                                                                              FILED
                            NOT FOR PUBLICATION
                                                                                JUL 6 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUAN FRANCISCO BERNABE,                          No.    17-72726

              Petitioner,                        Agency No. A092-404-759

 v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted June 3, 2020**
                               Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,***
District Judge.

      Petitioner Juan Francisco Bernabe (Bernabe), a citizen of Guatemala,

petitions for review of the decision of the Board of Immigration Appeals (BIA)

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
dismissing his appeal of the denial of asylum, withholding of removal, and deferral

of removal under the Convention Against Torture (CAT).

      Substantial evidence supports the BIA’s determination that Bernabe failed to

establish extraordinary circumstances beyond his control to justify the untimely

filing of his asylum application. See Al Ramahi v. Holder, 725 F.3d 1133, 1138

(9th Cir. 2013) (applying substantial evidence standard). Bernabe has cited no

persuasive authority that his pursuit of an adjustment of status constituted an

exceptional circumstance. As the immigration judge (IJ) determined, Bernabe “has

resided in the United States for multiple decades but did not file his [asylum

application] until over five years after he was ordered removed in absentia.”

Under these circumstances, Bernabe failed to adequately explain his failure to

timely file his asylum application prior to 2010. See Husyev v. Mukasey, 528 F.3d

1172, 1181-82 (9th Cir. 2008).

      “To the extent that [Bernabe] asserts that the BIA . . . failed to consider some

or all of [his] evidence [of changed circumstances], [he] has not overcome the

presumption that the BIA did review the record.” Fernandez v. Gonzales, 439 F.3d

592, 603 (9th Cir. 2006) (citation omitted). As reflected by its discussion of

numerous documents in the record and Bernabe’s declaration, the BIA sufficiently

reviewed the evidence submitted by Bernabe to support his claims. See Cole v.


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Holder, 659 F.3d 762, 771 (9th Cir. 2011) (articulating that the BIA is not required

to “discuss each piece of evidence submitted”).

      Substantial evidence supports the BIA’s determination that Bernabe failed to

establish a clear probability of persecution or torture on an individualized basis.

See Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010), as amended

(explaining that “a petitioner’s membership in a disfavored group is not sufficient

by itself to meet [his] ultimate burden of proof; some evidence of individualized

risk is necessary for the petitioner to succeed”) (citation and internal quotation

marks omitted) (emphases in the original); Dhital v. Mukasey, 532 F.3d 1044, 1051

(9th Cir. 2008) (stating that, for deferral of removal under the CAT, “the petitioner

must demonstrate that he would be subject to a particularized threat of torture”)

(citation and internal quotation marks omitted) (emphasis in the original).

      We reject Bernabe’s contention that his due process rights were violated

when the IJ on remand precluded his counsel from submitting arguments in

support of his application. During the remanded proceedings, Bernabe’s counsel

acknowledged that: she was prepared to submit the case on the record, Bernabe

did not intend to offer additional evidence, and Bernabe was relying on his

declaration to support his claims. The IJ thoroughly reviewed the submitted

evidence, and rendered a reasoned decision supported by substantial evidence


                                           3
denying asylum, withholding of removal, and deferral of removal pursuant to the

CAT. As a result, Bernabe fails to demonstrate that “the proceeding was so

fundamentally unfair that [he] was prevented from reasonably presenting his case,”

or “that the outcome of the proceeding may have been affected by the alleged

violation.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000) (citations

omitted).

      PETITION DENIED.




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