Rodrigo Ramos-Braga v. Jefferson B. Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1998
RODRIGO RAMOS-BRAGA,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 097-837-809
____________________
ARGUED JANUARY 24, 2018 — DECIDED MAY 21, 2018
____________________
Before BAUER, KANNE, and BARRETT, Circuit Judges.
PER CURIAM. Rodrigo Ramos-Braga, a citizen of Brazil, pe-
titions for review of the denial of his second motion to reopen
proceedings on his applications for special-rule cancellation
of removal, withholding of removal, and protection under the
Convention Against Torture (CAT). His motion was both nu-
merically barred and untimely filed with the Board of Immi-
gration Appeals, but Ramos-Braga argued that these limits
2 No. 17-1998
should be excused under the doctrine of equitable tolling for
ineffective assistance of counsel or under a statutory excep-
tion based on changed country conditions. The Board deter-
mined that neither exception applied and that the time and
numerical limits therefore barred his motion. Because the
Board did not abuse its discretion, we deny the petition.
I.
Ramos-Braga was raised in a neighborhood of São Paulo,
Brazil that came to be controlled by a multi-national gang
named the Primero Comando Capital (PCC). His father dealt
drugs for the gang and was one of its managers, until he had
a falling out with the gang’s leader. Starting when Ramos-
Braga was 13, the PCC tried repeatedly to recruit him, but he
refused to join. Unrelenting, PCC members caught Ramos-
Braga at school and around town, physically attacked him at
least ten times, and eventually threatened him with death. In-
itially, Ramos-Braga reported these attacks to Brazilian offi-
cials, but local police did nothing in response and eventually,
officers would beat him when he made reports, claiming that
he was a suspected gang member. At age 16 he stopped re-
porting his PCC encounters to police because in one instance
officers beat him until he spat blood, and he came to believe
that the police were paid by the PCC to harm him. When Ra-
mos-Braga was about 18 years old, PCC members offered him
one “last chance” to join; after he refused they assaulted him
with pipes—severely injuring him and hospitalizing him for
two weeks. He stopped attending college and spent months
moving between homes of his family members in other parts
of the city and another town. When he returned to São Paulo,
a PCC member shot him from behind, putting him back in the
hospital for days.
No. 17-1998 3
In January 1999, three months after being shot, Ramos-
Braga was admitted to the United States on a student visa. He
eventually married a U.S. citizen, but the two had a tumultu-
ous relationship. Ramos-Braga estimated that his wife physi-
cally abused him over 100 times.
Seven years after he arrived, the Department of Homeland
Security issued a Notice to Appear charging Ramos-Braga
with overstaying his visa and therefore being removable un-
der 8 U.S.C. § 1227(a)(1)(B). Ramos-Braga conceded his re-
movability and eventually sought special-rule cancellation of
removal for battered spouses and withholding of removal un-
der 8 U.S.C. § 1231(b)(3) and CAT.
While removal proceedings were pending, Ramos-Braga
and his wife got into a fight. He was convicted of battery un-
der Wisconsin law and, after he used a jailhouse phone to ask
his wife not to testify, intimidation of a witness, WIS. STAT.
§§ 940.19(1), 940.42. DHS added a charge that he was remov-
able under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been con-
victed of two crimes involving moral turpitude. He chal-
lenged removability on this ground.
At his removal hearing, Ramos-Braga testified about the
beatings by PCC members and police officers. He also said
that the gang recruited young men and that he believed he
specifically was recruited because of something his father had
done, but he did not know what. The IJ found Ramos-Braga
credible but denied his applications for special-rule cancella-
tion and withholding and ordered him removed to Brazil.
To obtain special-rule cancellation, Ramos-Braga had to
prove, among other things, that he had been battered by his
wife and was not subject to certain disqualifying grounds of
4 No. 17-1998
removability or inadmissibility. See 8 U.S.C. § 1229b(b)(2). The
IJ concluded that Ramos-Braga was disqualified on two
grounds: his convictions for battery and witness intimidation
were crimes of moral turpitude, and he had been confined in
excess of five years total for past convictions. See 8 U.S.C.
§§ 1229b(b)(2)(A)(iv), 1182(a)(2)(A)(i)(I), 1182(a)(2)(B),
1227(a)(2)(A)(ii).
