Ramos-Braga v. Sessions, No. 17-1998 (7th Cir. 2018)
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Ramos-Braga's São Paulo neighborhood was controlled by a gang (PCC), which tried to recruit him and attacked him many times. Police did not help but beat him when he made reports. After a beating hospitalized him for two weeks, Ramos-Braga stopped attending college and spent months moving around. When he returned home, a PCC member shot him. Months later, Ramos-Braga was admitted to the U.S. on a student visa. He married a U.S. citizen, but Ramos-Braga estimated that his wife physically abused him over 100 times. Seven years after he arrived, Ramos-Braga was charged as removable, 8 U.S.C. 1227(a)(1)(B). He sought special-rule cancellation of removal for battered spouses and withholding of removal under 8 U.S.C. 1231(b)(3) and the Conviction Against Torture. Meanwhile, Ramos-Braga and his wife got into a fight. He was convicted of battery and, after asking his wife not to testify, witness intimidation. DHS added a charge under 8 U.S.C. 1227(a)(2)(A)(ii) for having been convicted of crimes involving moral turpitude. The BIA affirmed a removal order. During his appeal, his attorney ended the representation. Ramos-Braga continued pro se. After his petition was denied, Ramos-Braga, still pro se, moved the BIA to reopen proceedings. The motion was denied as untimely, but Ramos-Braga maintains he never received notice of this decision. Ramos-Braga filed a second pro se motion to reopen, which was denied as untimely and successive. The BIA rejected arguments that equitable tolling for ineffective assistance of counsel and changed conditions in the country of removal excused his noncompliance. The Seventh Circuit affirmed. The BIA did not abuse its discretion in finding that neither exception applied.
The court issued a subsequent related opinion or order on August 14, 2018.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-1998 RODRIGO RAMOS-BRAGA, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A 097-837-809 ____________________ ARGUED JANUARY 24, 2018 — DECIDED MAY 21, 2018 ____________________ Before BAUER, KANNE, and BARRETT, Circuit Judges. PER CURIAM. Rodrigo Ramos-Braga, a citizen of Brazil, petitions for review of the denial of his second motion to reopen proceedings on his applications for special-rule cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT). His motion was both numerically barred and untimely led with the Board of Immigration Appeals, but Ramos-Braga argued that these limits 2 No. 17-1998 should be excused under the doctrine of equitable tolling for ine ective assistance of counsel or under a statutory exception based on changed country conditions. The Board determined that neither exception applied and that the time and numerical limits therefore barred his motion. Because the Board did not abuse its discretion, we deny the petition. I. Ramos-Braga was raised in a neighborhood of São Paulo, Brazil that came to be controlled by a multi-national gang named the Primero Comando Capital (PCC). His father dealt drugs for the gang and was one of its managers, until he had a falling out with the gang’s leader. Starting when RamosBraga was 13, the PCC tried repeatedly to recruit him, but he refused to join. Unrelenting, PCC members caught RamosBraga at school and around town, physically attacked him at least ten times, and eventually threatened him with death. Initially, Ramos-Braga reported these attacks to Brazilian o cials, but local police did nothing in response and eventually, o cers would beat him when he made reports, claiming that he was a suspected gang member. At age 16 he stopped reporting his PCC encounters to police because in one instance o cers beat him until he spat blood, and he came to believe that the police were paid by the PCC to harm him. When Ramos-Braga was about 18 years old, PCC members o ered him one “last chance” to join; after he refused they assaulted him with pipes—severely injuring him and hospitalizing him for two weeks. He stopped attending college and spent months moving between homes of his family members in other parts of the city and another town. When he returned to São Paulo, a PCC member shot him from behind, putting him back in the hospital for days. No. 17-1998 3 In January 1999, three months after being shot, RamosBraga was admitted to the United States on a student visa. He eventually married a U.S. citizen, but the two had a tumultuous relationship. Ramos-Braga estimated that his wife physically abused him over 100 times. Seven years after he arrived, the Department of Homeland Security issued a Notice to Appear charging Ramos-Braga with overstaying his visa and therefore being removable under 8 U.S.C. § 1227(a)(1)(B). Ramos-Braga conceded his removability and eventually sought special-rule cancellation of removal for battered spouses and withholding of removal under 8 U.S.C. § 1231(b)(3) and CAT. While removal proceedings were pending, Ramos-Braga and his wife got into a ght. He was convicted of battery under Wisconsin law and, after he used a jailhouse phone to ask his wife not to testify, intimidation of a witness, WIS. STAT. §§ 940.19(1), 940.42. DHS added a charge that he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude. He challenged removability on this ground. At his removal hearing, Ramos-Braga testi ed about