2 The BIA stated that Campos did not file his asylum application until 2000, apparently based on a representation in Campos’s brief, but Campos did not submit his application until 2009. This error, which, if anything, benefitted Campos, does not require remand. See Gutierrez-Zavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022) (concluding that remand was not necessary when it would be “an idle and useless formality” (citation omitted)).

3 3. Substantial evidence also supports the agency’s denial of Campos’s

application for withholding of removal. To establish entitlement to withholding of

removal, the applicant must show past persecution or make “an independent

showing of clear probability of future persecution” on account of his race, religion,

nationality, membership in a particular social group, or political opinion. See

Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). Demonstrating past

persecution gives rise to a presumption of future persecution, Sharma v. Garland, 9

F.4th 1052, 1060 (9th Cir. 2021), which the government may rebut by showing that

there has been a “fundamental change in circumstances such that the applicant no

longer has a well-founded fear of persecution,” 8 C.F.R. § 1208.13(b)(1)(i)(A).

The BIA concluded that country conditions in El Salvador had changed so

substantially that any presumption of a well-founded fear of persecution had been

rebutted. This conclusion is supported by substantial evidence. See Sowe v.

Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (reviewing agency’s factual

findings regarding changed country conditions for substantial evidence).

Campos’s claim is premised upon his fear of being persecuted because members of

his family served in the Salvadoran military and suffered harm at the hands of the

Farabundo Martí National Liberation Front (“FMLN”) during the Salvadoran Civil

War. But the BIA noted that Campos’s mother has continued to reside in El

Salvador and has not experienced any harm. Lim v. INS, 224 F.3d 929, 935 (9th

4 Cir. 2000) (“This court has allowed ongoing family safety to mitigate a well-

founded fear, particularly where the family is similarly situated to the applicant and

thus presumably subject to similar risk.”). Campos testified that he fears the same

FMLN “guerrillas” who harmed his father decades ago,3 but the agency found that

the Peace Accords had since been signed, country reports no longer mentioned the

Civil War, and no one in Campos’s family had been harmed or threatened since

1999, despite his mother’s continued residence in El Salvador. Substantial

evidence supports the agency’s determination that any presumption of persecution

was rebutted.

4. Campos argues that the IJ erred by failing to consider his eligibility

for humanitarian asylum. Even assuming there was error, it was harmless because

the BIA considered Campos’s eligibility. See Brezilien v. Holder, 569 F.3d 403,

411 (9th Cir. 2009).

PETITION DENIED.

3 Campos asserted that the guerrillas still exist, now as gangs.