Felipe Bustamante-Felix v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIPE BUSTAMANTE-FELIX,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1519
Agency No. A205-714-374
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 16, 2023**
Portland, Oregon
Before: KOH and SUNG, Circuit Judges, and EZRA,*** District Judge.
Felipe Bustamante-Felix (“Petitioner”) is a native and citizen of Mexico. He
petitions for review of an order of the Board of Immigration Appeals (“BIA”)
* 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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED
OCT 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissing his appeal from the decision of an Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and related relief under the
Convention Against Torture (“CAT”). As the parties are familiar with the facts,
we do not recount them here. We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition.
We review the agency’s legal conclusions de novo and its factual findings
for substantial evidence; factual findings are “conclusive unless any reasonable
adjudicator would be compelled to conclude the contrary.” Flores Molina v.
Garland, 37 F.4th 626, 632 (9th Cir. 2022) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Whether a petitioner’s proposed particular social group is cognizable is a question
of law we review de novo. Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir.
2021).
Substantial evidence supports the BIA’s conclusion that Bustamante-Felix
has not shown changed or extraordinary circumstances such that his untimely
asylum application should have been considered. Bustamante-Felix’s lack of
financial resources and lack of understanding of his obligations to timely file his
asylum application are not extraordinary circumstances that excuse filing his 2016
asylum application nearly ten years late. See Alquijay v. Garland, 40 F.4th 1099,
1104 (9th Cir. 2022). Additionally, the lengthy period between Bustamante-
Felix’s knowledge of cartel violence in Mexico in 2006 when he arrived in the

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United States and his later learning of family members’ violent experiences in
Mexico do not constitute changed circumstances sufficient to excuse his untimely
asylum application. See Budiono v. Lynch, 837 F.3d 1042, 1047 (9th Cir. 2016)
(holding “[n]ew evidence” that confirmed fears a petitioner already had about
violence in Indonesia did “not constitute changed circumstances”).
The BIA’s determination that Bustamante-Felix is ineligible for withholding
of removal because he failed to establish that he fears harm in Mexico on account
of a protected group is supported by substantial evidence. Bustamante-Felix’s
proposed social group—men returning to Mexico from the United States who are
perceived to be wealthy—“is too broad to qualify as a cognizable social group,” so
he cannot secure withholding of removal on that basis. See Barbosa v. Barr, 926
F.3d 1053, 1059–60 (9th Cir. 2019) (quoting Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151–52 (9th Cir. 2010) (per curiam)). Additionally, the harm Bustamante-
Felix fears based on his decision not to cooperate with the criminal organization’s
demands is not a basis for withholding of removal. Refusal to join a gang does not
establish membership in a cognizable social group, and substantial evidence
supports the BIA’s conclusion that members of the criminal organization did not
impute a political opinion to Bustamante-Felix. Barrios v. Holder, 581 F.3d 849,
854–56 (9th Cir. 2009), abrogated in part on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

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The government’s argument that Bustamante-Felix’s alleged failure to
exhaust his CAT argument deprives this court of jurisdiction is foreclosed by
Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023). Even if Bustamante-Felix had
exhausted this claim, he failed to establish CAT eligibility because he failed to
demonstrate it is more likely than not he would be tortured by or with the consent
or acquiescence of a public official in Mexico. See Silaya v. Mukasey, 524 F.3d
1066, 1073 (9th Cir. 2008). Bustamante-Felix was not tortured in the past and the
evidence of generalized violence and corruption does not compel a conclusion that
he faces a particularized risk of torture in the future. See Santos-Ponce, 987 F.3d
at 891.1
The stay of removal remains in place until the mandate issues.
PETITION DENIED.
1 Furthermore, Bustamante-Felix’s due process argument lacks merit because he
received a full opportunity to be heard and the agency provided a reasoned
explanation for its decision.

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