NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 15-2661

______________

MEREGILDO TISTA-RUIZ

a/k/a Meregildo Ruiz,

Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

Respondent

______________

On Petition for Review of a Decision

and Order of the Board of Immigration Appeals

(BIA No. A205-009-553)

Immigration Judge: Steven A. Morley 

______________

Submitted under Third Circuit LAR 34.1(a)

December 11, 2017

BEFORE: RESTREPO, GREENBERG, and FISHER, Circuit Judges

(Filed: March 16, 2018)

______________

OPINION*

______________

 

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

GREENBERG, Circuit Judge.

I. INTRODUCTION

Meregildo Tista-Ruiz petitions for review of a decision and order of the Board of 

Immigration Appeals (“BIA”) entered June 12, 2015, affirming an Immigration Judge’s 

(“IJ”) order denying his application for asylum, withholding of removal, and protection 

under the Convention Against Torture (“CAT”). For the following reasons, we will deny 

the petition.

II. BACKGROUND

Tista-Ruiz, a native and citizen of Guatemala, entered the United States in 2007 

without being properly admitted. In 2011, the Department of Homeland Security charged 

him with being removable under 8 U.S.C. § 1182(a)(6)(A)(i) because he was not lawfully 

in this country. In the ensuing proceedings, Tista-Ruiz conceded removability but the 

following year he applied for asylum, withholding of removal, and protection under the 

CAT. 

In his application, Tista-Ruiz claimed that he had been persecuted in Guatemala 

because of his religion and his membership in a protected social group. He claimed, in 

particular, that the Mara 18 gang targeted him in Guatemala because he is a Christian and 

belongs to a social group of people who resist Mara 18 gang recruitment. He asserted 

that he had been attacked by gang members on two occasions, first in 2003 and again in 

2007, and that they continued to threaten him after he left Guatemala. He admitted, 

however, that he filed his application outside the one-year statutory deadline for an alien 
3

to seek asylum after entry into this country under 8 U.S.C. § 1158(a)(2)(B). He, 

however, sought an exception from the deadline based on extraordinary circumstances as 

authorized by § 1158(a)(2)(D).

At a hearing before the IJ, Tista-Ruiz testified about the 2003 and 2007 attacks. 

He testified that in 2003, gang members confronted him at a local market and asked if he 

wanted to join their gang. He declined, telling them he was Christian and the gang’s 

activities were against his beliefs. He testified that the gang members beat him, cut his 

hand with a knife, and took his money, and that during the attack, the gang members

asked why “a son of God” could not defend himself. Moreover, they laughed at him

because he identified himself as a Christian. AR 204. He also testified that he did not 

seek medical attention for the cuts and bruises he received in the 2003 attack because he 

could not afford the treatment. He explained that he did not notify the police of the attack 

because he feared that the gang would retaliate against him if he did so. It is significant

that, following the 2003 attack, notwithstanding his injuries, he was able to walk three 

hours back to his house. 

After testifying about the 2003 attack, Tista-Ruiz testified about the 2007 attack 

and its purported connection to his religion and refusal to join the gang. In testimony that 

echoed a 2013 affidavit, he testified that Mara 18 gang members attacked and robbed him 

at the same market at which they had attacked him in 2003, and attacked him again at his 

house later that day. On cross examination, however, the government confronted TistaRuiz with an earlier affidavit that he submitted in 2012 when he first filed his asylum 

application. In the earlier affidavit, Tista-Ruiz explained the 2007 attack differently than 
4

he described it at the hearing. He stated in the affidavit that he got into “a huge 

argument” with his wife after learning she was cheating on him with a member of the 

Mara 18, he went to the market “to cool down” and was beaten and robbed by members 

of the gang, and back at home he encountered more gang members including his wife’s 

lover. AR 445-46. There, he claimed, a gang member said, “so this is the big Christian 

man who wouldn’t join our gang because he wants to yell and scream at women.” AR 

446. On cross examination, Tista-Ruiz admitted to the affair, the presence of his wife’s 

lover, and the gang member’s statement to him at his house. 

