NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 22-3007 _____________
SEOL LOPEZ-ROJAS, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ______________
On Petition for Review of a Final Order of the Board of Immigration Appeals No. A216-220-878 Immigration Judge: Annie S. Garcy ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on July 11, 2023
Before: PHIPPS, MONTGOMERY-REEVES, and McKEE, Circuit Judges
(Opinion filed: July 31, 2024) _____________________
OPINION ______________________
McKEE, Circuit Judge:
Soel Lopez-Rojas, a citizen of Guatemala, seeks review of the Board of
Immigration Appeals’ (“BIA”) denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). An Immigration
Judge (“IJ”) denied asylum because Lopez-Rojas’s petition was untimely, and he did not
establish grounds for an exception to the filing deadline. The IJ also found that Lopez-
Rojas had not met his burden of proof for withholding of removal and protection under
the CAT. The BIA affirmed the IJ’s conclusions. For the reasons that follow, we will
deny the petition for review.1
I.
In reviewing removal orders, we review factual determinations for substantial
evidence and legal determinations de novo.2 Factual findings may not be set aside “unless
any reasonable adjudicator would be compelled to conclude to the contrary.”3 We
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 We have jurisdiction over Lopez-Rojas’ timely petition for review of a final order of removal under 8 U.S.C. § 1252(a)(1) and (b)(2). 2 Kang v. Att’y Gen., 611 F.3d 157, 163–64 (3d Cir. 2010). 3 8 U.S.C. § 1252(b)(4)(B).
2 primarily review the BIA’s opinion, but we also review the IJ’s opinion “to the extent it
is adopted, affirmed, or substantially relied upon by the BIA.”4
A.
An asylum application must be filed within one year after the applicant arrives in
the United States.5 However, late-filed applications may still be considered if the
applicant can demonstrate “changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relat[ed] to the delay.”6
We lack jurisdiction to review any factual or discretionary determinations the Attorney
General makes in the course of applying the time bar, but we may review the Attorney
General’s application of legal standards to those facts.7
Lopez-Rojas argues that the BIA erred as a matter of law by concluding that his
assailant’s continued threats did not constitute changed circumstances that would toll the
time bar. We see no error.
The IJ and BIA determined that the assailant’s continued threats against Lopez-
Rojas were indistinguishable from the assailant’s initial threats that had formed the basis
for Lopez-Rojas’s asylum claim. We lack jurisdiction to review this factual
determination.8 Because the continued threats were indistinguishable from the initial
4 Guzman Orellana v. Att’y Gen., 956 F.3d 171, 177 (3d Cir. 2020). 5 8 U.S.C. § 1158(a)(2)(B). 6 8 U.S.C. § 1158(a)(2)(D). 7 Sukwanputra v. Gonzales, 434 F.3d 627, 633–34 (3d Cir. 2006); see also Wilkinson v. Garland, 144 S. Ct. 780, 792 (2024) (reiterating that “[m]ixed questions of law and fact, even when they are primarily factual, fall within the statutory definition of ‘questions of law’ in § 1252(a)(2)(D) and are therefore reviewable”). 8 Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir. 2006).
3 threats, they cannot constitute changed circumstances. See 8 U.S.C. § 1158(a)(2)(D);
8 C.F.R. § 208.4(a)(4). Thus, there is no legal error in the BIA’s determination that these
continued threats do not constitute changed circumstances.
B.
To be entitled to withholding of removal, Lopez-Rojas must prove that it is more
likely than not that his “life or freedom would be threatened” in Guatemala because of his
“race, religion, nationality, membership in a particular social group, or political
opinion.”9 To establish that a particular social group is cognizable, Lopez-Rojas must
show that it is “(1) composed of members who share a common, immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the society in
question.”10
Lopez-Rojas’s argues that he is entitled to withholding of removal because he
belongs to the particular social group of “Guatemalans who file police complaints against
criminals.”11 Proving that a group is socially distinct requires “proof of societal views,”12
specifically, “evidence that the society in question recognizes a proposed group as
distinct.”13 Here, there is simply no evidence that Guatemalan society perceives those
who file police complaints against criminals as socially distinct. Accordingly, the BIA
and IJ were correct to deny Lopez-Rojas’s application for withholding of removal.
