                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 18-2068
                                        ___________

                                JEFFERSON GUARDADO,
                                                Petitioner

                                              v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                           Respondent
                 ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A209-346-147)
                     Immigration Judge: Honorable Paul M. Gagnon
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                December 14, 2018
        Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                             (Opinion filed: January 24, 2019)
                                      ___________

                                         OPINION*
                                        ___________

PER CURIAM

       Jefferson Guardado petitions pro se for review of a final order of removal. For the

reasons that follow, we will dismiss the petition in part and deny it in part.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                            I.

       Guardado is a citizen of El Salvador. He first entered the United States in 2008, at

the age of 26. In 2017, the Government charged Guardado with being removable as an

alien present in the United States without being admitted or paroled. See 8 U.S.C.

§ 1182(a)(6)(A)(i). Through counsel, Guardado conceded his removability but applied

for asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). On October 23, 2017, Guardado had an individual hearing before an Immigration

Judge (IJ) on his application for relief.

       Guardado testified that he witnessed a murder by MS-13 gang members in 2008.

Guardado had no involvement with the gang. After the murder, gang members

approached Guardado and told him that he “had not seen anything.” A.R. at 370.

Guardado hid at home for several days while gang members stopped by to ask if the

police had asked him any questions. Guardado did not tell the police what he witnessed.

When a former classmate told Guardado that the gang was planning to kill him, he moved

to a relative’s home. Two armed gang members found him, asked him why he was

hiding, and “showed [him] the[ir] weapons.” A.R. at 373. Guardado decided to leave El

Salvador after this incident. Soon after Guardado left, the Salvadoran police arrested

several of the gang members responsible for the murder that Guardado witnessed.

       Guardado believes that gang members will target him if he were to return to El

Salvador because gang members frequently ask his stepfather, who still lives in his town,

where Guardado lives. Guardado also contends that country conditions in El Salvador
                                             2
have worsened substantially since he left and that the gang can find him anywhere he

goes. Finally, Guardado testified that he supports his two minor children financially and

that they would suffer if he were forced to return to El Salvador.

       Although the IJ found Guardado’s testimony credible, he denied Guardado’s

application on November 3, 2017. The Board of Immigration Appeals (BIA) affirmed on

April 17, 2018. The BIA concluded that Guardado’s asylum claim was time-barred

because he did not file his asylum application within one year of his last entry into the

United States and did not demonstrate that any changed circumstances triggered an

exception to that filing deadline. Next, the BIA determined that Guardado was not

entitled to withholding of removal because regardless of whether he belonged to a

particular social group, he had not suffered past persecution and could not show a

likelihood of future persecution.1

       Finally, the BIA construed Guardado’s submission of additional documents with

his brief on appeal as a motion to remand his case. The additional documents Guardado

submitted included information about country conditions in El Salvador, personal

biometric information, financial information, letters of support from family members and

friends, medical documentation about his son, documentation about his daughter’s




1
  The BIA also determined that Guardado had abandoned his CAT claim on appeal by
failing to meaningfully discuss it in his brief. The IJ concluded that Guardado was not
entitled to CAT relief because he had not shown that it was more likely than not that he
would be tortured if he returned to El Salvador.
                                               3
asylum case,2 and an attorney misconduct complaint filed against the attorney who

represented him before the IJ. Guardado argued that his attorney should have submitted

these documents with his application to the IJ and that his failure to do so rendered his

representation ineffective.

       The BIA determined that Guardado had failed to show how any of these

documents demonstrated his eligibility for relief and denied his request to remand the

case. The BIA also concluded that Guardado had not complied with procedural

requirements to raise an ineffectiveness claim, and that in any event, he had not shown

prejudice stemming from his attorney’s alleged errors. Guardado timely petitioned for

review.

                                             II.

       We have jurisdiction to review Guardado’s final order of removal pursuant to

8 U.S.C. § 1252(a)(1), subject to the discussion below. Where, as here, the BIA affirmed

and partially reiterated the IJ’s determinations, we review both decisions. See Sandie v.

Attorney Gen. of the U.S., 562 F.3d 246, 250 (3d Cir. 2009). We review the agency’s

factual findings for substantial evidence. See Mendez-Reyes v. Attorney Gen. of the

U.S., 428 F.3d 187, 191 (3d Cir. 2005). Under this deferential standard of review, we

must uphold those findings “unless the evidence not only supports a contrary conclusion,

but compels it.” See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). We


2
  In 2012, Guardado’s daughter came to the United States after gang members threatened
to abduct her. She later received asylum.
                                          4
review the BIA’s denial of a motion to remand for abuse of discretion. See Huang v.

Attorney Gen. of the U.S., 620 F.3d 372, 390 (3d Cir. 2010).

                                            III.