Tista-Ruiz testified that following the 2007 attack he again did not seek medical 

attention. He did, however, report the attack to the police who told him to pay 250 

quetzals to arrange a meeting with them, but he claims they never investigated the claim 

after he made the payment. Later in 2007, he left Guatemala and entered the United 

States illegally. After he left Guatemala until sometime in 2011, he sent money to his 

wife in Guatemala who had custody of their children. Tista-Ruiz testified that, in 2011

while he was in this country, someone called identifying himself as a “friend” and told

Tista-Ruiz that he owed money to the so-called friend and threatened that “we’ll be here 

when you get back to . . . the country.” AR 229-32.

Tista-Ruiz also submitted affidavits from several family members in Guatemala. 

In one letter, Tista-Ruiz’s uncle stated that the Mara 18 beat Tista-Ruiz so badly during 

the 2007 attack that he “nearly lost his life.” AR 381. Other family members stated that 

Mara 18 gang members called or personally confronted them asking where Tista-Ruiz 

was and stated that they were waiting for him. 
5

Finally, in support of his claim that extraordinary circumstances prevented him 

from filing his asylum application within the one-year period following his entry into this 

country, Tista-Ruiz submitted a psychiatric evaluation report prepared in 2012. The 

report stated that he was diagnosed with a major depressive disorder and PTSD, 

attributable in part to the attacks. He still receives treatment for those conditions as well 

as for Panic Disorder and Attention Deficit/Hyperactivity Disorder. 

In July 2014, the IJ denied Tista-Ruiz’s application. The IJ determined first that 

Tista-Ruiz was only partially credible. After reviewing Tista-Ruiz’s testimony and 

corroborative evidence, the IJ determined that Tista-Ruiz’s claim that he was a Christian 

and was attacked in 2003 and 2007 was credible, but the IJ found that Tista-Ruiz’s claim 

that he was attacked because of his religion or refusal to join the gang was not credible. 

Thus, the asylum and withholding of removal claims failed. 

The IJ also issued alternative findings. As to asylum, the IJ found that Tista-Ruiz 

did not show extraordinary circumstances to excuse his untimely application. Tista-Ruiz 

claimed that he did not know asylum was available, he did not trust the government, and 

his PTSD prevented him filing the application. The IJ rejected these claims for relief.

The IJ found that Tista-Ruiz’s claim for relief based on his PTSD was not credible 

because the condition described in the psychological evaluation report was not as severe 

as Tista-Ruiz claimed in the hearing, and that Tista-Ruiz admitted that he held a job 

during his first year in this country. 

The IJ then found that Tista-Ruiz did not demonstrate a right to withholding of 

removal. The IJ found that his claimed social group was not a cognizable protected 
6

group; that although Christianity is a protected religious group, Tista-Ruiz did not show

the Mara 18 targeted him because of his faith; and he did not demonstrate that he was at 

risk of future persecution. 

Finally, the IJ found that Tista-Ruiz was not eligible for protection under the CAT 

because he did not show it was more likely than not that the Guatemalan government 

would acquiesce to him being tortured. 

Tista-Ruiz appealed but the BIA adopted and affirmed the IJ’s decision. TistaRuiz then filed his petition for review with this Court. 

III. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and (b)(9) and we have 

jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA adopts the IJ’s findings 

and discusses some but not all of the underlying bases for the IJ’s decision, we review 

both decisions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We will uphold 

factual findings if they are supported by substantial evidence. Id. at 243. 

IV. DISCUSSION

Tista-Ruiz raises three challenges to the administrative decisions in his petition. 