9 8 U.S.C. § 1231(b)(3)(A); see Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011). 10 Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019). 11 A.R. 4. 12 S.E.R.L. v. Att’y Gen., 894 F.3d 535, 556 (3d Cir. 2018). 13 Radiowala, 930 F.3d at 583.
4 C.
To succeed on his CAT claim, Lopez-Rojas must establish that it is “more likely
than not that [he] would be tortured if removed to [Guatemala].”14 In Myrie v. Attorney
General, we held that the determination of whether an applicant has met this burden is
subject to a two-pronged analysis.15 The first prong requires that the IJ answer two
questions: “(1) what is likely to happen to the petitioner if removed; and (2) does what is
likely to happen amount to the legal definition of torture?”16 Inquiry under the second
prong requires that the IJ assess “whether an applicant has established that public
officials will acquiesce to the feared tortu[r]ous acts of a non-state actor.”17 This in turn
requires a second two-part inquiry. The IJ must determine: (1) how public officials would
likely react to the harms the petitioner fears; and (2) whether this response qualifies as
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 22-3007 _____________
SEOL LOPEZ-ROJAS, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ______________
On Petition for Review of a Final Order of the Board of Immigration Appeals No. A216-220-878 Immigration Judge: Annie S. Garcy ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on July 11, 2023
Before: PHIPPS, MONTGOMERY-REEVES, and McKEE, Circuit Judges
(Opinion filed: July 31, 2024) _____________________
OPINION ______________________
McKEE, Circuit Judge:
Soel Lopez-Rojas, a citizen of Guatemala, seeks review of the Board of
Immigration Appeals’ (“BIA”) denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). An Immigration
Judge (“IJ”) denied asylum because Lopez-Rojas’s petition was untimely, and he did not
establish grounds for an exception to the filing deadline. The IJ also found that Lopez-
Rojas had not met his burden of proof for withholding of removal and protection under
the CAT. The BIA affirmed the IJ’s conclusions. For the reasons that follow, we will
deny the petition for review.1
I.
In reviewing removal orders, we review factual determinations for substantial
evidence and legal determinations de novo.2 Factual findings may not be set aside “unless
any reasonable adjudicator would be compelled to conclude to the contrary.”3 We
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 We have jurisdiction over Lopez-Rojas’ timely petition for review of a final order of removal under 8 U.S.C. § 1252(a)(1) and (b)(2). 2 Kang v. Att’y Gen., 611 F.3d 157, 163–64 (3d Cir. 2010). 3 8 U.S.C. § 1252(b)(4)(B).
2 primarily review the BIA’s opinion, but we also review the IJ’s opinion “to the extent it
is adopted, affirmed, or substantially relied upon by the BIA.”4
A.
An asylum application must be filed within one year after the applicant arrives in
the United States.5 However, late-filed applications may still be considered if the
applicant can demonstrate “changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relat[ed] to the delay.”6
We lack jurisdiction to review any factual or discretionary determinations the Attorney
General makes in the course of applying the time bar, but we may review the Attorney
General’s application of legal standards to those facts.7
Lopez-Rojas argues that the BIA erred as a matter of law by concluding that his
assailant’s continued threats did not constitute changed circumstances that would toll the
time bar. We see no error.
The IJ and BIA determined that the assailant’s continued threats against Lopez-
Rojas were indistinguishable from the assailant’s initial threats that had formed the basis
for Lopez-Rojas’s asylum claim. We lack jurisdiction to review this factual
determination.8 Because the continued threats were indistinguishable from the initial
4 Guzman Orellana v. Att’y Gen., 956 F.3d 171, 177 (3d Cir. 2020). 5 8 U.S.C. § 1158(a)(2)(B). 6 8 U.S.C. § 1158(a)(2)(D). 7 Sukwanputra v. Gonzales, 434 F.3d 627, 633–34 (3d Cir. 2006); see also Wilkinson v. Garland, 144 S. Ct. 780, 792 (2024) (reiterating that “[m]ixed questions of law and fact, even when they are primarily factual, fall within the statutory definition of ‘questions of law’ in § 1252(a)(2)(D) and are therefore reviewable”). 8 Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir. 2006).
