Everardo Reyes-Gomez v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : we dismiss Reyes-Gomez's petition for review insofar as he seeks review of the denial of his asylum application as untimely, and we DENY the petition in all other respects. Decision not for publication. Eugene E. Siler , Jr., Circuit Judge; Julia Smith Gibbons, Circuit Judge and Richard Allen Griffin, Circuit Judge.

Case: 12-3979

Document: 006111662037

Filed: 04/19/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0393n.06

FILED

No. 12-3979

Apr 19, 2013

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EVERARDO JAVIER REYES-GOMEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

PER CURIAM. Everardo Javier Reyes-Gomez petitions for review of an order of the Board
of Immigration Appeals (BIA) that affirmed an immigration judge’s (IJ) denial of his application for
asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
Reyes-Gomez is a native and citizen of Mexico. He last entered the United States in 2004.
In 2010, Reyes-Gomez filed an application for asylum, withholding of removal, and relief under the
CAT, alleging that he would be persecuted and tortured by criminal gangs if removed to Mexico.
The IJ denied Reyes-Gomez’s asylum application, concluding that it was untimely and that ReyesGomez failed to demonstrate changed circumstances under 8 U.S.C. § 1158(a)(2)(D) to excuse the
untimely filing. The IJ further concluded that Reyes-Gomez failed to demonstrate entitlement to
asylum, withholding of removal, or relief under the CAT. The BIA dismissed Reyes-Gomez’s
appeal.

Case: 12-3979

Document: 006111662037

Filed: 04/19/2013

Page: 2

No. 12-3979
Reyes-Gomez v. Holder
Reyes-Gomez argues that the IJ and BIA erred when determining whether he demonstrated
changed circumstances under § 1158(a)(2)(D) to excuse the untimely filing of his asylum
application. He asserts that escalating violence in Mexico from 2004 to 2010, including the murder
of his friend and kidnapping of his cousin, constituted changed circumstances and that the IJ failed
to consider the country reports discussing the increasing level of violence in Mexico. Reyes-Gomez
also argues that the IJ and BIA erred by concluding that he failed to establish entitlement to asylum.
An asylum applicant must demonstrate by clear and convincing evidence that he filed the
application within one year of entering the United States, unless, as relevant here, he can show “the
existence of changed circumstances which materially affect [his] eligibility for asylum.” 8 U.S.C.
§ 1158(a)(2)(B), (D). We lack jurisdiction to review the denial of an asylum application as untimely
unless the applicant seeks review of constitutional claims or matters of statutory construction. 8
U.S.C. § 1158(a)(3); Fang Huang v. Mukasey, 523 F.3d 640, 650 (6th Cir. 2008). We cannot review
Reyes-Gomez’s argument concerning whether escalating violence in Mexico constitutes changed
circumstances under § 1158(a)(2)(D) because the argument is predominantly factual.

See

Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). To the extent that Reyes-Gomez raises
a legal challenge based on the IJ’s failure to consider the country reports concerning the increasing
level of violence in Mexico, the challenge fails because the IJ explicitly referenced the reports when
conducting his analysis. Because Reyes-Gomez cannot overcome the finding that his asylum
application was untimely, we need not address the denial of the application on the merits.
Reyes-Gomez waived any challenge to the denial of withholding of removal and relief under
the CAT by failing to properly address those issues in his appellate brief. See Shkabari v. Gonzales,
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Case: 12-3979

Document: 006111662037

Filed: 04/19/2013

Page: 3

No. 12-3979
Reyes-Gomez v. Holder
427 F.3d 324, 327 n.1 (6th Cir. 2005). The brief neither sets forth the relevant legal standards for
withholding of removal or relief under the CAT nor applies those standards to the facts of the case.
In any case, substantial evidence supported the BIA’s determination that Reyes-Gomez failed to
establish that, if removed to Mexico, it is more likely than not that he would be subjected to either
persecution on account of a protected ground or torture. See Dugboe v. Holder, 644 F.3d 462, 47172 (6th Cir. 2011); Khozhaynova v. Holder, 641 F.3d 187, 192-93 (6th Cir. 2011).
Accordingly, we dismiss Reyes-Gomez’s petition for review insofar as he seeks review of
the denial of his asylum application as untimely, and we deny the petition in all other respects.

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