the beatings by PCC members and police o cers. He also said that the gang recruited young men and that he believed he speci cally was recruited because of something his father had done, but he did not know what. The IJ found Ramos-Braga credible but denied his applications for special-rule cancellation and withholding and ordered him removed to Brazil. To obtain special-rule cancellation, Ramos-Braga had to prove, among other things, that he had been battered by his wife and was not subject to certain disqualifying grounds of 4 No. 17-1998 removability or inadmissibility. See 8 U.S.C. § 1229b(b)(2). The IJ concluded that Ramos-Braga was disquali ed on two grounds: his convictions for battery and witness intimidation were crimes of moral turpitude, and he had been con ned in excess of ve years total for past convictions. See 8 U.S.C. §§ 1229b(b)(2)(A)(iv), 1182(a)(2)(A)(i)(I), 1182(a)(2)(B), 1227(a)(2)(A)(ii). Ramos-Braga could receive withholding of removal in two ways: either under statute or under CAT. To receive withholding of removal under statute, he had to prove that it was more likely than not that, if he were removed, he would be persecuted in Brazil on account of his membership in a particular social group. See id. § 1231(b)(3); 8 C.F.R. § 1208.16(b). The IJ concluded that Ramos-Braga su ered past persecution but presented “little proof” that this persecution was on account of his particular social group, namely his family ties to his father. Instead, “the greater weight of the evidence support[ed] the conclusion that he was persecuted because he refused the PCC’s recruitment e orts.” To merit withholding under CAT, Ramos-Braga had to demonstrate that it was more likely than not that, if removed to Brazil, he would be tortured by or with the acquiescence of a public o cial. See 8 C.F.R. § 1208.16(c)(2). The IJ determined that he did not carry his burden to prove that he was more likely than not to be tortured by either the police or PCC. Ramos-Braga, who was represented by counsel, appealed the denial of his applications for withholding but not the denial of special-rule cancellation. The Board a rmed the IJ’s decision on December 18, 2014. In January 2015, Ramos-Braga petitioned this court for review and moved to stay his removal. His attorney ended the No. 17-1998 5 representation over a fee dispute, however, and Ramos-Braga continued pro se, ling motions in this court and, after his petition was denied, another petition for review that was dismissed for lack of jurisdiction for having been led more than 30 days after the nal order of removal. Ramos-Braga, still pro se, moved the Board to reopen proceedings on his applications for relief from removal and to reconsider its dismissal order. The Board denied his motion as untimely in June 2015, but he maintains he never received notice of this decision. Ramos-Braga led a second pro se motion to reopen or reconsider on August 31, 2015, and at issue here is the Board’s denial of that motion on the grounds that it was untimely and successive. Ramos-Braga explained that his motion to reopen was late because his former attorney had promised repeatedly to le a timely motion, but he never did. He also said that conditions in Brazil had gotten worse since the hearing, and he o ered evidence to that e ect. A year later, in August 2016, Ramos-Braga retained his present attorney, who led a supplemental brief supporting the still-pending second motion to reopen. Through counsel, Ramos-Braga argued that his second motion to reopen should not have been barred because the exceptions for equitable tolling for ine ective assistance of counsel and changed conditions in the country of removal excused his noncompliance. Regarding the rst exception, Ramos-Braga said that his attorney in the original appeal to the Board had waived meritorious arguments for special-rule cancellation and withholding under CAT. The Board denied the second motion to reopen based on its conclusion that Ramos-Braga did not meet either exception. Equitable tolling could not bene t him, the Board said, 6 No. 17-1998 because he did not le his motion as soon as possible after learning of his former attorney’s alleged errors, nor was he prejudiced by any possible error. The Board also concluded that he did not o er evidence of conditions in Brazil that had changed since the removal hearing; his evidence of “ongoing” PCC threats were a “continuation” of past harms he experienced in Brazil. II Noncitizens can le just one motion to reopen immigration proceedings, and that motion must be submitted within 90 days of the nal order of removal. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i). These time and numerical limits are, however, non-jurisdictional claim-processing rules, subject to the doctrine of equitable tolling and statutory exceptions. See Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015); Ji Cheng Ni v. Holder, 715 F.3d 620, 623 (7th Cir. 2013) (citing 8 U.S.C. § 1229a(c)(7)(C)(ii)); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005). The question here is narrow: we must decide only whether the Board wrongly concluded that neither equitable tolling nor changed conditions excuse the limits on Ramos-Braga’s second motion to reopen. 