NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE LUIS GARCIA-CERVANTES, AKA No. 17-71203 Jose Luis Cervantes, AKA Jose Luis Garcia, Agency No. A079-144-095 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 4, 2020** Honolulu, Hawaii Before: FARRIS, McKEOWN, and BADE, Circuit Judges. Jose Luis Garcia-Cervantes (“Garcia-Cervantes”) petitions for review of the Board of Immigration Appeals (“BIA”) order dismissing his appeal from an Immigration Judge’s (“IJ”) decision denying his requests for asylum, withholding of removal, cancellation of removal, and protection under the Convention Against * 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). Torture (“CAT”). We review the agency’s factual findings for substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review. 1. An applicant must apply for asylum within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). A late application may be considered if the asylum applicant establishes “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.” Id. at § 1158(a)(2)(D). We have jurisdiction to review the agency’s timeliness determination because the ruling was based on undisputed facts. See Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir. 2007). Garcia-Cervantes entered the United States in 2002 but did not seek asylum until 2014. Garcia-Cervantes’s asylum claim rests on his fear that, if he returned to Mexico, he would be killed by members of a family who, since 1977, have intimidated and murdered several of his relatives to take possession of Garcia- Cervantes’s family’s ranch. Members of that family shot Garcia-Cervantes in 1998. Garcia-Cervantes contends that his circumstances changed in 2015 when one of his brothers who lives near the family’s ranch was shot. We do not make a changed circumstances determination. Substantial evidence supports the BIA’s determination that Garcia-Cervantes’s delay in applying for asylum was not 2 reasonable because that incident was not a changed circumstance. Garcia- Cervantes’s and his sister’s testimony about the motive and person responsible for shooting their brother was speculative. Garcia-Cervantes also asserts that extraordinary circumstances excuse his untimely application because, during a prior removal proceeding, he was misled about the need to apply for asylum. Garcia-Cervantes did not present this claim to the BIA and therefore it is waived. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We therefore affirm the denial of Garcia- Cervantes’s asylum application as untimely. 2. Substantial evidence supports the agency’s determination that Garcia- Cervantes failed to establish that the harm he experienced or fear ...
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