NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0741n.06 No. 09-4296 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ANTON I O SI CA I

X CO Y , JU L I A I XCOY MEJ I A, and RI GOB ERTA SI CA, Petitioners,

v. ERI C H. HOL DER, J R., United States Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW

OF A FI NAL ORDER OF THE BO ARD OF I MMI GR ATI ON APPEAL S

BEFORE: BOGG S and SILE R, Circ uit Jud ges, and VAN TATENHOVE , District Judge. * VAN TATENHO VE, District Judge

. Petitioners seek asy lum and withholding of remova l under the I mmigra tion and Nationality Act (“I NA”) and the Convention Ag ainst Torture (“CAT” ). They arg ue that extraordinary circ umstances excuse the untimely filin g o f t heir application for asy lum, and they further contend that they will be subj ect t o perse cution and torture if returne d to Guatema la. The immigra tion judge (“I J ”) reje cted the petitioners’ claims, and the Bo ar d of I mmigra tion Appea l s (“BI A”) adopted the I J ’s opinion, supplementing that opinion with its own comments. For

the re asons stated be low, we DENY REVIEW

. I. Petitioners Antonio Sica I x coy , J ulia I x coy Mejia, and Rigob er ta Sica are natives and citizens of Guatema la. Antonio and J ulia are husband and wife, and Rigobe rta is their daug hter. The Honora

ble Gre g ory F. Van Tatenhove , United S t at es Di s trict J udg e for the Easter n * District of Ke ntucky , sitti ng by desig nation.No. 09-4296

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older The three enter ed the United States illega lly in Dec ember of 1999. Antonio and J ulia also have three children who wer e born in the United States, as well as one child who continues to live in Guatema la with J ulia’s fa mily

. T h e petitioners orig inally filed their application for asy lum in 2004. I n April of 2005, h o w e v e r , th e D e partment of Homeland Security initiated remova l proce eding s ag ainst the petition e r s by filing Notices to Appea r (“N TAs”) , char g ing the three with being aliens prese nt in t h e Un i ted States without having be en admitt ed or parole d. At a Master Calendar hear ing he ld in September of 2006, the petitioners, throug h counsel, admitt ed t h e al l eg ations contained in the NTAs. Additionally , they

asked f or re newa l of their cla ims for asy lum, withholdi ng of re moval under the I NA, and protec tion under th e CAT, and, in the alterna tive, for voluntary depar ture. Then, in September of 2007, the petitioners filed a new application for asy lum, cl ai ming perse cution on

acc ount of their rac e, nationality , political opinion, and membership in a particula r social g roup. I n support of their new application, the petitioners filed sever al documents about conditions in Guatema la. I J I skra conducte d a hear ing on the merits of the petitioners’ claims on November 24, 2008. Prior to the hear ing, the I J denied the petitioners’ reque st to allow Sist er Ho n o ra Fe l i x to testify telephonica lly as a lay witness on country conditions in Guatema la. At the hear ing, the I J noted that he was in possession of a letter written by Sist er Fe lix on the subject, and he made that letter a part of the re cord. During the November hear ing, the I J hear d testimony from Mr. Sica I x coy . He testified that when he was a y oung boy his family had to leave their home and live as ref ug ees beca

use his fathe r

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older ref used to join the g uerr illas and fig ht ag ainst the Guatema lan g overnme nt. He further testified that the g uerr illas took his sister and niece to the mountains and threa tened them, though they wer e later rele ased. L ater in his testimony , Mr. Sica I x coy acknow ledg ed that t h e gu er rillas are no longe r active in Guatema la. He stated, howeve r, that “[t] hey ’ve become the g ang s which do the war now.” Acc ording to Mr. Sica I x coy , g angs in Guatema la are ever y wher e, and they hara ss ever y one. He claims that he sends his father m o n ey t o pay off the g ang s who want the title to his proper ty

