NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HERIBERTO RAYMUNDO, No. 11-73062 19-70680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 ...
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