NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 28 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BENJAMIN MARTINEZ-RODRIGUEZ, No. 18-72321 Petitioner, Agency No. A097-367-810 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 15, 2020** San Francisco, California Before: McKEOWN and NGUYEN, Circuit Judges, and VITALIANO,*** District Judge. Benjamin Martinez-Rodriguez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the * 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 Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal. The parties are familiar with the facts, so we do not repeat them here. We have jurisdiction under 8 U.S.C. § 1252 over the changed circumstances and withholding of removal-related claims, and we deny the petition as to those claims. We dismiss the extraordinary circumstances claim for lack of jurisdiction. Where, as here, the BIA issues its own decision but relies in part on the IJ’s reasoning, we review the BIA’s decision and the IJ’s decision to the extent adopted. See Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012) (citing Alaelua v. INS, 45 F.3d 1379, 1382–83 (9th Cir. 1995)). We review factual findings that an applicant has not established eligibility for asylum and withholding of removal under the substantial evidence standard. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016). The BIA’s determination that untimely filing of an asylum application was not excused by changed circumstances is reviewed to determine whether the record compels a conclusion contrary to the BIA’s decision. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007). Substantial evidence supports the BIA’s conclusion that Martinez- Rodriguez’s asylum application was time-barred because he did not file his asylum application within one year of his arrival in the United States, and that he did not establish the existence of material changed circumstances to excuse the untimeliness of his application. See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(2)(D); 2 8 C.F.R. § 1208.4(a)(4). Martinez-Rodriguez does not dispute that he last entered the United States in 2009 and lodged his asylum application in 2014. Rather, he first contends that his same-sex marriage constitutes a changed circumstance that excuses his delay. Martinez-Rodriguez argues that his marriage constitutes a changed circumstance because it makes his sexual orientation more “obvious” and therefore heightens his risk of persecution. An increase in the risk of persecution can constitute a material changed circumstance excusing an untimely asylum application. See Vahora v. Holder, 641 F.3d 1038, 1044 (9th Cir. 2011). However, this record does not compel the conclusion that ...
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