. He al s o claims that the police are corr upt and g et money under the table if they do nothing. But h e admits that no one in his family has been hurt by the gang s. Simi l arly , Mrs. I x coy Mejia t estified that her family members in Guatema la have not joined the g angs , an d h av e not been phy sically harme d. After the hear ing, the I J issued his de cision. He reje cted the petitioners’ claims for asy lum

on the g round that they had not shown extraordinary circ umstances that would justify the failure to file their application within the one-y ear time limit

. He also reje cted Mr. Sica I x coy ’s claim for withholding of remova l under the I NA, explaining that Mr. Sica I x co y ’s experience s with the g uerr illas did not amount to past perse cution and that Mr. Sica I x coy could not fea r future p er secution beca

use of the 1996 peac e acc ords. The I J further explained that Mr. Sica I x coy ’s testimony did not show that he was targ eted or would be targ eted in the future by g ang s beca use he is a May an. Finally , I J I skra reje cted the claim for protec tion under the CAT beca use there was no evidenc e sug g esting that Mr. Sica I x coy would be subject to torture in Guatema la at the instigation of or with the a cquiesc ence of public off icials.

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older The BI A af

fi rm ed the I J ’s decision on the issues of asy lum and withholding of remova l under the I

NA and the CAT. I n response to the petitioners’ arg ument that the I J err ed by failing to consider their claim for voluntary depar ture, the Boa

rd found that the petitioners waived this claim by failing to reque st voluntary depar ture during their November 2008 merits hear ing. Fu rt h er, in response to the petit ioners’ arg ument that t h e I J er red by ref using to allow t he testi mony of S ister Fe lix , the BI A found that the petitioners failed to show what information, if any , her t estimony would have provided that would have chang ed th e o u t come. Finally , the BI A reje cted the petitioners’ arg

ument that the I J err ed in holdin g t h at o nly Antonio Sica I x coy applied for withholding of remova l and protec tion under the CAT in his asy lum application. The BI A explained that deriva tive benef

iciarie s who do not file their own independe nt applications for asy lum, like J ulia and Rigobe rta, are not elig ible for withholding of remova l or protec tion under the CAT based upon a lea d responde nt’s application. The petitioners now appe al to this court. II. A. When the BI A adopts the I J ’s re as o n i n g and supplements the I J ’s opinion, this court “‘dire ctly revie ws the decision of the I J while considering the additional comment made by t h e BI A.’” Zhao v

. Holder , 569 F.3d 238, 246-47 (6th Cir. 2009) (quoting Mapouya v. Gonzales , 487 F.3d 396, 405 (6th Cir. 2007)). We revie w leg al conclusions de novo, id. at 246, b u t d efe r to

rea s o n able ag ency interpre tations of t he I NA. INS v. Aguirr e-Aguirre , 526 U.S. 415, 424 (1999); Patel v. Gonzalez , 432 F.3d 685, 692 (6th Cir. 2005). Fa ctual finding s are revie wed for substantial evidenc e. Zhao , 569 F.3d at 246. Under the defe rential substantial-evidenc e standard, the ag ency ’s

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older finding s of fact ar e conc lusive unless any rea sonable a djudicator would be compelled to conclude
to the contra

ry . Id. at 247; see 8 U.S.C. § 1252(b)( 4)(B ). Additionally , the ag ency ’s deter mination must be upheld if it is supported by “re asonable , substantial, and proba tive evidenc e on the rec ord considere d as a whole.” Zhao , 569 F.3d at 247. We may no t re v er s e the ag ency ’s deter mination simply beca use we would have de cided the ma tter diffe rently

. Id. B. 1. I n g ener al, an alien mus t file an asy lum application withi n one y ear of h i s or her arr ival in the United States. 8 U.S.C. § 1158(a) (2)( B)

