Nelson Ron Agtun-Roblero v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10997
Non-Argument Calendar
____________________
NELSON RON AGTUN-ROBLERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-452-820
____________________
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2 Opinion of the Court 21-10997
Before J ORDAN, NEWSOM , and G RANT, Circuit Judges.
PER CURIAM:
The Department of Homeland Security placed Nelson
Agtun-Roblero and his son Abner Agtun-Domingo, both
Guatemalan nationals, in removal proceedings for entering the
United States without being admitted or paroled.
See 8 U.S.C.
§ 1182(a)(6)(A)(i). A presiding immigration judge consolidated
their cases. In that joint proceeding, Agtun-Roblero filed an
application for asylum and withholding of removal, and listed
Agtun-Domingo as a beneficiary of any relief he received.1
The IJ denied the Agtuns relief for, among other reasons,
their failure to show that they were persecuted “on account of” a
protected ground—specifically, their asserted membership in a
particular social group—and ordered them removed.
See id.
§§ 1101(a)(42), 1158(b)(1)(A), 1231(b)(3)(A);
see also Murugan v.
U.S. Att’y Gen., 10 F.4th 1185, 1196 (11th Cir. 2021). The Board
agreed. The Agtuns had shown that their alleged persecution by
gang members was motivated by the gang’s criminal intentions,
nothing more. And under Board opinions like
Matter of A-B-, mere
criminal motives are not a basis for asylum or withholding of
1 Agtun-Roblero also sought protection under the Convention Against
Torture, but no longer pursues that relief.
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21-10997 Opinion of the Court 3
removal. 27 I. & N. Dec. 316, 337, 339 (U.S. Att’y Gen. 2018).2 So
the Board dismissed the appeal and, in doing so, made the IJ’s
removal order final. 8 C.F.R. § 1241.1(a).
The Agtuns did not immediately petition this Court for
review of the removal order. Instead, they asked the Board to
reconsider, arguing that
Matter of A-B- was wrongly decided and
misapplied to their case. The Board denied that request.
Only then—405 days after the removal order had become
final—did the Agtuns file a petition for review. That petition is
styled as a challenge to the Board’s decision denying
reconsideration. But in substance it challenges conclusions made
only in the final removal order. The Agtuns argue that their
persecution was based on their membership in a number of
proposed social groups, such as their family, persons opposed to
gangs, and persons who refuse to sell drugs. Yet they never
challenge the application of
Matter of A-B-. Indeed, the Agtuns
build their arguments here on
Matter A-B-’s analytical framework.
The Agtuns thus ask us to review the underlying removal
order, not the order denying reconsideration. We cannot do as
they ask, however, because they filed their petition 405 days after
2 The Attorney General has since vacated this opinion.
See Matter of A-B-, 28
I. & N. Dec. 307, 307 (U.S. Att’y Gen. 2021). But he instructed the Board to
continue following earlier precedent, which emphasizes that a noncitizen is
not eligible for asylum simply because he is a victim of criminal activity.
See
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 235 (BIA 2014);
see also Rodriguez v.
U.S. Att’y Gen., 735 F.3d 1302, 1310–11 (11th Cir. 2013).
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4 Opinion of the Court 21-10997
the Board dismissed the appeal. The cutoff is 30 days, and a motion
for reconsideration does not toll that timeline.
See 8 U.S.C.
§ 1252(b)(1);
Stone v. I.N.S., 514 U.S. 386, 395 (1995). We therefore
lack jurisdiction to consider the Agtuns’ petition.
See Dakane v.
U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005).
We DISMISS the petition.
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