NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR ARMANDO BERGANZA 

LINARES, AKA Joe Aguilar, AKA Hector 

Linares, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 18-71558 

Agency No. A094-203-154 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 18, 2020**

Pasadena, California

Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.

Hector Armando Berganza Linares, a native and citizen of El Salvador, 

petitions for review of the Board of Immigration Appeals’ denial of his application 

for asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C. 

* 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

NOV 23 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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§ 1252. We dismiss the petition in part, and deny it in part.

1. An application for asylum must be filed within one year of the 

applicant’s arrival in the United States, unless the applicant “demonstrates to the 

satisfaction of the Attorney General either the existence of changed circumstances 

which materially affect the applicant’s eligibility for asylum or extraordinary 

circumstances relating to the delay in filing an application.” 8 U.S.C. 

§ 1158(a)(2)(B), (D). While the court generally retains jurisdiction over colorable 

legal or constitutional claims, id. § 1252(a)(2)(D), it lacks jurisdiction to review the 

BIA’s factual determination regarding the existence of such circumstances. See id.

§ 1158(a)(3). Linares acknowledges that his application was not timely, but 

contends that threats allegedly made to Linares’s uncle in El Salvador shortly 

before Linares filed his application constituted changed circumstances that 

materially affected his eligibility for asylum. See 8 U.S.C. § 1158(a)(2)(D). The 

BIA rejected Linares’s argument and upheld the finding of the immigration judge 

(“IJ”) that Linares had not presented adequate evidence that these threats had 

actually occurred, or explained how they were connected to Linares in a way that 

would justify his untimely filing. Linares disputes the BIA’s findings, but fails to 

raise a colorable legal or constitutional claim on this point. The court thus lacks 

jurisdiction to decide this issue, and this portion of Linares’s petition is dismissed. 

8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
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2. Linares next argues that the BIA’s adverse credibility determination 

was not supported by substantial evidence, claiming that the inconsistencies in his 

written and oral testimony identified by the IJ were immaterial. Credibility is 

assessed by “[c]onsidering the totality of the circumstances, and all relevant 

factors,” including “the consistency between the applicant’s or witness’s written 

and oral statements.” 8 U.S.C. § 1158(b)(1)(B)(iii). Adverse credibility 

determinations are reviewed for substantial evidence, and the BIA’s findings “are 

conclusive unless any reasonable adjudicator would be compelled to conclude to 

the contrary.” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020) (internal 

quotations omitted) (quoting Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 

2016)). Here, the IJ’s findings are supported by substantial evidence in the record, 

including: (1) inconsistencies between Linares’s written application and his 

testimony at his immigration hearing; (2) Linares’s evasive explanations for those 

inconsistencies; and (3) Linares’s failure to disclose key evidence supporting his 

claims prior to the hearing. Linares has not shown that the BIA’s adverse 

credibility determination is not supported by substantial evidence, and his petition 

on this point is denied.

3. Linares also challenges the BIA’s finding that the threats against him 

and his uncle did not rise to the level of past persecution, creating a presumption of 

a future threat of persecution for purposes of establishing his entitlement to 
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withholding of removal. 8 C.F.R. § 1208.16(b)(1)(i). But Linares’s argument is 

supported only by his own testimony, which the BIA reasonably found to lack 

credibility. 

Even assuming Linares’s testimony to be credible, however, this argument 

still fails. The BIA’s finding is reviewed for substantial evidence. DuranRodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). “[C]redible death threats 

alone can constitute persecution,” but they do so “in only a small category of cases, 

and only when the threats are so menacing as to cause significant actual suffering 

or harm.” Id. (internal quotations omitted) (quoting Lim v INS, 224 F.3d 929, 936 

(9th Cir. 2000)). Although Linares asserts that the threats caused him to 

immediately leave El Salvador, there is no suggestion that Linares or his uncle 

were ever actually harmed or that the threats continued to escalate. Neither 

Linares nor his uncle ever attempted to contact the police for assistance dealing 

with the situation. Moreover, Linares did not submit any evidence from his uncle 

or any other witness corroborating the threats. Linares has not shown that 

substantial evidence does not support the BIA’s finding that these incidents did not 

rise to the level of past persecution. 

4. Finally, Linares argues the BIA erred in finding that he did not 

establish past persecution on account of a cognizable particular social group, and in 

finding that he did not establish future harm on account of membership in that 
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group, which he defines as family members of landowners in El Salvador. 8 

C.F.R. § 1208.16(b)(2). “Whether a group constitutes a particular social group is a 

question of law.” Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (internal 

quotations omitted) (quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 

2014)). To obtain relief based on membership in a particular social group, the 

petitioner “must establish that the group is (1) composed of members who share a 

common immutable characteristic, (2) defined with particularity, and (3) socially 

distinct within the society in question.” Id. (quoting Matter of M-E-V-G-, 26 I. & 

N. Dec. 227, 237 (BIA 2014)) (footnote omitted). But Linares presented no 

evidence that members of his asserted social group are perceived by the general 

population to be a distinct class. See id. Thus, his proposed group fails as a matter 

of law. 

Further, even if Linares was a member of a cognizable social group, the BIA 

determined that he had not established a nexus between the threats he received and 

his membership in that group. This determination is reviewed for substantial 

evidence. Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018). Linares’s own 

testimony supports the conclusion that Linares was targeted because of his 

intervention into a robbery investigation, and not because he happened to be 

related to his landowner uncle. The BIA did not err in determining that Linares 

had failed to establish a likelihood of persecution were he to return to El Salvador.
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The petition for review is DISMISSED in part and DENIED in part.