. There is an exception to this filing deadline, howeve r, wher e the alien can demonstrate “extraordinar y circ umstances rela ting to the delay i n fi l i n g an appli ca t i o n within” the one-y ear period. 8 U.S.C. § 1158(a) (2)( D). Petitioners arg ue that the I J

err ed in failing to rec og nize that Mr. Sica I x coy ’s lack of knowledg e of the Eng lish lang uag e, his mistrust of authorities based on his e x perie nces in his homela nd, and his lack of

knowledg e of the laws of the United States reg arding asy lum constitute exceptional circ umstances excusing the near ly five-y ear delay betwee n his entry into the United States and the filing of his application for asy lum. T h i s court lacks jurisdiction to revie w the decision of the I J , aff irmed by the BI A, that Petitioners’ asy lum application was untimely and that extraordinar y circ umstances did not excuse the untimely filing. See 8 U.S.C. § 1158(a)(3 ). We have held that we “will revie w asy lum applications denied for untimeliness only when the appea l seeks revie w of ‘constitutional claims or matters of statutory construction,’ not when the question is ‘discre tionary ’ or ‘fa ctual.’” ShkulakuP u rballori v. Mukase

y , 514 F.3d 499, 502 (6th Cir. 2007) (quoting Almuhtaseb v. Gonzal es , 4 5 3

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older F.3d 743, 748 (6th Cir. 2006)); see 8 U.S.C. § 1252(a) (2)( D). I n Shkulaku- Purballori , we noted that “the timeliness of an alien’s asy lum application is usually a question o f fac t.” 514 F.3d at 502. After considering Shkulaku’s arg ument that his late filing was the fault of scheduling at the immigra tion court in Detroit, as well as his claim t hat he t h o u gh t an asy lum application had to be filed in front of a judge , we found these issues t o b e “predominantly fac tual” and there fore not subject to revie w. Id. ; see also Soe v . Gonzales , 227 F. App’ x 468, 470 (6th Cir. 2007). Simi larly , in this case , the I J and the BI A made a fac tual deter mination that Mr. Sica I x coy ’s lack of knowledg e of the Eng lish langua g e, mistrust of authorities, and lack of knowle dg e of U .S. law did not excuse his failure to file his asy lum application b efor e the one-y ear deadline. Acc ording ly , we do not have jurisdiction to review that de termination. 2. Petitioners next arg ue that the BI A err ed in holding that J ulia I x coy Mejia and Rigobe rta Sica

wer e not elig ible for withholding of remova l or protec tion under the CAT beca use neither filed her

own application for these forms of protec tion. Rather, J ulia and Rigobe rta made their reque sts f or relief on the basis of Antonio Sica I x coy ’s applica tion. Under 8 U.S.C. § 1158(b)( 3)(A) , an as y l u m appli cant’ s spouse or child may be g rante d deriva tive status. I n other words, had Antonio Sica I x coy been g rante d asy lum, J ulia and Rigobe rta could have b ee n g rante d asy lum on the basis of Antonio’s application alone. Unlike § 1158(b)( 3)(A) , howeve r, the statutes and reg ulations g overning withh o l d i n g of remova l and protec tion under the CAT do not expli citly state that those forms of relief may ap p l y to an applicant’ s family members. See 8 U.S.C. § 1231(b)( 3); 8 C.F.R. § 1208.16(c) (2), (4). I n discussing

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older the differ ence s between as y l u m and withholding of remova l in Castellano-Chacon v. INS , we explained that “a g rant of an alien’s application for withholding is not a basis for adjustment to leg al perma nent resident status, family membe rs are not granted derivative status , and it only prohibits

remova l of the petitioner to the country of risk, but does not prohibit remova l to a non-risk country .” 341 F.3d 533, 545 (6th C i r. 2003) (emphasis added)

. Other circuits also hold that withholding of

remova l and protec tion under the CAT do not extend to an applicant’ s spouse and/or minor children. See A rif v. Mukase

y , 509 F.3d 677, 682 ( 5 Cir. 2007); Mohame d v. Ashcroft , 396 F.3d 999, 1002 t h (8 C i r. 2005); Ali v. Ashcroft , 394 F.3d 780, 782 n. 1 (9 Cir. 2005). I n Arif , the Fifth Circuit t h t h

rea soned as f

ollows: The statute providing for asy l u m ex p ressly includes a provision for deriva tive benef iciarie s, but the statute providing for withholding of remova l makes no mention of deriva tive relief

