          United States Court of Appeals
                      For the First Circuit


No. 18-1430

                    JAIME RODRIGUEZ-PALACIOS,

                           Petitioner,

                                v.

                         WILLIAM P. BARR,
                 UNITED STATES ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.


     Melanie Chaput and Chaput Law Office on brief for petitioner.
     Genevieve Kelly, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Joseph H. Hunt, Assistant
Attorney General, Civil Division, U.S. Department of Justice, and
Cindy S. Ferrier, Assistant Director, Office of Immigration
Litigation, U.S. Department of Justice, on brief for respondent.



                          June 12, 2019
           BARRON,     Circuit     Judge.            Jaime   Rodriguez-Palacios

("Rodriguez"), a Mexican citizen, petitions for review of the Board

of   Immigration     Appeals's     ("BIA")          order,   which     upheld   the

Immigration Judge's ("IJ") denial of his applications for asylum,

withholding   of   removal,      and    protection       under   the    Convention

Against Torture ("CAT").      We dismiss in part and deny in part the

petition for review.

                                        I.

           Rodriguez was born in Mexico and entered the United

States without inspection in February 2007.                  The Department of

Homeland Security ("DHS") commenced removal proceedings against

Rodriguez on July 3, 2012, by filing a Notice to Appear with the

Immigration Court that charged him with being removable from the

United States under 8 U.S.C. § 1182(a)(6)(A)(i).1                  Thereafter, in

November   2012,     Rodriguez    filed        an    application     for   asylum,

withholding of removal, and protection under the CAT.




     1  Rodriguez notes that the Notice to Appear failed to
designate a date or time for the future hearing, stating only that
he was required to appear at a date and time "to be set." Citing
Pereira v. Sessions, 138 S. Ct. 2105 (2018), Rodriguez contends
that his Notice to Appear is now considered statutorily deficient,
rendering   him   eligible   for  Cancellation   of   Removal  for
Nonpermanent Residents. However, he does not offer any arguments
to us in reliance on Pereira, but rather notes that he has filed
a motion before the BIA to remand the matter to the IJ. Therefore,
we do not address that issue in this opinion.


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             At a hearing before the IJ on May 3, 2017, Rodriguez

testified as follows.       He was born and raised in Colima, Mexico,

where his parents and siblings still resided.                Four years before

he entered the United States, someone unsuccessfully tried to hit

him with a bottle at a party.                After the attempted assault,

Rodriguez ran away with his friends and, afraid of retaliation,

never reported the incident to the police, though his friends told

him that the perpetrator belonged to a gang.                Before he left for

the United States, he worked at a shipyard.                 Neither he nor his

co-workers had any problems there.                 He left Mexico with the

assistance of a coyote "[b]ecause [he] was looking for the future,

and because of the violence that's in Mexico."

             Rodriguez    further    testified     that     his   family     had    no

problems in Mexico even after he left, though his brother worked

for   the   Mexican    military     and   kept    to   himself    out   of    fear.

Rodriguez also mentioned that, about a month before his hearing

before the IJ, a friend of his was murdered by gang members at a

location    that   was   about     fifteen   to    twenty    minutes    from       his

hometown,    perhaps     because    his   friend    used    drugs.      Rodriguez

testified that he feared returning to Mexico because he or his

children could be targeted by kidnappers or extortionists who would

assume that he had money because he was returning from the United

States.     Finally, Rodriguez noted that he did not apply for asylum

in 2007 because circumstances were better in Mexico at that time.


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He stated that "[a]bout nine or 10 years [ago] is when things

started   to    change.      And   they're     worse   and   worse     with   the

kidnappings and murders and the cartels."

            After reviewing this testimony, along with news articles

and   country   reports     that   Rodriquez    submitted,      the   IJ   denied

Rodriguez's applications for asylum, withholding of removal, and

deferral of removal under the CAT, but granted his request for

voluntary departure.        Rodriguez filed a Notice of Appeal to the

BIA, which upheld the IJ's factual findings and dismissed the

appeal.   We now consider Rodriguez's timely petition for review of

the BIA's ruling.

                                      II.

            Where, as here, "the BIA wrote separately while also

approving the IJ's decision, our review is directed at both of

those decisions."         Ahmed v. Holder, 765 F.3d 96, 99 (1st Cir.

