UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

NOE MARDOQUEO RODRIGUEZ-LEIVA, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 14-9580 (Petition for Review)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, McKAY and PHILLIPS , Circuit Judges.
Noe Mardoqueo Rodriguez-Leiva, procee ding pro se, petitions for review of a Board of Immigration Appeals (BIA) or der dismissing his appeal from an immigration judge’s (IJ) removal order. Exercising jurisdiction under 8 U.S.C. § 1252(a), we dismiss in part and deny in part the petition for review.

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 22, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Mr. Rodriguez-Leiva is a native and citizen of Guatemala who entered the United States in May 2004 without being admi tted or paroled. The Department of Homeland Security commenced removal pr oceedings against him in 2011. He conceded removability, but applied fo r asylum, withholding of removal, and protection under the Conventio n Against Torture (CAT). Mr. Rodriguez-Leiva testifie d at a hearing before the IJ that he witnessed his friend’s murder in his hometown in Guatem ala in November 2003. He said he did not know the two assailants or why they kille d his friend, but that the men threatened to kill him if he testified against them or attempted to identify them. About two months later, Mr. Rodriguez-Leiva gave a statement about his friend’s murder to government authorities. Soon thereafter, unknown men pursued him to his home and shot at him, and he also received a threat ening letter. Mr. Rodriguez-Leiva testified that his brother was later injured in a shoo ting, and his brother-in -law and uncle were killed. He said that his brothe r-in-law had denied knowledge of Mr. Rodriguez-Leiva’s whereabouts when c onfronted by individuals looking for him, and that his uncle was killed after help ing him leave Guatemala in May 2004. Mr. Rodriguez-Leiva claimed he had been persecuted on account of his membership in a particular social group: those who directly witness murders and are threatened if they report the murders to government authorities.- 3 - The IJ held Mr. Rodriguez-Leiva’s asylum applicati on was untimely and declined to apply an exception to th e one-year deadline b ecause there was no evidence of changed or extraordinary circ umstances preventing a timely filing. Regarding withholding of re moval, the IJ found that Mr. Rodriguez-Leiva was credible and that the attempt to kill him and the shooti ngs of his relatives qualified as persecution. But the IJ denied relief beca use he had not shown that these incidents were perpetrated on account of a protected ground as defined in the applicable statute. Thus, the IJ conc luded that Mr. Rodriguez-Le iva failed to demonstrate a nexus between his membership in a cognizable social group and past persecution or a clear probability of future persecution if he returned to Guatemal a. Regarding relief under the CAT, the IJ found that Mr. R odriguez-Leiva had not been previously tortured in Guatemala, nor did he have an objectively reasonabl e fear of future