. I n t h e absenc e of lang uag e reg arding deriva tive benef iciarie s simil ar to that found i n the asy lum statute, we cannot infer that Congr ess intended withholding of remova l to apply to the spouse and mino r ch i l d ren of an applicant who do not independe ntly qualify for relief

. I ndeed, prec isely the opposite infere nce must b e m ad e from the prese nce of such lang uag e in one statute and the absenc e there of in the other sta tute. 509 F.3d a t 682 (interna l citation omitted). Thus, the BI A di d not err in holding that J ulia and Rigobe rta wer e ineligible for withholding of remova l and protec tion under the CAT on the basis of Antonio’s applica tion. Moreove r, even if it was err or to find that J ulia and Rigobe rta wer e require d to file their own applications, it was a harmless one. J ulia and Rigobe rta have no claims for withholding of remova l and protec tion under the CAT that would be separ ate from, and independe nt of, Antonio’s claims. As discussed below, substantial evidenc e supports the decision t h at An t o nio does not qualify for these for ms of relief

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older 3. To establish a claim for wi t h h o l d i n g o f remova l, “an applicant must demonstrate a clea r p ro b ab i l ity that his life or fre edom would be threa tened in the country direc ted for remov al o n

acc ount of his rac e, relig ion, nationality , membership in a particula r social g roup, o r p o l itical opinion.” Zhao , 569 F.3d at 245 (citing INS v. Stevic , 467 U.S. 407 (1984)) ; see 8 C.F.R. 1208.16(b). Stated otherwise, a n applicant must show a “ clea r proba bility of per secution.” Ceraj

v. Mukase y , 511 F.3d 583, 594 (6th Cir. 2007) (quoting Ali v. Ashcrof t, 366 F.3d 407, 411 (6th Cir. 2004)). Under the reg ulations, “[ t ] he testimony of the applicant, if cre dible, may be sufficie nt to sustain the burden of

proof without cor

robora tion.” 8 C.F.R. § 1208.16(b). I n evalua ting a claim for withholding of remova l, the I J must consider whether the applicant suffe red past perse cution in the proposed country of removal. 8 C

. F. R

. § 1208.16(b)( 1)(i). I f t he applicant establishes past perse cution on one of the five g rounds enumerated above, then future perse cution is p re s umed. Id. The ag ency can rebut t his presumption, howeve r, by demonstrating by a prepondera

nce of the evidence that there has been a fundame ntal chang e in circ umstances or that the applicant could avoid a future t hrea t to his l ife or f ree dom by

reloc ating to another pa

rt of the proposed country of remova l. 8 C.F.R. § 1208.16(b)( 1)(i)- (ii). I f the applicant cannot establish past perse cution, then he bear s the burden of establishing that it is more likely than not that he would suffe r a future threa t to his life or fre edom if returne d to the proposed country of remova l. 8 C.F.R. § 1208.16(b)( 2). The I J found, and the BI A ag ree d, that Mr. Sica I x coy fa i led to establish past perse cution based on his experience s with Guatema lan g uerr illas in the 1970s and 1980s. Substantial evidenc e

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older supports this decision. I n INS v. Elias-Zacarias , 502 U.S. 478, 482 (1992), the Supreme Court found
t h at Elias-Z aca

rias, a Guatema lan, could not show that g uerr illas perse cuted him for his p o l i t i ca l opinion wher e he ref

used to join their ranks out of fea r that the g overnme nt would reta liate ag ainst him and his family

