Nelson Rodriguez-Olivera v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON RODRIGUEZ-OLIVERA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72037
Agency No. A200-149-614
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2022**
Seattle, Washington
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
Nelson Rodriguez-Olivera, a native and citizen of Honduras, petitions for
review of an order of the Board of Immigration Appeals affirming an immigration
judge’s denial of his applications for asylum, withholding of removal, and
* 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).
FILED
DEC 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
We review the agency’s findings of fact for substantial evidence, and we
review questions of law de novo. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748
(9th Cir. 2022).
1. The agency had jurisdiction over these proceedings even though the initial
notice to appear lacked time and place information for the first removal hearing.
See Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).
2. Rodriguez-Olivera’s asylum claim is time-barred because he waited six
years to file the claim and did not show how a material change in circumstances or
an extraordinary circumstance caused the delay in filing. See 8 U.S.C.
§ 1158(a)(2)(D); 8 C.F.R. § 1208.4(a). First, Rodriguez-Olivera’s ignorance of
asylum’s time bar is not an extraordinary circumstance. See Alquijay v. Garland,
40 F.4th 1099, 1103–04 (9th Cir. 2022). Second, substantial evidence supports the
Board’s finding that the continuation of violence in Honduras was not a changed
circumstance sufficient to excuse his late filing. Rodriguez-Olivera has not pointed
to anything in his testimony or the country conditions report that strengthened his
application between 2007, when he entered the United States, and 2013, when he
filed for asylum after being arrested. See Hussain v. Rosen, 985 F.3d 634, 646 (9th

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Cir. 2021) (recognizing that a fear of “generalized violence” does not give rise to
eligibility for asylum).
3. For Rodriguez-Olivera’s withholding claims, the Board applied the
correct legal standards, and substantial evidence supports the denial of relief.
Rodriguez-Olivera argues that he faces persecution on the basis of his membership
in four social groups: (1) poor Honduran victims of crime identified by the police,
(2) Honduran returnees perceived as wealthy, (3) Honduran men resisting
cooperation with gang activities, and (4) members of the Rodriguez-Olivera
family.
The Board determined that the first three groups are not cognizable because
they are not “perceived, considered, or recognized by Honduran society to be
distinct social groups.” See Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir.
2020). As required by Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014),
the Board rejected these social groups using case-specific findings, noting that
there was nothing in the record to show that the groups are recognized by
Honduran society as distinct.
For the fourth proposed group, substantial evidence supports the Board’s
conclusion that there was no nexus between the Rodriguez-Olivera family and any
feared persecution. The Board found that there was no evidence that the kidnappers
of Rodriguez-Olivera’s brother “had any animus against the family.” Instead, the

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Board noted that the kidnappers demanded a ransom, making the event “a simple
criminal act and an attempt at extortion by gang members.” See Zetino v. Holder,
622 F.3d 1007, 1016 (9th Cir. 2010) (“[D]esire to be free from harassment by
criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground.”).
4. For Rodriguez-Olivera’s CAT claim, the Board applied the correct legal
standards, and substantial evidence supports the denial of relief. Substantial
evidence supports the Board’s findings that Rodriguez-Olivera’s past harm was not
torture because it did not take place with the acquiescence of the government and
was not sufficiently severe. See Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir.
2010) (noting that past torture is the principal factor in deciding likelihood of
future torture). There was no government acquiescence because Rodriguez-
Olivera’s instances of past harm were all at the hands of gangs, and frequently the
police helped him or his family members. The past harm was not severe enough to
constitute torture because it included only one stabbing, one confrontation at
gunpoint, and one further confrontation from which he was able to flee. Guo v.
Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018) (explaining that torture is “more
severe than persecution”) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th
Cir. 2005)).

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Substantial evidence also supports the Board’s finding that Rodriguez-
Olivera was not more likely than not to be tortured upon return to Honduras. While
country conditions evidence shows that there is torture in Honduras in the form of
police violence, that is not the type of torture Rodriguez says he experienced in the
past or fears in the future.
5. We need not reach the issue of administrative closure because Rodriguez-
Olivera no longer has any remaining claims for relief or pending petitions that
might affect his immigration proceedings. See Gonzalez-Caraveo v. Sessions, 882
F.3d 885, 893–94 (9th Cir. 2018).
6. Rodriguez-Olivera argues the Board failed to address various other issues.
Those issues either were not properly raised or were not necessary to support the
Board’s decision. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
The motion for a stay of removal (Dkt. No. 1) is denied. The temporary stay
of removal is lifted.
PETITION DENIED.

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