       First, this Court lacks jurisdiction to review the BIA’s conclusion that Guardado

failed to show changed circumstances that could excuse the late filing of his asylum

application.3 See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 634-35

(3d Cir. 2006). Guardado challenges only the BIA’s factual determinations regarding the

timeliness of his asylum claim, which are beyond the scope of this Court’s review. See

Sukwanputra, 434 F.3d at 634; see also Jarbough v. Attorney Gen. of the U.S., 483 F.3d

184, 189 (3d Cir. 2007) (“[C]hallenges to the BIA’s extraordinary or changed

circumstances determinations do not constitute ‘questions of law’ within the meaning of

[8 U.S.C.] § 1252(a)(2)(D).”). Guardado has not raised any constitutional claims or

questions of law regarding the timeliness of his asylum application. See 8 U.S.C.

§ 1252(a)(2)(D). Accordingly, Guardado’s petition will be dismissed to the extent that he

challenges the BIA’s disposition of his asylum claim.

       Next, to establish eligibility for withholding of removal, Guardado was required to

show a clear probability that he would be persecuted in El Salvador on account of a

protected ground — in this case, his membership in a particular social group. See 8

C.F.R. § 1208.16(b); Valdiviezo-Galdamez v. Attorney Gen. of the U.S., 663 F.3d 582,


3
   It is undisputed that Guardado did not file his asylum application within the one-year
filing deadline. See 8 U.S.C. § 1158(a)(2)(B).
                                               5
591 (3d Cir. 2011). Guardado’s primary argument in his brief is that he belongs to

particular social group, but regardless of whether he could make such a showing, his

claim fails at the next step in the analysis.

       The BIA did not err in concluding that Guardado could not show past persecution

or a likelihood of future persecution. “[W]e have limited the type of threats constituting

persecution to only a small category of cases, and only when the threats are so menacing

as to cause significant actual suffering or harm.” Chavarria v. Gonzalez, 446 F.3d 508,

518 (3d Cir. 2006) (internal quotation marks omitted). As the BIA determined, the few

veiled, unfulfilled threats made against Guardado are insufficient to establish past

persecution. See Gomez-Zuluaga v. Attorney Gen. of the U.S., 527 F.3d 330, 341 (3d

Cir. 2008) (noting that “unfulfilled threats of physical mistreatment” must be

“sufficiently imminent or concrete for the threats themselves to be considered past

persecution”) (internal quotation mark omitted); Li v. Attorney Gen. of the U.S., 400

F.3d 157, 164 (3d Cir. 2005) (“[U]nfulfilled threats must be of a highly imminent and

menacing nature in order to constitute persecution.”). As for future persecution, the BIA

properly concluded on this record that Guardado could not show a clear probability of

future persecution but rather, as the IJ discussed, only that he may be subjected to the

overall high rate of criminal activity in El Salvador.4 See Konan v. Attorney Gen. of the


4
  Additionally, although the BIA concluded that Guardado had waived a challenge to the
IJ’s denial of CAT relief, Guardado’s references to his CAT claim in his BIA brief were
sufficient to have exhausted his administrative remedies regarding that issue. See Lin v.
Attorney Gen. of the U.S., 543 F.3d 114, 121 (3d Cir. 2008) (“[S]o long as an
                                             6
U.S., 432 F.3d 497, 506 (3d Cir. 2005); Abdille, 242 F.3d at 494-95.

       Finally, the BIA did not abuse its discretion when it denied Guardado’s motion to

remand, and its factual findings are supported by substantial evidence. See Sevoian v.

Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). Guardado has not explained how the

submission of these documents could have affected the outcome of his initial application,

as the documents do not address any of the above issues. Additionally, as the BIA

determined, Guardado did not substantially comply with the procedural requirements of

In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), for raising an ineffective assistance

of counsel claim. The record does not indicate that Guardado attempted to inform his

prior counsel of his claim or give him an opportunity to respond. See Fadiga v. Attorney

Gen. of the U.S., 488 F.3d 142, 155 (3d Cir. 2007). Further, on this record, Guardado

cannot establish that the BIA erred when it concluded that he failed to show that his prior

counsel’s alleged errors prejudiced him. See Contreras v. Attorney Gen. of the U.S., 665

F.3d 578, 584 (3d Cir. 2012).

       Accordingly, we will dismiss Guardado’s petition in part and deny it in part.




immigration petitioner makes some effort, however insufficient, to place the Board on
notice of a straightforward issue being raised on appeal, a petitioner is deemed to have
exhausted her administrative remedies.”). Thus, it appears that we have jurisdiction to
review the denial of CAT relief in this case. See 8 U.S.C. § 1252(d)(1); Lin, 543 F.3d at
120-21. However, Guardado makes no meaningful arguments on appeal as to why the
IJ’s denial of CAT relief was incorrect. A showing of generalized violence in El
Salvador cannot demonstrate that it is more likely than not that Guardado will be tortured
if he returned there. See Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002).
                                              7