. Stated otherwise, he could not show that his motive for resisting the g uerr illas

was po l i t i ca l l y b ased. Id. I n the instant case , most of Mr. Sica I x coy ’s testimony reg arding g uerr illas related to their

eff orts to rec ruit his father

into their ranks, a

nd, like Elias-Z aca

rias, Sica I x coy failed to articula te a political motive for his family ’s resistanc e to the g uerr illas. Fur ther, Sica I x coy did not demonstrate that the g uerr illas hara ssed or perse cuted his family on the basis of their

rac e, re ligion, nationality , or member ship in a particular social g roup. Additionally , substantial evidenc e supports the decision of the I J and the BI A that Mr. Sica I x coy failed to establish a likelihood of future perse cution by the g uerr illas. As we noted in Pascual v. Muk asey , 514 F.3d 483, 488 ( 6th Cir. 2007), the civil war in Gua temala ended in 1996, and “a s the war subsided, so did any objectively rea sonable fea r of perse cution” at the hands of g uerr illas. Even Sica I x coy

himself conce ded that the g uerr illas are no long er a ctive. Finally , substantial evidenc e supports t h e I J ’s and the BI A’s deter mination that Mr. Sica I x coy failed to establish a l i k elihood of future perse cution by g ang s on acc ount of one of the five

enumer ated g rounds. Alt h o u gh the petitioners’ brief states that g ang s in Guatema la would targ et the petitioners beca

use they are May ans, during their testimony befor e the I J , neither Mr. Sica I x coy

nor his wife testified that they fea r g ang s will perse cute them on acc ount of their identity as May ans. I nstead, t h ey t estified about a level of g ener al violence and hara ssment by g ang s share d by all citizens of Guate m al a. S u ch g ener al violence is insufficient to state a claim for withholding of

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older

remova l. See M

endez- Coronado v

. Holder , 374 F. App’ x 601, 605 (6th Cir. 2010). Additionally , the fac t th at n o o n e in Mr. Sica I x coy ’s family or his wife’ s family living in Guatema la has been harme d by the g ang s further undermines his claim. See Pascual 514 F.3d at 489; Moran-Quinteros v. Holder , 352 F. App’ x 974, 979 (6th Cir. 2009). 4. To war rant withholding of remova l under the CA T , an applicant must “esta blish that it is

m o re l i k ely than not that he or she would be tortured if remove d to the proposed country of

remova l.” 8 C.F.R. § 1208.16(c) (2); see Ceraj , 511 F.3d at 594. The reg ulations define torture as

any act by which sever e pain and suffe ring , whether phy sical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confe ssion, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimi dating or coercing him or her or a third person, or for any rea son based on discri m i n at ion of any kind, when such pain or suffe ring is inflicted by or at the instigation of or with the conse nt or acquie scenc e of a public officia l or other pe rson ac ting in an of ficial capa city

. 8 C.F.R. § 208.18(a) (1). I n considering whether an applicant qualifies for relief under the CAT, “all evidenc e rele van t t o t h e possibili ty of future torture shall be considere d.” 8 C.F.R. § 1208.16(c) (3). This includes evidenc e of past torture inflicted u p o n t h e ap plicant. 8 C.F.R. § 1208.16(c) (3)( i). Her e, the I J found that Mr. Sica I x coy prese nted no evidenc e that an y o ne in Guatema la would seek him or his family out in order to tor ture them. The BI A ag ree d, further noting that the

rec ord does not support Mr. Sica I x coy ’s “a ssertion that the Gua temalan g overnme nt ‘ac quiesce s’ in trea tment rising to the level o f t o rt u re b y street g ang s beca use it is ‘cor

rupt.’” See Amir v. Gonzales , 467 F.3d 921 (6th Cir. 2006) (as cited by Mr. Sica I x coy ). Substantial evidenc e supports 10No. 09-4296

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older this decision. As noted previously , Mr. Sica I x coy and his wife both tes t i fi ed that their family members living i n Guatema la have not been phy sically harme d by the g ang s. Thus, there is no

rea son to believe that Mr. Sica I x coy wo u ld suffe r phy sical torture if remove d to Guatema la. Fur ther, althoug h there was testimony that the g ang s have attempted to rec ruit family members and have ha rasse d and extorted money from Mr. Sica I x coy ’s fa ther, this does not a ppear to r ise to the level of mental “torture ” contemplated by the reg ulations. Thus, there is no evidenc e that Mr. Sica I x coy would experience mental torture in his home c ountry

