NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE HUMBERTO SOARES, No. 21-652 Agency No. Petitioner, A099-825-178 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 8, 2023 ** Seattle, Washington Before: HAWKINS, BEA, and BRESS, Circuit Judges. Petitioner Jose Soares, a native and citizen of Brazil, petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed his appeal from an order of an immigration judge (“IJ”), who denied Petitioner’s claim to asylum, withholding of removal, and protection under the Convention * 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). Against Torture.1 The parties are familiar with the facts and procedural history, so we do not repeat them here. For the reasons stated below, we deny the petition. 1. Petitioner is not entitled to asylum because his application was filed after the deadline to do so. See 8 U.S.C. § 1158(a)(2)(B). Petitioner claims two changed circumstances occurred which ought to excuse his late filing, but neither is sufficient. a. First, Petitioner claims that a Brazilian police attack on his brother and sister-in-law, subsequent threatening phone calls in Brazil beginning in January 2006, and the death of Petitioner’s other brother in 2007 led Petitioner to fear harm upon his return to Brazil. The IJ held that the attacks on Petitioner’s family were not related to Petitioner’s “whistleblowing” conduct or any other fear of persecution or torture. We have no jurisdiction to review that factual finding because Congress has stripped this court’s jurisdiction over factual determinations which support the IJ’s changed circumstances analysis. Gasparyan v. Holder, 707 F.3d 1130, 1133–34 (9th Cir. 2013). 2 Because the attacks were not on Petitioner and because the IJ held that they do not represent 1 Petitioner also applied for voluntary departure, but that claim was abandoned before the BIA. 2 Petitioner argues that the BIA made impermissible factual findings on appeal. However, Petitioner does not indicate any facts used in the BIA’s decision which did not appear in the IJ’s decision. Instead, Petitioner’s argument appears to be that the BIA utilized the factual findings of the IJ to support different legal conclusions. That is not impermissible factfinding. Cf. Brezilien v. Holder, 569 F.3d 403, 413 (9th Cir. 2009). 2 a risk of harm to Petitioner, they are not material to Petitioner’s eligibility for asylum and therefore cannot excuse Petitioner’s late filing. See 8 U.S.C. § 1158 (a)(2)(D). b. Second, Petitioner claims that he became aware in 2006 that the Brazilian government was actively seeking him out. The Brazilian government’s interest in arresting Petitioner is not a sufficient changed circumstance. The IJ found that there “is sufficient probable cause that …
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