Jose Marcelo Penado, a native and citizen of El Salvador, sought protection from removal by applying for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). An Immigration Judge denied his claims, and the Board of Immigration Appeals (BIA) dismissed his appeal. The BIA found that Penado failed to file his asylum application within one year of his arrival in the United States and that his claims did not qualify for the 'changed circumstances' exception. Furthermore, the BIA determined that the threats Penado faced were too vague to establish a likelihood of future persecution and that the gang violence he feared was motivated by financial extortion rather than a protected ground. Penado petitioned the Ninth Circuit for review of these determinations.
The panel unanimously denied the petition for review, addressing three primary legal issues. First, regarding the one-year filing deadline for asylum, the court applied the substantial evidence standard to the BIA's finding that Penado did not qualify for the 'changed circumstances' exception. The court noted that most of the alleged changed circumstances occurred between 2005 and 2015. Even if those events were material, the court held that the BIA's conclusion that Penado failed to file within a reasonable time was supported by substantial evidence, citing Al Ramahi v. Holder to recognize that a delay of six months or longer after a changed circumstance is ordinarily unreasonable. Second, concerning withholding of removal, the court affirmed that Penado failed to prove it was 'more likely than not' that he would be persecuted on account of a protected ground. The court relied on Duran-Rodriguez v. Barr, stating that cases involving threats alone, particularly anonymous or vague ones, rarely constitute persecution. Additionally, the court upheld the BIA's finding that the gang killings were motivated by a failure to pay bribes, meaning they lacked a nexus to a protected ground as established in Zetino v. Holder. Third, regarding CAT relief, the court found little evidence that Penado would be tortured if removed, noting that the country conditions report did not establish that any potential torture would be by, or at the instigation of, a public official. Finally, the court declined to address the agency's negative credibility determination because the agency had decided each claim on the merits assuming credibility, meaning a remand on credibility grounds would not be necessary.
Penado's petition for review is denied, and the BIA's order denying his claims is affirmed. Consequently, Penado remains subject to removal from the United States. The court explicitly lifted the temporary stay of removal that had been in place, effective immediately. The decision reinforces the strict timeline requirements for asylum applications and the high evidentiary bar for proving future persecution based on vague threats or non-protected gang violence.
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