First, he challenges the IJ’s finding that extraordinary circumstances did not excuse his

late filing of his application for asylum. Second, he challenges the IJ’s credibility 

findings insofar as they relate to the 2003 and 2007 attacks. Third, he claims that he 

demonstrated a right to withholding of removal and relief under CAT. We conclude, 
7

however, that none of these arguments has merit. Furthermore, we lack jurisdiction to 

review the denial of his asylum claim, the IJ’s adverse credibility findings were supported 

by substantial evidence, and Tista-Ruiz has not demonstrated a right to relief under CAT.

A. Asylum

There is a one-year deadline after an alien enters this country for him to file an 

application for asylum, but his failure to file an asylum application during that period

may be excused if the alien 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.” Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir. 2007) (quoting 8 U.S.C. 

§ 1158(a)(2)(D)). But our authority to review the executive’s determinations under § 

1158(a)(2)(D) is limited as we have jurisdiction to review § 1158(a)(2)(D) determinations 

only if the petition for review raises constitutional claims or questions of law. 8 U.S.C. § 

1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir. 2006).

Tista-Ruiz argues that evidence in the record demonstrates that there were 

extraordinary circumstances under § 1158(a)(2)(D). In particular he claims that the

psychiatric evaluation report of a PTSD diagnosis and his distrust of the government 

demonstrate extraordinary circumstances justifying extension of the one-year term for 

seeking asylum. But his arguments raise questions of fact, rather than constitutional 

claims or questions of law, so we lack jurisdiction to review the claims. However, 

because the one-year deadline for an asylum application after an alien enters the country

does not apply to claims for withholding of removal or CAT claims, Abulashvili v. Att’y 
8

Gen., 663 F.3d 197, 202 n.6 (3d Cir. 2011), we do have jurisdiction to review those 

claims to which we now turn.

B. Withholding of Removal and the Adverse Credibility Finding 

Before reaching the merits of Tista-Ruiz’s withholding of removal claim, the IJ 

made a threshold determination that Tista-Ruiz was not credible. In particular, the IJ 

found Tista-Ruiz was not credible in describing the 2007 attack, the connection between 

the 2003 and 2007 attacks and a protected ground, or the extent of his injuries. On 

appeal, the BIA agreed. For the reasons stated below, we will uphold the findings of the 

IJ and BIA.

We review the IJ and BIA’s factual findings, including adverse credibility 

determinations, under the “substantial evidence” standard. Abdulrahman v. Ashcroft,

330 F.3d 587, 597 (3d Cir. 2003). We uphold findings of fact that are “supported by 

reasonable, substantial, and probative evidence on the record considered as a whole.” 

INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815 (1992). We will uphold 

adverse credibility determinations unless “any reasonable adjudicator would be 

compelled to conclude to the contrary. . . .” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 

(3d Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)).

We conclude that there was substantial evidence supporting the IJ’s adverse 

credibility findings. First, as noted by the IJ and BIA, Tista-Ruiz’s omissions and 

inconsistent testimony concerning his wife’s affair and its connection to the 2007 attack 

supports the adverse credibility finding. Tista-Ruiz’s testimony and 2013 affidavit 

portray the 2007 attack as a continuation of prior incidents in which the Mara 18 
9

allegedly targeted him because of his religion and refusal to join the gang. He also 

testified that he learned about his wife’s affair when he arrived in the United States. That 

portrayal belies the version of events described in the 2012 affidavit, which casts the 

2007 attack as a personal dispute between the gang members and Tista-Ruiz. It strongly 

suggests that the attack arose from his wife’s affair with a gang member and the gang’s 

allegation that Tista-Ruiz mistreated her during an argument earlier that day. Moreover, 

we have recognized that “retaliation in response to a personal dispute” does not present a 

sufficient nexus between persecution and a protected ground. Amanfi v. Ashcroft, 328 

F.3d 719, 727 (3d Cir. 2003). Consequently, the IJ correctly found that the omitted 

information went to a central aspect of Tista-Ruiz’s claims because it concealed a version 

of the attack that would not entitle him to relief. The IJ and BIA’s finding that he did not 

testify credibly about his wife’s affair and the 2007 attack was thus supported by 

substantial evidence.

