NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARNULFO DAMIAN-PASCUAL, aka No. 15-72812
Arnulfo Damian Pascual,
Agency No. 206-548-073
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2018**
Portland, Oregon
Before: GRABER and M. SMITH, Circuit Judges, and HELLERSTEIN,*** District
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).
*** The Honorable Alvin K. Hellerstein, United States District Judge for the
Southern District of New York, sitting by designation.
Arnulfo Damian-Pascual, a citizen of Mexico, petitions for review of an
order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the
decision of an immigration judge (“IJ”) denying cancellation of removal, asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
Our jurisdiction is governed by 8 U.S.C. § 1252(a)(1). We review questions
of law de novo and the agency’s factual findings for substantial evidence. Zetino
v. Holder, 622 F.3d 1007, 1011−12 (9th Cir. 2010). When the BIA conducts its
own review of the evidence and law, “our review is limited to the BIA’s decision,
except to the extent that the IJ’s opinion is expressly adopted.” Antonyan v.
Holder, 642 F.3d 1250, 1254 (9th Cir. 2011). Here, the BIA conducted its own
review of the evidence and law; our review is therefore limited to the BIA’s
decision.
1. Petitioner challenges the denial of his application for cancellation of
removal on the ground that the BIA erred by finding that he failed to meet the
eligibility requirements of 8 U.S.C. § 1229b(b). But the BIA also denied relief in
the exercise of its discretion. We lack jurisdiction over that decision, 8 U.S.C.
§ 1252(a)(2)(B)(i), which is an independent, sufficient, and alternative ground for
the BIA’s denial of relief. Accordingly, we need not address Petitioner’s challenge
to the adverse eligibility finding. There is no legal support for Petitioner’s
arguments that the BIA cannot make an alternative, independent discretionary
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decision if its motive is to insulate its conclusion from judicial review (assuming,
but not deciding, that the BIA had such a motive here) or that we must consider the
discretionary decision to be subsidiary.
2. As to the application for asylum, substantial evidence supports the BIA’s
finding that Petitioner’s 2015 application for asylum was untimely, received more
than a year after petitioner entered the United States (in 2000). See 8 U.S.C.
§ 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). “We may review the agency’s
application of the changed . . . circumstances exception to undisputed facts as it
relates to the one-year filing rule.” Vahora v. Holder, 641 F.3d 1038, 1042 (9th
Cir. 2011) (ellipsis in original) (internal quotation marks omitted). Petitioner
cannot argue that “changed circumstances” excused his delay, see Taslimi v.
Holder, 590 F.3d 981, 984 (9th Cir. 2010), as he was aware of violence and
vigilante activity in his hometown since at least 2012.
3. As to the application for withholding of removal, see 8 U.S.C.
§ 1231(b)(3)(A), Petitioner did not meaningfully challenge on appeal to the BIA
the IJ’s finding that he did not suffer from past persecution. Further, substantial
evidence supports the BIA’s finding that Petitioner’s proposed group—“male
residents of Urapicho”—does not meet the requirements for a particularized social
group to support Petitioner’s fear of future persecution. See 8 C.F.R. § 1208.13(b);
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091–93 (9th Cir. 2013) (en banc).
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4. Finally, substantial evidence supports the BIA’s denial of CAT relief. To
prevail on such a claim, Petitioner had to show that it is more likely than not that
he will be tortured if he returns to Mexico. Lopez-Cardona v. Holder, 662 F.3d
1110, 1114 (9th Cir. 2011). Petitioner did not claim that he was tortured in the
past, nor did the BIA err in finding that he failed to establish that he is likely to be
tortured in the future by, or with the acquiescence of, the Mexican government.
Petition DISMISSED in part and DENIED in part.
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