NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 18-3828 ______________ ALBERTO MARTINEZ-NIETO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (A074-181-031) Immigration Judge: John B. Carle ______________ Submitted Under Third Circuit L.A.R. 34.1(a) January 14, 2020 ______________ Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges (Filed: March 25, 2020) ______________ OPINION ∗ ______________ ∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge. Alberto Martinez-Nieto applied for withholding of removal and deferral of removal under the Convention Against Torture (“CAT”), citing a fear of persecution if he returned to Mexico. An immigration judge (“IJ”) denied the application, and the Board of Immigration Appeals (“BIA”) affirmed. Martinez-Nieto petitions for review of the BIA’s decision. For the following reasons, we will deny the petition for review. I Martinez-Nieto is a native and citizen of Mexico. Around 1990, he unlawfully entered the United States. On May 18, 1995, Martinez-Nieto pleaded guilty in California to possession of a controlled substance for sale or purchase for purposes of sale. In 1995, he was charged with removal and deported. After Martinez-Nieto was deported, he unlawfully returned to the United States and was deported again. In 1996, Martinez-Nieto unlawfully reentered the United States for a third time. In 2016, the Department of Homeland Security reinstated Martinez-Nieto’s prior order of removal. This time Martinez-Nieto applied for withholding of removal and deferral of removal under the CAT, claiming a fear of persecution in Mexico on account of his membership in a particular social group. Specifically, he alleged that he was a member of three particular social groups: (1) “Mexicans who have lived in the United States,” (2) “Mexican citizens who are perceived to have wealth,” and (3) “physically disabled individuals.” A19–21. An IJ denied Martinez-Nieto’s application on several independent grounds. First, the IJ determined that Martinez-Nieto was ineligible for withholding of removal because 2 he did not rebut the presumption that his drug conviction was a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B). Second, the IJ determined that Martinez-Nieto did not show that he belonged to a cognizable particular social group. Finally, the IJ found that Martinez-Nieto did not establish under the CAT that it was more likely than not that he would be tortured if he were removed to Mexico. The Board “adopt[ed] and affirm[ed] the [IJ’s] thorough and well-reasoned decision.” A5. On the last day of his deadline to appeal, Martinez-Nieto sent a messenger to deliver his petition for review to this Court. The petition was addressed to “Clerk, James A. Byrne United States Courthouse,” but the messenger delivered it to the clerk for the United States District Court for the Eastern District of Pennsylvania. Thus, the parties dispute the petition’s timeliness. II Our jurisdiction under 8 U.S.C. § 1252(b)(1) is disputed. We review legal questions—such as whether subject matter jurisdiction exists—de novo. See ...
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