LEMUS GONZALES v. BARR (2019)

MEMORANDUM ***

After Lucas Lemus-Gonzales was placed in removal proceedings and conceded removability, an immigration judge (“IJ”) denied Lemus-Gonzales’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”) dismissed Lemus-Gonzales’s appeal. We have jurisdiction of this petition for review under 8 U.S.C. § 1252 and deny the petition.

1. The IJ did not err in concluding that Lemus-Gonzales’s asylum application was untimely. See 8 U.S.C. § 1158(a)(2)(B). The application describes a continuation of the events that prompted Lemus-Gonzales to leave Guatemala in 2002, but that is merely “[n]ew evidence confirming what [he] already knew ․ [and] does not constitute changed circumstances.” Budiono v. Lynch, 837 F.3d 1042, 1047 (9th Cir. 2016). And, Lemus-Gonzales also demonstrated no extraordinary circumstances justifying the approximately ten-year delay in filing his application. See 8 U.S.C. § 1158(a)(2)(D).

2. Substantial evidence supports the conclusion that Lemus-Gonzales failed to demonstrate a nexus between any alleged persecution by a gang and his family social group. See 8 U.S.C. § 1231(b)(3)(A). The IJ’s conclusion that family membership was irrelevant to the gang’s pecuniary and personal motivations was supported by substantial evidence. Substantial evidence supports the IJ’s conclusion that Lemus-Gonzales was the victim of “harassment by criminals motivated by theft,” which “bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010); see also Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (“[P]urely personal retribution is, of course, not persecution on account of [a protected ground].”) (quoting Grava v. INS, 205 F.3d 1177, 1181 n.3 (9th Cir. 2000)).

3. Substantial evidence supports the IJ’s conclusion that Lemus-Gonzales did not demonstrate it is more likely than not that he would be tortured if returned to Guatemala. See 8 C.F.R. § 1208.16(c)(2). Any past mistreatment did not arise to the level of torture and the threat of future robberies “does not provide a sufficient basis to conclude that any harm ․ would rise to the level of torture.” Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018).

PETITION DENIED