NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 , Res pondent

______________ On Petition for Review of a Decision and Order of the Board of Immigration Appeals

(BIA No. A20 5

- 009

- 553 ) Immigration Judge: Steven A

. Morley

______________ Submitted under Third Circuit LAR 34.1(a)

December 11, 2017
BEF ORE: RESTREPO , GREENBERG, and FISHER , Circuit Judges

(Filed: March 16, 2018 )

______________ OPINION *

______________

* This disposition is not an opinion of the full c ourt and pursuant to I.O.P. 5.7 does not constitute bindi ng precedent.2

GREENBERG, Circuit Judge

. I. I NTRODUCTION 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 applica tion 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, en tered 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) bec ause 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. H e 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 re sist Mara 18 gang recruitment. He asserted that he had been attacked by gang members on t wo occasions, first in 2003 and again in 2007, and that t he y continued to threat en him after he left Guatemala. He admitted , however, that he filed his application outside the one

- year statutory deadline for an alien3

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 e xtraordinary circumstances as authorized by § 1158(a)(2)(D). At a hearing b efore the IJ, Tista

- Ruiz testified about the 2003 and 2007 attacks. He testified that in 2003 , gan g 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 t he gang members beat him, cut his hand with a knife, a nd took his money , and that d uring the attack, the gang members asked why “a son o f 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 attenti on for t h e 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 t he gang would reta liate against him if he did so. It is s ignificant that , following the 2003 attack , notwithstanding his injuries , he was able to walk three h ours back to his house. After testifying about the 2003 attack, Tista

- Ruiz testified about the 2007 attack and its purported connection to his religi on and refusa l 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 examinat ion, however, the g overnment confronted Tista

Ruiz 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 than4

he described it at the heari ng . 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 stateme nt 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 t he 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 identif ying 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 Gu atemala. 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 su pport of his claim that extrao rdinary 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 sta ted that he was diagnosed with a major depressive d isorder and PTSD , attributable in part to the attacks . He still receives treatment for those condition s as well as for Panic Disorder and Attention Deficit/ Hyperactivity Disorder. In July 2014, the IJ deni ed 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 200 3 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 findin gs. As to asylum, the IJ found that Tista

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

- Ruiz claimed that he did not know asylum was available, he did not trust the government, and his PTSD prevented him filing t he 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 th is country. The IJ then found that Tista

- Ruiz did not demonstrate a right to withholding of removal. T he IJ found that his claimed social group was not a cogni zable protected6

group ; that a lthough 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 acquies c e to him being torture d

. T ista

- Ruiz appealed but t he BIA adopted and affirmed the IJ’s decision

. T ista

Ruiz t hen 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 w e have jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA adopt s 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

. I d. 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 . Secon d, 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 CA T. We conclude,7

however, that n one of these arguments has merit . Furthermore, we lack jurisdiction to review the denial of his asylum claim , the IJ’s adverse credibility findings were su pported by substantial evidence , and Tista

- Ruiz has not demonstrated a right to relief under CAT.
A. Asylum The re is a one - year de adline 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) (quoti ng 8 U.S.C. § 1158(a)(2 )(D)). But o ur 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). I n particular he claims that the psychiatric evaluatio n 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 h is arguments raise questions of fact, rather than constitutional claims or questions of law, so we lack jurisdiction to review the claims . However, b ecause 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’ y8

Gen. , 663 F.3 d 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 c laim, the IJ made a thr eshold 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
appea l, t he 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 uphol d 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 substan tial evidence support ing 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 findin g. Tista

- Ruiz’s testimony and 2013 affidavit portray the 2007 attack as a continuation of prior incidents in which the Mara 189

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 cast s the 2007 attack as a personal dispute between the gang members and Tista

- Ruiz. It strongly suggests that the attack aro se from his wife’s affair with a gang member and the gang’s allegation that Tista

- Ruiz mistreat ed her during an argument earlier that day. Moreover, we have recognized that “retaliation in response to a personal dispute” does not present a sufficient nexu s 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 at tack 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 h is 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, i n one of the more glaring omissions, the 2012 affidavit read s , “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 at10

women.’ The five other men sta rted 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] wif e 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 hi s 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 as sault and robbery; they approached him in the market; asked him personal questions i ncluding 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 seque nce, the IJ could correctly f i nd that it is at least uncertain if the Mara 18 targeted him that day for any other reason11

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 continue d to contact his family asking for money, their interest in him likely stem med from the fact that he continued to send money to his wife, who was involved with the Mara 18 gan g 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 loo ks young and that the Mara 18 recruit men of all ages, though he cites no authority for th e 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 ch aracteristic 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 th e 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 att acked 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 Nday shimiye 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 provi ded no evidence of lin gering 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 dist urb the IJ and BIA’s adverse credibility finding s 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 d id 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 acqui escence. 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 rem oved. 8 C.F.R. § 1208.18(a)(1)

. Acquiescence means a government official participates in or “turn[s] a blind eye to
cert ain groups’ torturous conduct. . . . ” Si lva

- Rengifo v. Att ’ y Gen. , 473 F.3d 58, 70 (3d

2 The g overnment also argues that the withholding of removal claim fail s for another reason. It assert s that Tista

- Ruiz waived any challenge to the IJ ’s holding that the gangs were not motivate d by hi s 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 g overnment’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 Ci r. 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 wo uld 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 i f we assume that his t estimony on this point was credible, he has not shown that the police did not do anyt hing to investigate the matter. After all, Tista

- Ruiz te stified that he left town the same day that he report ed 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 o ut” 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 a cquiesced in the attacks o n Tista

- Ruiz. The IJ and14

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 reason s, 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.