Soel Lopez-Rojas v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: July 31, 2024
• Docket: 22-3007
• Status: Unpublished

Opinion

NOT PRECEDENTIAL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.