Jose Ramon Herrera v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE RAMON HERRERA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-406
Agency No.
A088-967-245
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 17, 2024**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Jose Ramon Herrera, a native and citizen of Nicaragua, petitions pro se for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his applications for asylum, withholding of
* 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
JAN 23 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 23-406
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir.
2020). We review de novo questions of law. Id. We deny the petition for review.
The record does not compel the conclusion that Herrera established changed
or extraordinary circumstances to excuse the untimely asylum application. See
Singh v. Holder, 649 F.3d 1161, 1164-65 (9th Cir. 2011) (en banc) (court retained
jurisdiction to review legal or constitutional questions related to the one-year filing
deadline); 8 C.F.R. § 1208.4(a)(4)-(5) (changed and extraordinary circumstances);
Alquijay v. Garland, 40 F.4th 1099, 1103 (9th Cir. 2022) (“As a general rule,
ignorance of the law is no excuse” (citation and internal quotation marks omitted)).
Thus, Herrera’s asylum claim fails.
We do not disturb the agency’s determination that Herrera failed to establish
he suffered harm that rises to the level of persecution. See Wakkary v. Holder, 558
F.3d 1049, 1059-60 (9th Cir. 2009) (petitioner’s past experiences, including two
beatings, even considered cumulatively, did not compel a finding of past
persecution); see also Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir.
2022) (court need not resolve whether de novo or substantial evidence review
applies, where result would be the same under either standard). Substantial
evidence supports the agency’s denial of withholding of removal because Herrera

-- 2 of 3 --

3 23-406
failed to show a clear probability of future persecution. See Nagoulko v. INS, 333
F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution “too
speculative”).
Substantial evidence also supports the agency’s denial of CAT protection
because Herrera failed to show it is more likely than not he will be tortured by or
with the consent or acquiescence of the government if returned to Nicaragua. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
PETITION FOR REVIEW DENIED.

-- 3 of 3 --