Tista-Ruiz’s counterarguments are unpersuasive. He asserts that his testimony and 

the 2013 affidavit sought merely to supplement the statements in the 2012 affidavit so 

there was no need to include the affair. He also admits to discovering his wife’s 

infidelity on the morning of the attack, but asserts that he did not believe it until he 

learned more about it after he entered the United States. Neither explanation is 

persuasive. The affair and related statements are some of the only pieces of information 

omitted from the second affidavit and testimony. For example, in one of the more glaring 

omissions, the 2012 affidavit reads, “The man approached me and said, ‘Oh so this is the 

big Christian man who wouldn’t join our gang because he wants to yell and scream at 
10

women.’ The five other men started laughing and cursing at me. . . .” AR 446. On the 

other hand the 2013 affidavit stated, “The man approached me and said, ‘Oh so this is the 

big Christian man who wouldn’t join our gang because, [sic] the five other men started 

laughing and cursing at me. . . .” AR 314. And in his direct testimony, Tista-Ruiz made 

no mention of the affair and stated that he went to the market to “pick up [his] children,” 

AR 206, whereas the 2012 affidavit said he went there to “cool down” after the “huge 

argument . . . because [he] could not believe that [his] wife would betray [him] like that,”

AR 445. The damaging nature of the omitted facts, and the selective removal of them 

from later submissions, supports the BIA and IJ’s finding that the information was 

omitted in an effort to boost his claim.

Similar reasons undermine his second assertion that he credibly testified that the 

Mara 18 targeted him in 2003 and 2007 based on a protected ground. The IJ found that it 

was at best “unclear” why the Mara 18 first targeted him in 2003, and that he provided no 

credible evidence that his later encounters with the Mara 18 were motivated by his 

religion or refusal to join the gang. The evidence fairly supports those findings. As to 

the 2003 attack, the IJ found that the Mara 18 are notorious for assault and robbery; they 

approached him in the market; asked him personal questions including how much money 

he made; attacked him; took his money; and they typically recruit teenagers and children 

whereas Tista-Ruiz was 23 at the time. Based on this sequence, the IJ could correctly 

find that it is at least uncertain if the Mara 18 targeted him that day for any other reason 
11

besides a random robbery.1 The IJ also found, as mentioned above, that the attack in 

2007 was likely motivated by a personal dispute, not a protected ground. Lastly, the IJ 

found that although gang members continued to contact his family asking for money, 

their interest in him likely stemmed from the fact that he continued to send money to his 

wife, who was involved with the Mara 18 gang member, until 2011 and not because they 

were motivated by his religion or refusal to join. 

Tista-Ruiz challenges only one of these findings that undercut his credibility; i.e., 

the finding that he was too old to be recruited. He argues that he looks young and that the 

Mara 18 recruit men of all ages, though he cites no authority for the latter proposition. 

Even taking those facts as true, we still would not be compelled to find that Tista-Ruiz 

credibly established targeting based on a protected characteristic given the bulk of other 

factual findings, which Tista-Ruiz does not challenge, that undermine his claim. 

Finally, substantial evidence supports the finding that Tista-Ruiz overstated his 

injuries. The IJ noted inconsistencies that undercut Tista-Ruiz’s claim that he was 

severely injured. In his application, Tista-Ruiz claimed that he was “violently” and 

“severely” beaten, and almost “beaten to death.” AR 423, 426. His uncle’s affidavit 

stated that Tista-Ruiz “nearly lost his life” from the 2007 attack. AR 381. But Tista-Ruiz 

later testified that he suffered only cuts and bruises (a bloody nose and mouth, bruises, 

 