2014).    We examine legal conclusions de novo and factual findings

under the substantial evidence standard, "accepting the agency's

factfinding     unless    the   evidence     'would    compel    a    reasonable

factfinder to reach a contrary conclusion.'"                    Guaman-Loja v.

Holder, 707 F.3d 119, 122 (1st Cir. 2013) (quoting Seng v. Holder,

584 F.3d 13, 17 (1st Cir. 2009)).

                                      A.

            A petitioner seeking asylum must "demonstrate[] by clear

and convincing evidence" that his asylum application was filed


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within one year of his arrival in the United States.             8 U.S.C.

§ 1158(a)(2)(B).     A failure to meet this one-year filing deadline

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."   Id. § 1158(a)(2)(D).

           Rodriguez did not file his asylum application within one

year of entering the United States.           Moreover, he acknowledges

that "we have no jurisdiction to review the Attorney General's

determination that an asylum application is untimely and unexcused

by circumstances."     Usman v. Holder, 566 F.3d 262, 267 (1st Cir.

2009) (internal alteration omitted) (quoting Lutaaya v. Mukasey,

535 F.3d 63, 69 (1st Cir. 2008)) (citing 8 U.S.C. § 1158(a)(3)

(providing that "[n]o court shall have jurisdiction to review any

determination of the Attorney General" on an asylum seeker's

compliance with the one-year time limit)).

           Nevertheless, Rodriguez contends that we may review his

challenge pursuant to 8 U.S.C. § 1252(a)(2)(D), which states that

"[n]othing in . . . this chapter . . . which limits or eliminates

judicial   review,   shall   be   construed   as   precluding   review   of

constitutional claims or questions of law raised upon a petition

for review."    In order for this exception to the jurisdictional

bar to apply, "the putative constitutional or legal challenge must


                                   - 5 -
be more than a disguised challenge to factual findings."                Usman,

566 F.3d at 267 (quoting Pan v. Gonzales, 489 F.3d 80, 84 (1st

Cir. 2007)).

          Rodriguez styles his challenge to the BIA's timeliness

ruling as one that targets the legal standard that the BIA applied.

In fact, however, his challenge takes issue with the evidentiary

basis for the BIA's finding that "circumstances" did not excuse

his untimely application for asylum.           Therefore, we do not have

jurisdiction to review his petition for review of the BIA's ruling

on his asylum claim.    See Oroh v. Holder, 561 F.3d 62, 66–67 (1st

Cir. 2009).

                                       B.

          Rodriguez    also      sought     withholding    of   removal    and

protection under the CAT.          These forms of relief require the

petitioner to prove that it is "more likely than not" that he

himself would face persecution or torture if he returned to his

home country.      Usman, 566 F.3d at 268 (quoting Guillaume v.

Gonzales, 504 F.3d 68, 71 n.2 (1st Cir. 2007)).                  There is no

jurisdictional bar to our review of the BIA's rulings as to these

claims.       Nevertheless, we reject his challenges to the BIA's

rulings as to each.

          With    respect   to   his    challenge   to    the   BIA's   ruling

affirming the IJ's denial of his request for withholding of

removal, Rodriguez waived it by failing to develop it in his


                                   - 6 -
opening brief.    See, e.g., United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied    by   some   effort    at    developed   argumentation,    are

deemed waived.").     That leaves, then, only Rodriguez's challenge

to the BIA's affirmance of the IJ's denial of his CAT claim on the

ground that "there is no evidence in the record that the respondent

would be singled out for torture with the consent or acquiescence

of a public official."       (Emphasis added).

           The   IJ   specifically      found    that    Rodriguez   was   not

tortured in the past, that his family has not been tortured in

Mexico, and that, although one of his friends was killed, Rodriguez

had not provided any evidence with respect to that crime to show

the motivation of the killers.        As Rodriquez fails to identify any

evidence to suggest that substantial evidence fails to support the

BIA's affirmance of the IJ's finding that he himself is not likely

to be tortured, he provides us with no basis for overturning the

BIA's ruling on his CAT claim.

                                      III.

           The petition for review is dismissed in part and denied

in part.




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