NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMADO MORENO-LOPEZ, No. 17-70467
Petitioner, Agency No. A093-441-249
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2019**
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,*** District
Judge.
Amado Moreno-Lopez (“Moreno-Lopez”) petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an Immigration
*
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 William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
Judge’s (“IJ”) decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252 and we deny the petition.
Substantial evidence supports the BIA’s decision that Moreno-Lopez’s
untimely asylum application did not qualify for an exception to the one-year filing
deadline. A late filing of an asylum application is excused if an applicant
demonstrates “either the existence of changed circumstances which materially
affect the applicant's eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D); see also 8 C.F.R. §
208.4(a). Moreno-Lopez argues that threats leveled against him by an individual in
Mexico named Viviano constitute changed circumstances. But these threats are
simply a continuation of the circumstances which Moreno-Lopez alleges prompted
him to leave Mexico in the first place. Moreno-Lopez has not explained why these
threats justify the long filing delay of fifteen years.
Moreno-Lopez also challenges the determination that his 2009 and 2015
DUI convictions constitute particularly serious crimes which render him ineligible
for withholding of removal. We hold that the BIA did not err in finding that
Moreno-Lopez’s 2009 conviction is a particularly serious crime. Appellate review
of whether an offense constitutes a particularly serious crime “is limited to
ensuring that the agency relied on the ‘appropriate factors’ and ‘proper evidence’
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to reach this conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077
(9th Cir. 2015) (citation omitted) (internal alteration marks omitted). The BIA
properly analyzed Moreno-Lopez’s 2009 conviction under the framework outlined
in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982) and found that the
“substantial danger created” by Moreno-Lopez’s conduct rendered the 2009
conviction a particularly serious crime. Since the BIA correctly determined that
Moreno-Lopez has at least one particularly serious crime, we need not reach
whether his 2015 conviction also constituted a particularly serious crime.
Lastly, substantial evidence in the record supports the BIA’s decision that
Moreno-Lopez did not establish that it is more likely than not that he will be
subject to torture if removed back to Mexico. See 8 C.F.R. §§ 1208.16(c),
1208.17(a). Moreno-Lopez argues that he was harassed by Viviano because he
thwarted Viviano’s attempted rape and kidnapping of his neighbor. Moreno-Lopez
testified that Viviano once tried to hit him with a truck and that on another
occasion Viviano cornered him and began pulling his clothes. Other than those two
incidents, Moreno-Lopez has only described verbal threats directed at him.
Moreno-Lopez never testified to needing any medical treatment and he continued
to go to work, run errands, and continue his daily life while these incidents with
Viviano occurred. Moreno-Lopez’s brother, also a witness to the attempted rape
and kidnapping of their neighbor, lives in Mexico unharmed. Moreno-Lopez
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testified that his family still receives threats from Viviano concerning his return to
Mexico, but these alone do not constitute torture. Given what occurred with
Viviano in the past, these threats do not support a finding that it is more likely than
not that Moreno-Lopez will be tortured upon return to Mexico.
PETITION DENIED.
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Amado Moreno-Lopez v. William Barr
Combined Opinion