Ramos-Braga could receive withholding of removal in two
ways: either under statute or under CAT. To receive withhold-
ing of removal under statute, he had to prove that it was more
likely than not that, if he were removed, he would be perse-
cuted in Brazil on account of his membership in a particular
social group. See id. § 1231(b)(3); 8 C.F.R. § 1208.16(b). The IJ
concluded that Ramos-Braga suffered past persecution but
presented “little proof” that this persecution was on account
of his particular social group, namely his family ties to his fa-
ther. Instead, “the greater weight of the evidence support[ed]
the conclusion that he was persecuted because he refused the
PCC’s recruitment efforts.” To merit withholding under CAT,
Ramos-Braga had to demonstrate that it was more likely than
not that, if removed to Brazil, he would be tortured by or with
the acquiescence of a public official. See 8 C.F.R.
§ 1208.16(c)(2). The IJ determined that he did not carry his
burden to prove that he was more likely than not to be tor-
tured by either the police or PCC.
Ramos-Braga, who was represented by counsel, appealed
the denial of his applications for withholding but not the de-
nial of special-rule cancellation. The Board affirmed the IJ’s
decision on December 18, 2014.
In January 2015, Ramos-Braga petitioned this court for re-
view and moved to stay his removal. His attorney ended the
No. 17-1998 5
representation over a fee dispute, however, and Ramos-Braga
continued pro se, filing motions in this court and, after his pe-
tition was denied, another petition for review that was dis-
missed for lack of jurisdiction for having been filed more than
30 days after the final order of removal.
Ramos-Braga, still pro se, moved the Board to reopen pro-
ceedings on his applications for relief from removal and to re-
consider its dismissal order. The Board denied his motion as
untimely in June 2015, but he maintains he never received no-
tice of this decision.
Ramos-Braga filed a second pro se motion to reopen or re-
consider on August 31, 2015, and at issue here is the Board’s
denial of that motion on the grounds that it was untimely and
successive. Ramos-Braga explained that his motion to reopen
was late because his former attorney had promised repeatedly
to file a timely motion, but he never did. He also said that con-
ditions in Brazil had gotten worse since the hearing, and he
offered evidence to that effect. A year later, in August 2016,
Ramos-Braga retained his present attorney, who filed a sup-
plemental brief supporting the still-pending second motion to
reopen. Through counsel, Ramos-Braga argued that his sec-
ond motion to reopen should not have been barred because
the exceptions for equitable tolling for ineffective assistance
of counsel and changed conditions in the country of removal
excused his noncompliance. Regarding the first exception, Ra-
mos-Braga said that his attorney in the original appeal to the
Board had waived meritorious arguments for special-rule
cancellation and withholding under CAT.
The Board denied the second motion to reopen based on
its conclusion that Ramos-Braga did not meet either excep-
tion. Equitable tolling could not benefit him, the Board said,
6 No. 17-1998
because he did not file his motion as soon as possible after
learning of his former attorney’s alleged errors, nor was he
prejudiced by any possible error. The Board also concluded
that he did not offer evidence of conditions in Brazil that had
changed since the removal hearing; his evidence of “ongoing”
PCC threats were a “continuation” of past harms he experi-
enced in Brazil.
II
Noncitizens can file just one motion to reopen immigra-
tion proceedings, and that motion must be submitted within
90 days of the final order of removal. See 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i). These time and numerical limits are,
however, non-jurisdictional claim-processing rules, subject to
the doctrine of equitable tolling and statutory exceptions.
See Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015); Ji Cheng Ni v.
Holder, 715 F.3d 620, 623 (7th Cir. 2013) (citing 8 U.S.C.
§ 1229a(c)(7)(C)(ii)); Pervaiz v. Gonzales, 405 F.3d 488, 490
(7th Cir. 2005).
The question here is narrow: we must decide only whether
the Board wrongly concluded that neither equitable tolling
nor changed conditions excuse the limits on Ramos-Braga’s
second motion to reopen. 1 This court reviews the Board’s de-
nial of a motion to reopen for an abuse of discretion, and an
1 Ramos-Braga also argues that the Board wrongly denied his motion
to reconsider the Board’s order dismissing his original appeal. The Board
denied this motion also for being inexcusably untimely and numerically
barred, see 8 U.S.C. § 1229a(c)(6)(A), (B); 8 C.F.R. § 1003.2(b)(2), without
considering whether the underlying dismissal order required reconsider-
ation. We therefore have no merits decision to review on the issue of re-
consideration.
