NOT FOR PUBLICATION FILED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