NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 11 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTOS FRANCISCO MICHICOJ- No. 22-1963 VELASQUEZ, Agency No.

A200-244-590

Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted December 7, 2023** Seattle, Washington

Before: McKEOWN, N.R. SMITH, and SANCHEZ, Circuit Judges.

Santos Francisco Michicoj-Valezquez (“Petitioner”), a native and citizen of

Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)

* 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). decision affirming the Immigration Judge’s (“IJ”) denial of his applications for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Where, as here,

the BIA summarily affirmed the IJ’s decision, we review the IJ’s decision as the

final agency action. Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014)

(citations omitted). Reviewing the agency’s factual findings for substantial

evidence and its legal conclusions de novo, see Flores Molina v. Garland, 37 F.4th

626, 632 (9th Cir. 2022), we deny the petition.

1. The agency found Petitioner’s application for asylum untimely and

not filed within a reasonable period after his alleged changed circumstances.

Petitioner’s 2013 asylum application, filed seven years after he arrived in the

United States in 2006, was untimely as a matter of law. See 8 U.S.C.

§ 1158(a)(2)(B). Although Petitioner contends that changed circumstances—

namely, threats and violence inflicted on his brother and nephew in Guatemala—

materially affected his asylum eligibility, the agency correctly noted that the

alleged changed circumstances occurred over four years before Petitioner filed his

asylum application. Substantial evidence supports the agency’s determination that

Petitioner’s application was not filed within a reasonable period after his alleged

changed circumstances. See Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir.

2008) (upholding agency determination that delay of 364 days to file application

2 22-1963 was unreasonable); Dhital v. Mukasey, 532 F.3d 1044, 1050 (9th Cir. 2008)

(upholding agency determination that delay of 22 months to file asylum application

was unreasonable).

2. We uphold the agency’s denial of Petitioner’s application for

withholding of removal. Petitioner failed to challenge the IJ’s dispositive finding

that his proposed social group—“Guatemalan witnesses of attacks committed by

gang members”— was not socially distinct in his appeal before the BIA. His claim

is thus forfeited. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir.

2023); Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004). Even if we considered

the merits of this claim, substantial evidence supports the agency’s determination

that Petitioner’s proposed social group is not recognized as socially distinct in

Guatemala. See Conde Quevedo v. Barr, 947 F.3d 1238, 1240, 1243 (9th Cir.

2020) (upholding agency conclusion that Guatemalan society does not recognize

“people who report the criminal activity of gangs to police” as a distinct social

group); Villegas Sanchez v. Garland, 990 F.3d 1173, 1183 (9th Cir. 2021) (a

failure to satisfy the social distinction requirement is dispositive of a claim for

withholding of removal).

3. Substantial evidence supports the agency’s conclusion that Petitioner

did not establish an objectively reasonable fear of future persecution. While

Petitioner fears that the same gang members who robbed him and sent him an

3 22-1963 extortion letter will target him upon his return, he failed to present evidence that

any gang members would recognize him or intend to inflict harm based on

incidents that occurred more than ten years ago. He also failed to present evidence

that the gang members who attacked his brother in 2007 or 2008 have otherwise

attempted to pursue him over the past fifteen years. Evidence he submitted that

criminal gangs commit systemic acts of violence throughout Guatemala is

insufficient to establish that he, personally, faces a clear probability of future

persecution upon return. See Kotasz v. I.N.S., 31 F.3d 847, 852 (9th Cir. 1994).

4. Substantial evidence supports the BIA’s conclusion that Petitioner

does not face a likelihood of torture by or with the acquiescence of government

officials. See B.R. v. Garland, 26 F.4th 827, 844 (9th Cir. 2022). He has never

been tortured in Guatemala, and country conditions evidence of systemic gang

violence does not amount to a particularized risk that he will personally be targeted

for torture in the future. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th

Cir. 2010) (per curiam) (generalized evidence of violence and crime is insufficient

to justify CAT protection).

PETITION DENIED.

4 22-1963