No. 17-1998 7
abuse occurs if the decision lacks a “rational explanation, in-
explicably depart[s] from established policies, or rest[s] on [ei-
ther] an impermissible basis,” Marinov v. Holder, 687 F.3d 365,
368 (7th Cir. 2012), or legal error, Habib v. Lynch, 787 F.3d 826,
831 (7th Cir. 2015).
A. Equitable Tolling
Ramos-Braga contends that the Board wrongly refused to
equitably toll the limits on his second motion to reopen his
applications for special-rule cancellation and withholding of
removal under CAT. Equitable tolling applies if the noncitizen
demonstrates prejudice from counsel’s deficient performance
and exhibits diligence by seeking relief as soon as reasonably
possible. See Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir. 2017).
Even if we assume the Board erred in its analysis of dili-
gence, Ramos-Braga has failed to show that he was prejudiced
by his former attorney’s errors. Ramos-Braga argues that he
was prejudiced by the attorney’s failures to appeal (1) the de-
nial of his application for special-rule cancellation and (2) the
IJ’s conclusion, in denying CAT relief, that the PCC was not
likely to torture him with the government’s acquiescence
upon his return to Brazil.
1. Special-Rule Cancellation
Ramos-Braga contends that his former attorney should
have appealed the denial of special-rule cancellation and ar-
gued that he remained eligible for this relief because, contrary
to the IJ’s conclusion, his battery conviction is not a crime in-
volving moral turpitude.
But Ramos-Braga overlooks the IJ’s other reason for con-
cluding that he was ineligible for special-rule cancellation—
his confinement in excess of 5 years, see 8 U.S.C.
8 No. 17-1998
§§ 1229b(b)(2)(A)(iv), 1182(a)(2)(B), on convictions for battery,
witness intimidation, disorderly conduct, and multiple occa-
sions of operating a vehicle while intoxicated. This was one
reason the Board decided that Ramos-Braga was not preju-
diced. The Board said this disqualifying ground could not be
waived, and rested this conclusion on its statutory interpreta-
tion in Matter of Y-N-P-, 26 I. & N. Dec. 10, 17 (BIA 2012) (de-
ciding that the only waiver applicable to special-rule cancel-
lation is located in 8 U.S.C. § 1229b(b)(5), which excuses cer-
tain domestic-violence convictions). Two other circuits have
deferred to the Board’s interpretation. See Arevalo v. U.S. Att’y
Gen., 872 F.3d 1184, 1190 (11th Cir. 2017); Garcia-Mendez v.
Lynch, 788 F.3d 1058, 1065 (9th Cir. 2015). Ramos-Braga has
not argued that the Board’s interpretation is unreasonable.
Without such an argument, the petition fails to address the
Board’s conclusion that Ramos-Braga is ineligible for special-
rule cancellation, even if his battery conviction is not a crime
involving moral turpitude.
Because Ramos-Braga would remain ineligible for special-
rule cancellation even if his former attorney had raised the ar-
gument he presses now, the attorney’s omission of this argu-
ment could not have prejudiced his appeal. The Board reason-
ably concluded, therefore, that Ramos-Braga suffered no prej-
udice by his former attorney’s failure to appeal the denial of
special-rule cancellation.
2. Withholding under CAT
Ramos-Braga argues next that he was prejudiced in the ap-
peal of his denied CAT application. He contends that his for-
mer attorney should have argued that the IJ failed to consider
evidence that, if he is removed to Brazil, the PCC would tor-
ture him without intervention by public officials. In denying
No. 17-1998 9
the second motion to reopen, the Board said this potential er-
ror could not have prejudiced Ramos-Braga because the evi-
dence he offered, to the IJ originally and in support of reopen-
ing, could not establish that official torture or acquiescence
was more likely than not.
“CAT protection requires evidence that the Petitioner will
be tortured by the government, or with the government’s ac-
quiescence.” Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016).
