Moreno Ovalle v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2024
• Docket: 22-241
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CONRADO EDUARDO MORENO No. 22-241 OVALLE, Agency No. A213-016-234 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 11, 2024** Pasadena, California

Before: MURGUIA, Chief Judge, and MENDOZA and DE ALBA, Circuit Judges.

Conrado Eduardo Moreno Ovalle, a citizen of Guatemala, 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

* 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). removal, and relief under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252(a)(1), and we affirm. “Our review is limited to

the BIA’s decision except where the IJ’s opinion is expressly adopted.” Plancarte

Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). We review the agency’s

factual findings for substantial evidence, and we review questions of law de novo.

Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021).

1. Asylum. The BIA concluded that Moreno Ovalle was ineligible for

asylum because he did not timely file his application. A person seeking asylum

must file their application within one year of the date they arrived in the United

States unless they can demonstrate that an exception applies. 8 U.S.C.

§ 1158(a)(2)(B), (D). Moreno Ovalle arrived in the U.S. in 2004 but did not apply

for asylum until 2018 because he did not realize he could apply earlier. Moreno

Ovalle does not argue that an exception applies that would permit his untimely

application, but rather asserts that the one-year statutory deadline violates his Fifth

Amendment due process rights.

Moreno Ovalle does not sufficiently develop or support his argument.

Generally, “ignorance of the law is no excuse.” Alquijay v. Garland, 40 F.4th

1099, 1103 (9th Cir. 2022) (quoting Antonio-Martinez v. INS, 317 F.3d 1089, 1093

(9th Cir. 2003)). It is not clear whether Moreno Ovalle argues that the filing

deadline violates substantive or procedural due process (or both), nor does he

2 22-241 explain how the filing deadline violates those rights. He argues that the filing

deadline is arbitrary and capricious because noncitizens may not know about it, but

he does not cite authority that supports this argument. The BIA therefore did not

err in concluding that Moreno Ovalle’s asylum application was untimely.

2. Withholding. Withholding requires that a petitioner prove a causal

nexus between a statutorily protected characteristic and either past harm or an

objectively reasonable fear of future harm. Rodriguez-Zuniga v. Garland, 69 F.4th

1012, 1016 (9th Cir. 2023). The statutorily protected grounds include “race,

religion, nationality, membership in a particular social group, [and] political

opinion.” Id. (citing 8 U.S.C. § 1231(b)(3)(A)). Moreno Ovalle argues that he was

persecuted in Guatemala when he was robbed in 2001 and 2002, and he asserts that

his persecution was on account of his membership in a particular social group

(PSG) of people in Guatemala who are not in criminal gangs. Given that Moreno

Ovalle conceded he was targeted because he was working as a debt collector and

the robbers thought he had money, substantial evidence supports the BIA’s

conclusion that he was not targeted on account of membership in his asserted PSG.

3. CAT Relief. To qualify for CAT relief, an applicant “must establish that

‘it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.’” Garcia-Milian v. Holder, 755 F.3d 1026, 1033

(9th Cir. 2014) (quoting 8 C.F.R. § 208.16(c)(2)). Furthermore, the torture must be

3 22-241 “with the consent or acquiescence of a public official or other person acting in an

official capacity.” Id. (quoting Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir.

2003)). The BIA agreed with the IJ that Moreno Ovalle provided insufficient

evidence to demonstrate his eligibility for CAT protection. Moreno Ovalle argues

that he would be targeted if returned to Guatemala because people would assume

that he has money after living in the U.S. But he does not point to any evidence in

the record that he faces a “particularized threat” of torture, Dhital v. Mukasey, 532

F.3d 1044, 1051 (9th Cir. 2008) (quoting Lanza v. Ashcroft, 389 F.3d 917, 936 (9th

Cir. 2004)), let alone torture with the acquiescence of the government. Substantial

evidence therefore supports the BIA’s conclusion that Moreno Ovalle was

ineligible for CAT protection.

PETITION DENIED.

4 22-241