. 5. The I J denied the petitioners’ reque st to permit Sist er Honora Fe lix to testify as a lay witness

on country conditions in Guatema la. He did so by order enter ed J anuar y 22, 2008, more than a wee k afte r he rec eived a letter from Sist er Fe lix

. At the hear ing, the I J noted that he was in possession of the letter, and he made it a part of the rec ord. I n her letter, Sist er Fe lix explains that she has serve d in Guatema la for twenty -six y ear s, and she states t hat s he “can testify to the vi olen ce an d conflict that has char acte rized that society and continues to do s o . ” S i s t er Fe lix ref ers to Guatema la as “virtually a failed state,” and she claims that based on the are a wher e Mr. Sica I x coy is fro m , his claims of dang er a

re “ plausible.” The BI A aff

irmed the I J ’s decision not to allow Sist er Fe lix to testify at the hear ing. The Boa rd stated that petitioners failed to indicat e wh at, if any , information Sist er Fe lix would have provided that would have chang ed the outcome of the application. Petitioners disag ree . They arg ue t h at S i s t er Felix would have been able t o testify in g rea ter detail about t he prevalenc e of g an gs i n Guatema la, the composition of the g ang s, and police involveme nt in the ga ng s.

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older I n Singh v. Ashcroft , 398 F.3d 396, 406 (6th Cir. 2005) (citation and internal quotation marks omitted), we noted that “[i] n immigra tion proce edi ng s, an applicant is entitled to a rea sonable opportunity to ex am i n e t h e evidenc e ag ainst him, to prese nt evidenc e on his own behalf , and to

cross-e x amine witnesses prese nted by the Gover nment.” Fur

ther, we explained that evidentiar y matters in immigra tion proce eding s “ar e not subject to the Fe dera l Rules of Evidence , and we revie w evidentiar y ruling s by I J s only to deter mine whether such ruling s have resulted in a violation of due p ro cess.” Id. at 406-07 (citations omitted). Her e, the petitioners’ due proce ss rig hts wer e n o t violated. Petitioners c ontend that Sist er Fe lix ’s letter indica tes the path he r testimony would have taken. Nothing about h er l et t er sug g ests, howeve r, that Sist er Fe lix would have been able to establish that Mr. Sica I x coy would fac e perse cution by g ang s on acc ount of his identity as a May an,

or that she would have provided evidenc e demonstrating that it is more likely than not that Mr. Sica I x coy would suffe r h ar m am o unting to torture if remove d to Guatema la. Acc ording ly , it was not

err or for the I J to deny the petitioners’ reque st to allow Sist er Fe lix to testify at their merits hear ing. 6. Petitioners arg ue that the I J err ed in failing to aff ord them an opportuni t y for voluntary depar ture. See 8 U.S.C. § 1229c(b) (1)( A)-( D). I n its revie w, the BI A noted that the petitioners did
not seek voluntary depart u re d u ri ng their merits hear ing. There fore , the BI A found no rea son to

rema nd the re cord to the I J for the pur pose of de termining the petitioners’ e ligibility for voluntar y depar ture. I n other wor ds, the BI A found that the pe titioners waived the issue. I n Xhuti v. Mukase

y , 281 F. App’x 536, 540 (6 t h C i r. 2008), we noted that “[i] n prior administrative decisions, the Boa rd has develope d and applied a rule that issues n o t objected to

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older below are waived on appea l.” We further noted that “[s] ever al courts have rec og nized the validity of the Boa

rd ’s wa i v er rule.” Id. (citing cas13e s). Although the petitioners raised the issue of voluntary depar

ture during p re l i m i nary hear ings, they did not reque st it as an alterna tive form of relief at the mer its hearing . On this recor d, the B I A did not abuse its discretion in finding that the petitioners waive d their cla im for voluntary depar ture. See X

huti , 281 F. App’ x at 540. III. For the re asons stated a

bove, we DENY REVIEW

.

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