Acquiescence means “the public official, prior to the activity
constituting torture, ha[d] awareness of such activity and
thereafter breach[ed] his or her legal responsibility to inter-
vene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7); Lopez,
810 F.3d at 493. We will reverse the Board’s conclusion that
Ramos-Braga’s evidence is insufficient only if the evidence
compels the conclusion that official acquiescence is more
likely than not. See Orellana-Arias v. Sessions, 865 F.3d 476, 490
(7th Cir. 2017).
Relying on our precedent in Rodriguez-Molinero v. Lynch,
808 F.3d 1134 (7th Cir. 2015), Ramos-Braga argues that there
is a “substantial risk” that the Brazilian government will ac-
quiesce to his torture by the PCC if he is removed to Brazil.
But his evidence does not compel that conclusion.
Ramos-Braga relies heavily on the violence he experienced
at the hands of the police and the PCC when he was a teen-
ager. Yet the fact that Ramos-Braga was beaten by police
roughly twenty years ago does not show that he is likely to be
tortured by officials today. See Lopez, 810 F.3d at 493 (noting
that man who stabbed petitioner twenty-five years earlier
may no longer seek to harm petitioner). Moreover, Ramos-
Braga has offered nothing more than his own speculation that
10 No. 17-1998
the police acted at the PCC’s urging when they attacked him.
See Lhanzom v. Gonzales, 430 F.3d 833, 845 (7th Cir. 2005) (re-
versing IJ’s decision that rested on testimony for which wit-
ness had no personal knowledge). The evidence of his beat-
ings by the PCC in the late 1990s is similarly stale. Even if the
Brazilian government acquiesced to that violence, its conduct
twenty years ago is not compelling evidence of how the gov-
ernment would respond to such violence today.
Ramos-Braga introduced more current evidence as well.
His strongest evidence is an affidavit from his mother. In
2016, his mother complained to police after PCC members, al-
legedly acting on a vendetta against Ramos-Braga, robbed his
grandfather at home in 2015 and threatened his mother in
2016. According to Ramos-Braga’s mother, PCC members
stated over the internet that they “will be waiting” for Ramos-
Braga when he returns home. Officers in one district referred
his mother to another district, which promised to investigate
the 2016 threats, but the investigation has not been resolved.
Ramos-Braga takes the referral of the complaint from one of-
fice to another and the lack of resolution as evidence that the
police are unwilling to protect his family—and, ultimately,
him—from the PCC.
The PCC’s threats to Ramos-Braga’s family do offer sup-
port for his contention that the PCC is likely to torture him if
he returns to Brazil. But CAT offers protection from govern-
ment torture, not private conduct. Thus, Ramos-Braga cannot
secure relief simply by showing a substantial risk that the
PCC will torture him; he must demonstrate that there is a sub-
stantial risk that Brazilian officials will acquiesce in the tor-
ture. This is where Ramos-Braga’s claim founders.
No. 17-1998 11
The police department’s response to the complaint lodged
by Ramos-Braga’s mother falls far short of establishing that
the police are indifferent to or complicit in the PCC’s threats
to Ramos-Braga’s family. For one thing, the police promised
to investigate—they neither ignored nor denied his mother’s
request for help. Ramos-Braga contends that the police gave
his mother the run-around, but the evidence does not support
that inference. Referring a complaint from one district to an-
other is more consistent with bureaucracy than animosity,
and the fact that the investigation is not yet resolved does not
mean that the police are turning a blind eye to the PCC.
Again, we will only disturb the Board’s determination if
substantial evidence on the record compels a contrary conclu-
sion. When reviewing a claim that the government acquiesced
to torture, we have required much more evidence of official
complicity or corruption to satisfy that standard than Ramos-
Braga has offered. For example, in Rodriguez-Molinero, we
granted a petition for review because the petitioner demon-
strated a substantial risk that the Mexican government would
acquiesce to, or even collaborate in, his torture by a drug car-
tel. 808 F.3d at 1138–1140. This conclusion was based on the
fact that the petitioner had been previously tortured by the
police at the behest of the drug cartel, as well as unchallenged
expert testimony that the Mexican government is rife with
corruption and helpless to prevent gang violence throughout
the country. Id. at 1136–37. In Wanjiru v. Holder, 705 F.3d 258
(7th Cir. 2013), we remanded a CAT claim because the IJ
brushed over “extensive evidence” that police and govern-
ment officials abetted and directed a gang that posed a threat
of torture to the petitioner. Id. at 266. Indeed, the International
Criminal Court had “confirmed charges (a step similar to
finding probable cause)” against two senior Kenyan officials
12 No. 17-1998
for allegedly using the gang to murder thousands of citizens.
