Nelvin Lopez-Carrilo v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2018
• Docket: 15-73883
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NELVIN LOPEZ-CARRILO, AKA Nos. 15-73883 Jonathan Alva-Lopez, AKA Melvin 16-72390 Carrillo-Lopez, Agency No. A200-974-477 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petitions for Review of Orders of the Board of Immigration Appeals

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

In these consolidated petitions for review, Nelvin Lopez-Carrilo, a native

and citizen of Guatemala, petitions pro se for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s

* 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). decision denying asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”) and order denying his motion to reopen

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008),

except to the extent that deference is owed to the BIA’s determination of the

governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th

Cir. 2004). We review for substantial evidence the agency’s factual findings.

Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review for abuse

of discretion the denial of a motion to reopen. Bonilla v. Lynch, 840 F.3d 575, 581

(9th Cir. 2016). We deny the petition for review in 15-73883, and deny in part and

dismiss in part the petition for review in 16-73490.

Substantial evidence supports the agency’s denial of asylum as time-barred,

where the record reflects Lopez-Carrilo filed his application more than one year

after his most recent entry into the United States and where he did not demonstrate

he met an exception to the time-bar. See 8 U.S.C. § 1158(a)(2)(B), (D) (asylum

application must be filed within one year of arrival in the United States, unless the

alien can demonstrate changed circumstances affecting eligibility or extraordinary

circumstances relating to the filing delay); Antonio-Martinez v. INS, 317 F.3d

1089, 1093 (9th Cir. 2003) (“As a general rule, ignorance of the law is no

excuse.”).

2 15-73883/16-72390 The BIA did not err in finding that Lopez-Carrilo did not establish

membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131

(9th Cir. 2016) (in order to demonstrate membership in a particular group, “[t]he

applicant must ‘establish that the group is (1) composed of members who share a

common immutable characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N.

Dec. 227, 237 (BIA 2014))); see also Ramirez-Munoz v. Lynch, 816 F.3d 1226,

1228-29 (9th Cir. 2016) (concluding that “imputed wealthy Americans” returning

to Mexico does not constitute a particular social group). The record does not

support Lopez-Carrilo’s contention that the agency did not conduct the proper

analysis regarding societal perception in Guatemala of his proposed social group.

Thus, we deny the petition for review as to withholding of removal.

Substantial evidence supports the agency’s denial of CAT protection, where

Lopez-Carrilo’s testimony did not establish he would be tortured by or with the

acquiescence of the Guatemalan government. See Garcia-Milian v. Holder, 755

F.3d 1026, 1033 (9th Cir. 2014).

Lopez-Carrilo moved to reopen so that he could pursue an I-601A

provisional waiver of inadmissibility pursuant to 8 C.F.R. § 212.7(e). At that time,

an individual who had been in removal proceedings was eligible for the waiver

only if the agency had administratively closed proceedings, instead of entering a

3 15-73883/16-72390 removal order. See 8 C.F.R. § 212.7(e)(4) (2013). However, an update to the

regulations, effective August 29, 2016, allows individuals with a final order of

removal to pursue an I-601A provisional waiver with consent to reapply for

admission under INA § 212(a)(9)(A)(iii) and 8 C.F.R. § 212.2(j). Accordingly, we

deny the petition in 16-72390 as moot.

We lack jurisdiction to review Lopez-Carrilo’s contention that his

proceedings should be reopened so that he can seek prosecutorial discretion. See

Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).

IN No. 15-73883, PETITION FOR REVIEW DENIED.

IN No. 16-72390, PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

4 15-73883/16-72390