torture. The BIA agreed with the IJ’s reas oning on all issues and dismissed Mr. Rodriguez-Leiva’s appeal. In his petiti on for review, he asserts that (1) his delay in filing his asylum application was reas onable under the circumstances; (2) the BIA erred in holding that he failed to establish past persecuti on or a well-founded fear of future persecution on account of his membersh ip in a particular social group; and (3) the BIA erred in denying his claim for relief under the CAT.- 4 - II. Discussion The BIA’s brief order by a single panel me mber constitutes the final order of removal subject to our review. See Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). But where, as here, the BIA adopts the IJ’s rationale , “we are not precluded from consulting the IJ’s more complete explanation of those same grounds.” Id. The BIA’s factual findings “ar e conclusive unless the record demonstrates that any reasona ble adjudicator would be comp elled to conclude to the contrary.” Rivera-Barrientos v. Holder , 666 F.3d 641, 645 (10th Cir. 2012) (internal quotation mark omitted). “We review the BIA’s legal conclusions de novo.” Id. We construe Mr. Rodriguez-Leiva’s pro se arguments liberally. See United States v.
Pinson , 584 F.3d 972, 975 (10th Cir. 2009). A. Denial of Asylum The IJ held that Mr. Rodriguez-Leiva’ s asylum application was untimely. Under 8 U.S.C. § 1158(a)(2)(B), an alien must present clear and convincing evidence that his asylum application was filed within one year after the date of his arrival in the United States. But a late application may be considered if the alien demonstrates “extraordinary circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D). Mr. Rodriguez-Leiva cont ends the BIA erred in holding that he failed to show extraordinar y circumstances based on his claim that his application was late because he was not previously awar e that he could apply for asylum. Under 8 U.S.C. § 1158(a)(3), we are precluded fr om reviewing the BIA’s determination.- 5 - See Ferry v. Gonzales , 457 F.3d 1117, 1129-30 (10t h Cir. 2006) (holding argument that extraordinary circumst ances excuse an untimely asylum application “is a challenge to an exercise of discretion that remains outside our scope of review”). We therefore dismiss the petition for review for lack of ju risdiction to the extent Mr. Rodriguez-Leiva challenges the BIA’s hol ding that his asylum application was untimely. B. Denial of Withholding of Removal Regarding his application for withholdi ng of removal, Mr. Rodriguez-Leiva argues the BIA erred in holding he failed to demonstrate past persecution or a clear probability of future persecution based on a statutorily protected ground. To be eligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), “an applicant must demonstrate that there is a clear probability of pers ecution because of his race, religion, nationality, membership in a partic ular social group, or political opinion.” Zhi Wei Pang v. Holder , 665 F.3d 1226, 1233 (10th Ci r. 2012) (internal quotation marks omitted). “For persecution to be on account of a statutorily protected ground, the victim’s protected characte ristic must be central to the persecutor’s decision to act against the victim.” Rivera-Barrientos , 666 F.3d at 646 (internal quotation marks and brackets omitted). The BIA held that Mr. Rodriguez-Leiv a’s proposed soci al group—those who directly witness a murder and are threatened if they repor t the murder to government authorities—is not a legally cognizable “par ticular social group.” The BIA relied on- 6 - its decision in Matter of C-A- , 23 I. & N. Dec. 951 (BIA 2006), which held that a group composed of “noncriminal inform ants” did not meet the particularity requirement, id. at 957, and a narrower group defined as “noncriminal drug informants working against th e Cali drug cartel” also did not constitute a particular social group due, in part, to the propos ed group’s lack of social visibility, id. at 961. Mr. Rodriguez-Leiva argues (without citing a ny cases) that other ci rcuit courts have criticized Matter of C-A- . But we held in Rivera-Barrientos that Matter of C-Areasonably interpreted the app licable statute as requiring bot h particularity and social visibility. See 666 F.3d at 644, 649, 652; see also Rodas-Orellana v. Holder , 780 F.3d 982, 990-91 (10th Ci r. 2015) (noting the BIA now refers to the “social visibility” requirement as “soc ial distinction,” but the test we apply has not changed). “[T]he ‘particular social group’ anal ysis is necessarily contextual.”
Rivera-Barrientos , 666 F.3d at 648. Mr. Rodriguez-Le iva has not established that his proposed social group is “visible” or “d istinct” by pointing to evidence suggesting that Guatemalan society c onsiders witnesses who are th reatened after reporting a murder to government authorities to be a distinct social group. See id. at 653 (holding proposed social group of “young women w ho have resisted gang recruitment” lacked su fficient social visibility to constitute a particular social group). Moreover, Mr. Rodriguez-Leiva has not s hown he was persecuted on account of his social status. Rather, the evidence indicates he was targ eted by criminals because he posed a threat to their intere st in avoiding prosecution. See id. (quoting Matter of- 7 - C-A- , 23 I. & N. Dec. at 958-59, for proposition that person “singled out for reprisal” based on “his role in disrup ting particular criminal activ ity” was not “targeted as a member of a particular social group”). Because Mr. Rodriguez- Leiva fails to show the BIA erred in denying his application for withholding of removal, we deny his petition for review of that issue. C. Denial of Protection Under the CAT Finally, Mr. Rodriguez-Leiva challenges the BIA’s denial of protection under the CAT, for which he was required to “estab lish that it is more li kely than not that he . . . would be tortured if removed to the proposed country of removal.” Zhi Wei Pang , 665 F.3d at 1233-34 (inter nal quotation marks omitted). He claims that he has evidence the police will be unabl e to protect him if he is removed to Guatemala, but he fails to point to any ev idence of past torture or ot her evidence demonstrating a likelihood of future torture. We therefore deny his petition for revi ew of this issue. III. Conclusion The petition for review is dismissed in part for lack of jurisdiction and otherwise denied.

Entered for the Court
Mary Beck Briscoe Chief Judge