1 Tista-Ruiz did testify that the gang members mentioned his religion when they attacked 

him. But when weighed against the evidence suggesting the attacks were either 

commonplace robberies or motivated by a personal dispute, that fact does not compel the 

conclusion that the gang members attacked him on account of his religion. See

Ndayshimiye v. Att’y Gen., 557 F.3d 124, 132-33 (3d Cir. 2009).
12

and a cut on his hands), he did not go to the hospital, and was able to walk three hours 

home after both attacks, and he provided no evidence of lingering injuries or broken 

bones. Taking these facts together, the IJ’s conclusion that Tista-Ruiz suffered only 

minor injuries and embellished the severity of the harm was supported by substantial 

evidence. 

In sum, we will not disturb the IJ and BIA’s adverse credibility findings that 

supported the denial of Tista-Ruiz’s withholding of removal claim because those findings 

were supported by substantial evidence in the record.2

C. CAT Claim

Finally, the IJ found that the CAT claim did not automatically fail just because the 

withholding of removal claim was not credible. AR 138 (citing Zubeda v. Ashcroft, 333 

F.3d 463, 476 (3d Cir. 2003)). The IJ instead found, and the BIA agreed, that Tista-Ruiz 

failed to establish government acquiescence. We find no error with the IJ and BIA’s 

determination that Tista-Ruiz did not show government acquiescence. 

To qualify for relief under CAT, petitioners must establish that it is more likely 

than not that they would be tortured “with the consent or acquiescence of a public official 

or other person acting in an official capacity” if removed. 8 C.F.R. § 1208.18(a)(1). 

Acquiescence means a government official participates in or “turn[s] a blind eye to 

certain groups’ torturous conduct. . . .” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d 

 

2 The government also argues that the withholding of removal claim fails for another 

reason. It asserts that Tista-Ruiz waived any challenge to the IJ’s holding that the gangs 

were not motivated by his religion and that his proposed particular social group was not 

cognizable. Because we find that the withholding of removal claim fails on credibility 

grounds, we do not reach the government’s waiver argument.
13

Cir. 2007), as amended (Mar. 6, 2007). Unlike asylum and withholding of removal, CAT 

claims do not require a showing of torture on account of a protected ground. Lukwago v. 

Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003). 

The IJ found, and the BIA agreed, that Tista-Ruiz did not show government 

acquiescence. While he did show evidence of general police corruption in Guatemala, 

the IJ and BIA found that he did not show a probability that Guatemalan officials would 

acquiesce if Mara 18 members target him. In his petition, Tista-Ruiz contends that he 

showed acquiescence for two reasons. First, he argues that his past experience supports a 

finding that acquiescence will happen again. He notes in particular that he had to pay the 

police to investigate his 2007 beating but they did not do so. But even if we assume that 

his testimony on this point was credible, he has not shown that the police did not do 

anything to investigate the matter. After all, Tista-Ruiz testified that he left town the 

same day that he reported the incident to the police, AR 227, so he was not there to verify 

if they actually investigated. And he testified that he believes they did not investigate 

because “everyone . . . pretty much finds out” when they do. AR 228. Such speculative 

testimony does not establish that the police did not take steps to help him before he left.

Second, Tista-Ruiz argues that police acquiescence to Mara 18 violence is 

“prevalent” in Guatemala. Tista-Ruiz Br. 25. This argument also fails. While Tista-Ruiz 

has provided generalized evidence that Guatemalan officials struggle to control the 

country’s gang problem, and that gang bribery of police does occur, these facts do not

support a conclusion that the police acquiesced in the attacks on Tista-Ruiz. The IJ and 
14

BIA accordingly did not err in determining that Tista-Ruiz failed to demonstrate that he 

likely would be tortured with the acquiescence of Guatemalan officials. 

V. CONCLUSION

For the foregoing reasons, we will deny Tista-Ruiz’s petition for review of the

BIA decision and order of June 12, 2015, denying his application for asylum, withholding 

of removal, and CAT claims.