Benjamin Campos Escobar v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN DE JESUS CAMPOS No. 18-72932
ESCOBAR, AKA Rene Campos,
Agency No. A094-320-518
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2023**
San Francisco, California
Before: FRIEDLAND, BADE, and KOH, Circuit Judges.
Benjamin De Jesus Campos Escobar (“Campos”), a native and citizen of El
Salvador, petitions pro se for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from a decision of the Immigration Judge
*
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).
(“IJ”) denying his applications for asylum, humanitarian asylum, and withholding
of removal.1 We have jurisdiction under 8 U.S.C. § 1252. We deny the petition
for review.
1. The absence of time and date information in Campos’s notice to
appear did not divest the immigration court of jurisdiction. See United States v.
Bastide-Hernandez, 39 F.4th 1187, 1188, 1193 (9th Cir. 2022) (en banc) (holding
that the absence of time and date information in a notice to appear does not deprive
the immigration court of jurisdiction, and the filing of a subsequent notice that
provides such information complies with 8 C.F.R. § 1003.14(a)). Because Campos
received a subsequent notice of hearing, the immigration court had jurisdiction
over his case.
2. The BIA did not err in concluding that Campos is ineligible for
asylum because his application was untimely. See 8 U.S.C. § 1158(a)(2)(B), (D)
(absent changed or extraordinary circumstances, an application for asylum must be
filed within one year of arrival in the United States). Campos argues that his
Temporary Protected Status from 2001 until 2008 is an “extraordinary
circumstance[]” justifying his untimely application. See 8 C.F.R.
1
Campos does not challenge the agency’s denial of CAT protection or
cancellation of removal. Therefore, even construing his claims liberally, see
Gonzalez-Castillo v. Garland, 47 F.4th 971, 980 (9th Cir. 2022), he has forfeited
those claims, Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018).
2
§ 1208.4(a)(5)(iv) (maintaining Temporary Protected Status may be an
extraordinary circumstance, but the applicant must file the application “within a
reasonable period given those circumstances”). But Campos’s status from 2001 to
2008 does not explain his failure to file his asylum application before he applied
for and received Temporary Protected Status. The BIA noted that Campos, who
entered the United States in 1993, did not file his asylum application until 2000,
twenty-four months after the one-year rule’s effective date of April 1998, and
before he applied for Temporary Protected Status.2 Substantial evidence supports
the BIA’s conclusion that given this delay, Campos did not file his application
within “a reasonable time.” See Husyev v. Mukasey, 528 F.3d 1172, 1181–82 (9th
Cir. 2008) (holding that “[i]n the absence of any special considerations,” a delay of
six months is presumptively unreasonable and concluding applicant’s 364-day
delay, without explanation, was unreasonable); Dhital v. Mukasey, 532 F.3d 1044,
1050 (9th Cir. 2008) (per curiam) (petitioner failed to file application within a
“reasonable period” when he waited twenty-two months without explanation for
the delay).
2
The BIA stated that Campos did not file his asylum application until 2000,
apparently based on a representation in Campos’s brief, but Campos did not submit
his application until 2009. This error, which, if anything, benefitted Campos, does
not require remand. See Gutierrez-Zavala v. Garland, 32 F.4th 806, 810 (9th Cir.
2022) (concluding that remand was not necessary when it would be “an idle and
useless formality” (citation omitted)).
3
3. Substantial evidence also supports the agency’s denial of Campos’s
application for withholding of removal. To establish entitlement to withholding of
removal, the applicant must show past persecution or make “an independent
showing of clear probability of future persecution” on account of his race, religion,
nationality, membership in a particular social group, or political opinion. See
Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). Demonstrating past
persecution gives rise to a presumption of future persecution, Sharma v. Garland, 9
F.4th 1052, 1060 (9th Cir. 2021), which the government may rebut by showing that
there has been a “fundamental change in circumstances such that the applicant no
longer has a well-founded fear of persecution,” 8 C.F.R. § 1208.13(b)(1)(i)(A).
The BIA concluded that country conditions in El Salvador had changed so
substantially that any presumption of a well-founded fear of persecution had been
rebutted. This conclusion is supported by substantial evidence. See Sowe v.
Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (reviewing agency’s factual
findings regarding changed country conditions for substantial evidence).
Campos’s claim is premised upon his fear of being persecuted because members of
his family served in the Salvadoran military and suffered harm at the hands of the
Farabundo Martí National Liberation Front (“FMLN”) during the Salvadoran Civil
War. But the BIA noted that Campos’s mother has continued to reside in El
Salvador and has not experienced any harm. Lim v. INS, 224 F.3d 929, 935 (9th
4
Cir. 2000) (“This court has allowed ongoing family safety to mitigate a well-
founded fear, particularly where the family is similarly situated to the applicant and
thus presumably subject to similar risk.”). Campos testified that he fears the same
FMLN “guerrillas” who harmed his father decades ago,3 but the agency found that
the Peace Accords had since been signed, country reports no longer mentioned the
Civil War, and no one in Campos’s family had been harmed or threatened since
1999, despite his mother’s continued residence in El Salvador. Substantial
evidence supports the agency’s determination that any presumption of persecution
was rebutted.
4. Campos argues that the IJ erred by failing to consider his eligibility
for humanitarian asylum. Even assuming there was error, it was harmless because
the BIA considered Campos’s eligibility. See Brezilien v. Holder, 569 F.3d 403,
411 (9th Cir. 2009).
PETITION DENIED.
3
Campos asserted that the guerrillas still exist, now as gangs.
5