NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERIBERTO RAYMUNDO, No. 11-73062
19-70680
Petitioner,
Agency No. A095-001-318
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 5, 2020**
Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.
Heriberto Raymundo, a native and citizen of El Salvador, seeks review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”), as well as
*
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 BIA’s order denying his motion to reopen. Raymundo claims that gang members
have threatened and harmed his relatives and that he will face similar persecution if
removed. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petitions.
Substantial evidence supports the agency’s determination1 that Raymundo
failed to file his asylum application “within a reasonable period” of either his
“extraordinary circumstance” of losing Temporary Protected Status (“TPS”) or his
“changed circumstance” of learning that gangs in El Salvador had threatened and
harmed some of his relatives. See 8 U.S.C. § 1158(a)(2)(D); 8
C.F.R. § 1208.4(a)(4)–(5); Al Ramahi v. Holder, 725 F.3d 1133, 1138 (9th Cir.
2013) (reviewing “reasonable period” determination for substantial evidence).2
Notwithstanding any limitation that the Notice to Appear (“NTA”) might have
placed on his ability to apply for asylum, he has not accounted for the approximately
1
The BIA expressly incorporated the IJ’s opinion as to this issue. Our review
accordingly includes the IJ’s corresponding findings. Gui v. INS, 280 F.3d 1217,
1225 (9th Cir. 2002).
2
Although 8 U.S.C. § 1158(a)(3) limits our review of decisions involving
those exceptions, the law of our circuit permits us to review the application of those
exceptions here because the underlying facts are undisputed. See Al Ramahi, 725
F.3d at 1137–38 (“[W]e may review the BIA’s application of the changed or
extraordinary circumstances exception when the historical facts are undisputed.”
(citation and footnote omitted)).
2
eight months between his TPS’s expiration and the NTA’s issuance.3 See Al Ramahi,
725 F.3d at 1135, 1138–40 (crediting delays exceeding six months as evidence of
untimeliness). Similarly, the more recent 2008 incident does not explain
Raymundo’s eight-month delay in applying for asylum because the incidents alleged
by Petitioner began as early as 2003. See id.
Substantial evidence also supports the agency’s finding that Raymundo failed
to demonstrate probable persecution attributable to a protected ground.4 See 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b); Flores-Vega v. Barr, 932 F.3d 878,
886 (9th Cir. 2019) (reviewing denial of withholding for substantial evidence).
Raymundo claims no past persecution. The record does show that gangs targeted
certain members of Raymundo’s family to extort money or expand influence. Yet
it also suggests that other family members, including his brother Francisco, have not
been targeted.5 See Santos-Lemus v. Mukasey, 542 F.3d 738, 743–44 (9th Cir. 2008)
(crediting family member’s continued safety as substantial evidence against fear of
3
Raymundo argues that the BIA erred in saying his TPS lapsed “sometime in
2007” instead of specifying a date. But the IJ had already found that Raymundo’s
TPS expired “on or about July 25, 2007,” which he does not attempt to dispute.
4
We assume but express no opinion as to Raymundo’s argument that family
membership places him in a cognizable social group.
5
Raymundo additionally testified that his brother, who had experienced
threats as a school principal in rural El Salvador, has not experienced any further
problems after relocating himself and his family to San Salvador.
3
persecution), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d
1081, 1093 (9th Cir. 2013) (en banc). And he gives us no reason to question the
agency’s finding that his opposition to gangs is not a protectable political opinion.
See id. at 744–46 (rejecting “young men in El Salvador resisting gang violence” as
cognizable group).
Similar considerations support the agency’s denial of CAT relief. While the
evidence of deficient judicial protections and rampant police corruption in El
Salvador is undeniable, we cannot disregard the lack of prior torture, the absence of
threats of future torture, the successful evasion of gang violence by some of
Raymundo’s family members, or efforts by the Salvadoran government to address,
however imperfectly, the gang violence he ultimately fears. See Cole v. Holder, 659
F.3d 762, 771 (9th Cir. 2011) (requiring government awareness of torture, plus either
willful blindness or idleness attributable to inability or unwillingness, to support
“acquiescence”).
Finally, the BIA did not abuse its discretion in denying Raymundo’s motion
to reopen, filed nearly six years after the final order of removal, as untimely. See 8
U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(a), (c); Tadevosyan v. Holder, 743 F.3d
1250, 1252–53 (9th Cir. 2014) (reviewing denial of motion to reopen for “abuse of
discretion”). The record does not suggest a material change in country conditions in
El Salvador particular to Raymundo or his family, but rather a continuation of
4
longstanding gang violence afflicting much of Salvadoran society. See 8
C.F.R. § 1003.2(c)(3)(ii); Najmabadi v. Holder, 597 F.3d 983, 988–90 (9th Cir.
2010) (finding new country condition evidence too indistinct and unparticular to be
material). And we see scant support for Raymundo’s contention that the BIA failed
to consider the evidence he submitted. See Najmabadi, 597 F.3d at 991 (stating that
the BIA need not “directly reference” all evidence presented).
PETITIONS DENIED.
5