3 threats, they cannot constitute changed circumstances. See 8 U.S.C. § 1158(a)(2)(D);
8 C.F.R. § 208.4(a)(4). Thus, there is no legal error in the BIA’s determination that these
continued threats do not constitute changed circumstances.
B.
To be entitled to withholding of removal, Lopez-Rojas must prove that it is more
likely than not that his “life or freedom would be threatened” in Guatemala because of his
“race, religion, nationality, membership in a particular social group, or political
opinion.”9 To establish that a particular social group is cognizable, Lopez-Rojas must
show that it is “(1) composed of members who share a common, immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the society in
question.”10
Lopez-Rojas’s argues that he is entitled to withholding of removal because he
belongs to the particular social group of “Guatemalans who file police complaints against
criminals.”11 Proving that a group is socially distinct requires “proof of societal views,”12
specifically, “evidence that the society in question recognizes a proposed group as
distinct.”13 Here, there is simply no evidence that Guatemalan society perceives those
who file police complaints against criminals as socially distinct. Accordingly, the BIA
and IJ were correct to deny Lopez-Rojas’s application for withholding of removal.
9 8 U.S.C. § 1231(b)(3)(A); see Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011). 10 Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019). 11 A.R. 4. 12 S.E.R.L. v. Att’y Gen., 894 F.3d 535, 556 (3d Cir. 2018). 13 Radiowala, 930 F.3d at 583.
4 C.
To succeed on his CAT claim, Lopez-Rojas must establish that it is “more likely
than not that [he] would be tortured if removed to [Guatemala].”14 In Myrie v. Attorney
General, we held that the determination of whether an applicant has met this burden is
subject to a two-pronged analysis.15 The first prong requires that the IJ answer two
questions: “(1) what is likely to happen to the petitioner if removed; and (2) does what is
likely to happen amount to the legal definition of torture?”16 Inquiry under the second
prong requires that the IJ assess “whether an applicant has established that public
officials will acquiesce to the feared tortu[r]ous acts of a non-state actor.”17 This in turn
requires a second two-part inquiry. The IJ must determine: (1) how public officials would
likely react to the harms the petitioner fears; and (2) whether this response qualifies as
acquiescence under the governing regulations.18
Lopez-Rojas argues that the IJ and BIA failed to conduct the Myrie analysis
properly. But we disagree. After reviewing the evidence, the IJ concluded that Lopez-
Rojas’s assailant had not attempted to harm Lopez-Rojas or his family members in the
seven years since the initial assaultive incident that Lopez-Rojas reported to the police.
Because the assailant had opportunities to harm Lopez-Rojas and his family members
throughout these seven years but did not do so, the IJ determined that Lopez-Rojas had
14 8 C.F.R. § 1208.16(c)(2). 15 855 F.3d 509, 516 (3d Cir. 2017). 16 Id. 17 Id. 18 Id.
5 not proven it was more likely than not that his assailant would carry out any of his threats
if Lopez-Rojas were returned to Guatemala. The BIA found no clear error in the IJ’s
factual determination. Having found that Lopez-Rojas’s CAT claim failed at the first
factual step, neither the IJ nor the BIA was obliged to complete the remaining steps in the
Myrie framework. Accordingly, we find that the IJ and BIA fulfilled all their obligations
under Myrie.
II.
While we are sympathetic to the crime-related dangers faced by many
Guatemalans like Lopez-Rojas, the law does not allow us to conclude that the BIA erred
in affirming the denial of his applications for asylum, withholding of removal, or
protection under CAT. Accordingly, we must deny his petition for review.