Id. In Mendoza-Sanchez, 808 F.3d 1182 (7th Cir. 2015), we re-
manded (at the government’s request) and said that an appli-
cant had a “strong” CAT claim because he had evidence that
police officers in Mexico routinely collaborated with and pro-
tected a nationwide gang that had targeted him. Id. at 1184–
85. A human-rights report from the State Department detailed
widespread corruption of Mexican police, who, at both the
city and state level, were directly involved in the activities of
drug organizations by “kidnapping, extort[ing], and provid-
ing protection for, or acting directly on behalf of, organized
crime and drug traffickers.” Id. at 1184.
In each of these cases, the petitioner showed that the gov-
ernment is utterly indifferent or downright complicit in the
face of violence and torture by gangs. Ramos-Braga argues
that the PCC wields similar influence in the Brazilian govern-
ment, but his evidence belies that argument.
Ramos-Braga contends that the PCC has “infiltrated” the
Brazilian police forces, and he offers a news article reporting
that PCC members “may have participated” in explosives
trainings for police officers in São Paulo. If gang members had
infiltrated police forces, this would indeed be evidence that
the government is unable to protect people targeted by the
gang. See Mendoza-Sanchez, 808 F.3d at 1183, 1185. But the re-
port Ramos-Braga offers falls well short of showing that PCC
members are within the ranks of Brazilian police. According
to the report, some of the explosives training courses were of-
fered by private contractors who failed to perform back-
ground checks––possibly allowing PCC members to register
for the course without the knowledge of the São Paulo police
department. Evidence of a poorly planned explosives training
No. 17-1998 13
does not demonstrate that the Brazilian police have been in-
filtrated by the PCC.
In fact, Ramos-Braga’s own evidence undermines his ar-
gument that officials and the PCC cooperate. The article about
explosive trainings discloses that in 2012 the PCC frequently
attacked police forces, and that the two sides committed
around 200 “revenge killings” within a couple months. A 2014
article from a Brazilian newspaper shows that Brazilian offi-
cials initiated a new operation against the PCC and detained
members attempting to smuggle drugs out of the country.
Other reports he offered show that police have arrested doz-
ens of PCC members and that Brazilian authorities are in a
“bloody struggle” to subvert the PCC. Ramos-Braga did offer
a report from the Australian government showing that some
Brazilian officials were corrupt as of 2012; police officers were
arrested for selling information to the PCC about investiga-
tions of the gang’s drug trafficking, while other officers ex-
tracted bribes from the PCC through kidnapping and abusing
the family of PCC members. However, the report does not
show, as Ramos-Braga asserts, that corrupt police physically
harmed citizens to assist the PCC.
Finally, Ramos-Braga presents news articles and a country
report issued in 2013 by the U.S. Department of State that,
taken together, show that police officers in Brazil “routinely”
kill criminal suspects, targeting men from the “slums.” These
reports do not suggest police complicity with the PCC; Ra-
mos-Braga introduces them to show that the police may target
him because he is from the slums, and police in his hometown
may attack him for resembling his father, a criminal. But re-
ports that police officers target men from the slums generally
14 No. 17-1998
is not evidence that they would torture Ramos-Braga specifi-
cally. See Orellana-Arias, 865 F.3d at 490 (concluding that coun-
try reports of government’s acquiescence to violence against
citizens was not evidence that government would acquiesce
to torture of petitioner specifically); Lopez, 810 F.3d at 493 (de-
ciding that petitioner, a gay man, did not show threat of vio-
lence specific to him by submitting reports that gay men have
been victims of violence); Rashiah v. Ashcroft, 388 F.3d 1126,
1133 (7th Cir. 2004) (concluding that CAT relief was unavaila-
ble to applicant who offered country report describing in-
stances of torture but no evidence that he would be specifi-
cally targeted). Twenty years ago police officers knew Ramos-
Braga lived in the slums and suspected he was a criminal, but
there is no evidence that these officers remain with the force
or that they would recognize him today.
