NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BAUDILIO ESTEBAN PABLO 

ANTONIO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 23-236

Agency No.

A213-079-185

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 7, 2024**

Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

Baudilio Esteban Pablo Antonio, a native and citizen of Guatemala, petitions 

for review of a decision by the Board of Immigration Appeals (“BIA”) affirming

the immigration judge’s (“IJ”) denial of his application 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

FEB 9 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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removal, and protection under the Convention Against Torture. Because the BIA

affirmed the IJ’s decision after conducting its own review of the evidence, we 

review the BIA’s decision and any portion of the IJ’s opinion that the BIA 

expressly adopted. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).1 We 

have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 

1. Substantial evidence supports the agency’s denial of Pablo Antonio’s 

asylum application as untimely. And, in any event, he does not make any argument 

to address the dispositive issue of timeliness in his opening brief, that issue is 

forfeited. Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022).

2. Substantial evidence supports the agency’s denial of withholding of 

removal. To qualify for withholding, an applicant must demonstrate past 

persecution or a well-founded fear of future persecution on account of a protected 

ground. 8 C.F.R. § 1208.13(b). When determining whether Pablo Antonio 

demonstrated past persecution, the BIA considered and applied the standards set 

forth in Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021). The BIA did not

fail to consider material factors, as Pablo Antonio asserts. Even considering the 

facts that Pablo Antonio contends the BIA ignored, including the timing and nature 

of the threats he experienced and the country conditions, those facts do not compel 

the conclusion that the harms Pablo Antonio suffered rise to the level of 

1 We refer to the BIA and IJ collectively as the “agency.”
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persecution. Persecution is “an extreme concept that does not include every sort of 

treatment our society regards as offensive.” Rusak v. Holder, 734 F.3d 894, 896 

(9th Cir. 2013) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)). 

Although it is troubling that Pablo Antonio was threatened, robbed, and beaten by 

gang members, he did not provide specific testimony or other evidence showing 

that these incidents were so menacing that they constitute past persecution. See 

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (quoting Lim v. 

INS, 224 F.3d 929, 936 (9th Cir. 2000)).

Substantial evidence also supports the BIA’s determination that Pablo 

Antonio failed to establish that he has a well-founded fear of future persecution.

Pablo Antonio contends that he established a well-founded fear of persecution on 

account of three different bases. We address each basis in turn.

The BIA determined that Pablo Antonio’s reliance on country condition 

reports to establish that he would be targeted on account of his indigenous ethnicity 

was unavailing because those reports showed ongoing discrimination against 

indigenous communities in Guatemala but not persecution. Pablo Antonio asserts 

that the BIA erred in assessing those reports, but he does not develop that 

argument; consequently, it is forfeited. Pablo Antonio also argues that the BIA 

erred in determining that he did not establish a threat of persecution on the basis of 

his ethnicity because it disregarded the statements of his father and a local leader 
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of the Kanjobal tribe. Because those statements discuss only generalized crime in 

Guatemala, the BIA was not required to specifically address them in this context. 

See Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (A “petitioner cannot simply 

prove that there exists a generalized or random possibility of persecution” to 

establish a well-founded fear of future persecution (internal quotation marks 

omitted)).

Substantial evidence also supports the BIA’s dispositive finding that, even 

assuming that Pablo Antonio’s proposed social group of “indigenous tribal 

members who have been targeted by cartels because of their tribal membership” is 

cognizable, the record does not establish that the cartel members did or would 

likely target him on account of his membership in that group. Although Pablo 

Antonio asserts that this proposed social group is cognizable, he does not address 

the BIA’s alternative finding, and therefore, this issue is forfeited. 

The BIA also properly concluded that the proposed social group of 

“returnees from the United States who are perceived as wealthy” is not cognizable. 

See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (“[W]e hold 

that the proposed group of ‘imputed wealthy Americans’ is not a discrete class of 

persons recognized by society as a particular social group.”).

3. Substantial evidence supports the BIA’s determination that the record 

does not establish that Pablo Antonio is more likely than not to be tortured by 
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cartels upon return to Guatemala. Although the country conditions reports that 

Pablo Antonio cites demonstrate that Guatemala is plagued by corruption and 

violence, these reports do “not indicate that [Pablo Antonio] would face any 

particular threat of torture beyond that of which all citizens of [Guatemala] are at 

risk.” Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008). Pablo Antonio 

has therefore failed to meet his burden of proving eligibility for protection under 

CAT.

4. Pablo Antonio asks us to remand this matter to the BIA because his notice 

to appear was allegedly defective under 8 U.S.C.§ 1229(a)(1)(G)(i). Pablo Antonio 

argues that the BIA erred by not remanding his case to the IJ to apply Matter of 

Fernandes, 28 I. & N. Dec. 605 (B.I.A. 2022). However, Matter of Fernandes

requires a remedy only for petitioners who “made a timely objection to [a] 

noncompliant notice to appear,” and such an objection is timely only “if it is raised 

prior to the closing of pleadings before the Immigration Judge.” Id. at 610–11. 

Pablo Antonio made no objection until after the closing of pleadings before the IJ. 

Accordingly, he is not entitled to remand under Matter of Fernandes.

PETITION DENIED.