In sum, Ramos-Braga’s past experiences are troubling, but
his evidence does not compel the conclusion that Brazilian of-
ficials today would torture him or permit the PCC to do so.
Thus we will not disturb the Board’s conclusion that Ramos-
Braga offered insufficient evidence of official acquiescence.
And because Ramos-Braga’s evidence is insufficient, he was
not prejudiced by any possible attorney error in the appeal of
his CAT application. The Board therefore did not abuse its dis-
cretion in deciding that equitable tolling did not apply to Ra-
mos-Braga’s second motion to reopen.
B. Changed Conditions
Ramos-Braga also contends that changed conditions in
Brazil warrant reopening his applications for withholding of
No. 17-1998 15
removal. 2 No time or numeric limits apply to a motion to re-
open that is based on “changed circumstances arising … in
the country to which deportation has been ordered.” 8 C.F.R.
§ 1003.2(c)(3)(ii). For this exception to apply, Ramos-Braga
needs evidence of a changed country condition that is “mate-
rial and was not available and could not have been discovered
or presented” at the removal hearing. See id.; Ji Cheng Ni,
715 F.3d at 623. This court’s task is to determine whether the
Board abused its discretion in deciding that changed country
conditions do not excuse the limits on Ramos-Braga’s motion
to reopen. See Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir.
2007). We conclude that the Board did not abuse its discretion.
To show that conditions in Brazil have changed, Ramos-
Braga offered evidence that: (1) the PCC has “marked” him to
die because the gang’s leader believes his brother and two
cousins were killed by Ramos-Braga’s father in 1997; (2) the
PCC has “barbarically murdered” eight of Ramos-Braga’s
cousins, most recently in 2013; (3) the PCC has offered a re-
ward for Ramos-Braga’s whereabouts; (4) after the PCC
learned that Ramos-Braga might return to Brazil, they robbed
his grandfather at home using a gun in 2015 and threatened
his mother over the internet in 2016; (5) one police district re-
ferred his mother’s request to investigate the 2016 threats, and
the other district promised to investigate the threats, but the
investigation has not been resolved; and (6) Brazilian police
2 Ramos-Braga also incorporates into his withholding arguments his
view that changed conditions in Brazil warrant reopening proceedings so
that he can apply for asylum. But the Board never had an opportunity to
consider arguments related to asylum because Ramos-Braga did not de-
velop them in his motion to reopen at issue here. We therefore express no
opinion on this portion of his petition.
16 No. 17-1998
have routinely committed extrajudicial killings of men from
the slums whom they suspect to be criminals.
1. Withholding under CAT
Pertaining to his CAT application, Ramos-Braga argues
that the PCC’s recent growth and threats are a changed con-
dition that the Board “irrationally” discounted as a “continu-
ation” of dangers that he previously experienced in Brazil. He
relies on an out-of-circuit decision, Malty v. Ashcroft, 381 F.3d
942 (9th Cir. 2004), in which the Ninth Circuit said “changed
circumstances will almost always relate to [an] initial claim
…. The critical question is … whether circumstances have
changed sufficiently that a petitioner who previously did not
have a legitimate claim … now has a well-founded” claim. Id.
at 945. A worsening PCC threat is, however, immaterial to
whether Ramos-Braga’s CAT application must be reopened.
As discussed above, he needed but failed to offer evidence
that compels finding that Brazilian officials would acquiesce
to his torture by the PCC.
Ramos-Braga also argues that the Board ignored new evi-
dence that he would face torture directly from public officials
if he is removed to Brazil. He again points to the recent news
articles reporting that Brazilian police have targeted men
from the slums and criminal suspects for extrajudicial kill-
ings. He stresses that police in his hometown beat him, possi-
bly suspecting he was a criminal because he lived in the
slums. He says that his evidence, together, establishes a sub-
stantial likelihood that police officers will torture him. The
Board, while considering Ramos-Braga’s argument for equi-
table tolling, said that the evidence he offered—initially and
with his second motion to reopen—did not show that officials
were more likely than not to torture him.
No. 17-1998 17
We will reverse the Board’s conclusion that Ramos-
Braga’s evidence is insufficient only if the evidence compels a
contrary conclusion. See Lopez, 810 F.3d at 492–93. As ex-
plained above, the articles Ramos-Braga recently offered do
not compel the conclusion that public officials are more likely
than not to torture him. We have said that reports that officials
have tortured members of a certain group do not necessarily
demonstrate that a petitioner who belongs to that group
would face a substantial risk of torture if removed. Bernard v.
Sessions, 881 F.3d 1042, 1047–48 (7th Cir. 2018). To show a risk
specific to him, Ramos-Braga needed evidence that Brazilian
police would recognize him as part of the groups targeted for
torture. See Lopez, 810 F.3d at 493; Rashiah, 388 F.3d at 1133.
Yet he offered no evidence that Brazilian police today would
suspect him of crime or would know, roughly twenty years
later, that he lived in the slums in 1998. To the extent he fears
police torture because he would be forced to live in the slums
if removed to Brazil, this fear of generalized violence is insuf-
ficient to establish that he in particular is more likely than not
to be tortured. See Lozano-Zuniga v. Lynch, 832 F.3d 822, 830–
31 (7th Cir. 2016).
Because Ramos-Braga did not present evidence that con-
ditions in Brazil have changed such that he now may have a
CAT claim, the Board did not abuse its discretion in denying
his motion to reopen proceedings on that form of relief.
2. Withholding under Statute
Ramos-Braga next argues that changed conditions in Bra-
zil excuse the limits on his motion to reopen his application
for withholding under statute, but again he is wrong. He first
points to new evidence that the PCC’s intent to kill him stems
from the gang leader’s desire to avenge the murders of his
18 No. 17-1998
family members. But this motive has not changed since the
killings of the gang leader’s family in 1997, well before the
2014 removal hearing, and thus the motivation, though re-
cently discovered, is not a changed condition.
Second, Ramos-Braga argues that the PCC’s offer of a re-
ward for his whereabouts is a changed condition, but he has
not carried his evidentiary burden. To show that the reward
offer is a changed condition, Ramos-Braga needed evidence
that the offer was made after the removal hearing. See Xiu
Zhen Lin v. Mukasey, 532 F.3d 596, 596–97 (7th Cir. 2008). In his
petition he sidesteps his burden and contends the Board spec-
ulated that the reward offer might date back to 1998. But that
is not what the Board said; it observed that the gang’s intent
to harm him dated that far back and said that no evidence,
including an affidavit from his mother’s neighbor who re-
ported the reward offer, showed the offer was made after the
removal hearing. Instead of clarifying when the reward was
offered, Ramos-Braga says that the offer could not be from
1998 because the neighbor learned of it through her 19-year-
old son, a current PCC member who would have been an in-
fant then. But this reasoning is flawed; the offer may have
been old when the neighbor’s son learned of it. As difficult as
it might have been for Ramos-Braga to gather evidence while
detained, he has never represented that he exhaustively inves-
tigated when this offer was made.
Last, Ramos-Braga disputes the Board’s conclusion that
recent dangers posed by the PCC are a continuation of condi-
tions that existed before the removal hearing. Although wors-
ening conditions in the country of removal may constitute a
change that requires reopening, see id.; Ji Cheng Ni, 715 F.3d
at 627; Mekhael v. Mukasey, 509 F.3d 326, 327 (7th Cir. 2007),
No. 17-1998 19
the PCC’s recent threats, robbery, and murders are immate-
rial to whether Ramos-Braga’s application for withholding
under statute should be reopened. The IJ denied this applica-
tion not for lack of evidence of past persecution, but because
Ramos-Braga did not establish a nexus between his likely per-
secution by the PCC and his particular social group. Thus to
present evidence that conditions have degenerated so that he
now has a claim for withholding under statute, Ramos-Braga
needed to show a change related to this nexus between the
PCC’s persecution and his social group based on ties to his
father. He did present newly found evidence of the PCC’s mo-
tive for harming him, but again, that motive has not changed
since 1997.
In sum, Ramos-Braga failed to offer new, material evi-
dence that conditions in Brazil have changed since the re-
moval hearing.
III
The Board did not abuse its discretion by denying Ramos-
Braga’s second motion to reopen as numerically barred and
untimely. Ramos-Braga neither experienced prejudice from
his former attorney’s potential errors nor presented new, ma-
terial evidence that conditions in Brazil have changed since
the removal hearing. Accordingly, the petition for review is
DENIED.