1 This court reviews the Board’s denial of a motion to reopen for an abuse of discretion, and an 1 Ramos-Braga also argues that the Board wrongly denied his motion to reconsider the Board’s order dismissing his original appeal. The Board denied this motion also for being inexcusably untimely and numerically barred, see 8 U.S.C. § 1229a(c)(6)(A), (B); 8 C.F.R. § 1003.2(b)(2), without considering whether the underlying dismissal order required reconsideration. We therefore have no merits decision to review on the issue of reconsideration. No. 17-1998 7 abuse occurs if the decision lacks a “rational explanation, inexplicably depart[s] from established policies, or rest[s] on [either] an impermissible basis,” Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012), or legal error, Habib v. Lynch, 787 F.3d 826, 831 (7th Cir. 2015). A. Equitable Tolling Ramos-Braga contends that the Board wrongly refused to equitably toll the limits on his second motion to reopen his applications for special-rule cancellation and withholding of removal under CAT. Equitable tolling applies if the noncitizen demonstrates prejudice from counsel’s de cient performance and exhibits diligence by seeking relief as soon as reasonably possible. See Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir. 2017). Even if we assume the Board erred in its analysis of diligence, Ramos-Braga has failed to show that he was prejudiced by his former attorney’s errors. Ramos-Braga argues that he was prejudiced by the attorney’s failures to appeal (1) the denial of his application for special-rule cancellation and (2) the IJ’s conclusion, in denying CAT relief, that the PCC was not likely to torture him with the government’s acquiescence upon his return to Brazil. 1. Special-Rule Cancellation Ramos-Braga contends that his former attorney should have appealed the denial of special-rule cancellation and argued that he remained eligible for this relief because, contrary to the IJ’s conclusion, his battery conviction is not a crime involving moral turpitude. But Ramos-Braga overlooks the IJ’s other reason for concluding that he was ineligible for special-rule cancellation— his con nement in excess of 5 years, see 8 U.S.C. 8 No. 17-1998 §§ 1229b(b)(2)(A)(iv), 1182(a)(2)(B), on convictions for battery, witness intimidation, disorderly conduct, and multiple occasions of operating a vehicle while intoxicated. This was one reason the Board decided that Ramos-Braga was not prejudiced. The Board said this disqualifying ground could not be waived, and rested this conclusion on its statutory interpretation in Matter of Y-N-P-, 26 I. & N. Dec. 10, 17 (BIA 2012) (deciding that the only waiver applicable to special-rule cancellation is located in 8 U.S.C. § 1229b(b)(5), which excuses certain domestic-violence convictions). Two other circuits have deferred to the Board’s interpretation. See Arevalo v. U.S. Att’y Gen., 872 F.3d 1184, 1190 (11th Cir. 2017); Garcia-Mendez v. Lynch, 788 F.3d 1058, 1065 (9th Cir. 2015). Ramos-Braga has not argued that the Board’s interpretation is unreasonable. Without such an argument, the petition fails to address the Board’s conclusion that Ramos-Braga is ineligible for specialrule cancellation, even if his battery conviction is not a crime involving moral turpitude. Because Ramos-Braga would remain ineligible for specialrule cancellation even if his former attorney had raised the argument he presses now, the attorney’s omission of this argument could not have prejudiced his appeal. The Board reasonably concluded, therefore, that Ramos-Braga su ered no prejudice by his former attorney’s failure to appeal the denial of special-rule cancellation. 2. Withholding under CAT Ramos-Braga argues next that he was prejudiced in the appeal of his denied CAT application. He contends that his former attorney should have argued that the IJ failed to consider evidence that, if he is removed to Brazil, the PCC would torture him without intervention by public o cials. In denying No. 17-1998 9 the second motion to reopen, the Board said this potential error could not have prejudiced Ramos-Braga because the evidence he o ered, to the IJ originally and in support of reopening, could not establish that o cial torture or acquiescence was more likely than not. “CAT protection requires evidence that the Petitioner will be tortured by the government, or with the government’s acquiescence.” Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016). Acquiescence means “the public o cial, prior to the activity constituting torture, ha[d] awareness of such activity and thereafter breach[ed] his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7); Lopez, 810 F.3d at 493. We will reverse the Board’s conclusion that Ramos-Braga’s evidence is insu cient only if the evidence compels the conclusion that o cial acquiescence is more likely than not. See Orellana-Arias v. Sessions, 865 F.3d 476, 490 (7th Cir. 2017). Relying on our precedent in Rodriguez-Molinero v. Lynch, 808 F.3d 1134 (7th Cir. 2015), Ramos-Braga argues that there is a “substantial risk” that the Brazilian government will acquiesce to his torture by the PCC if he is removed to Brazil. But his evidence does not compel that conclusion. Ramos-Braga relies heavily on the violence he experienced at the hands of the police and the PCC when he was a teenager. Yet the fact that Ramos-Braga was beaten by police roughly twenty years ago does not show that he is likely to be tortured by o cials today. See Lopez, 810 F.3d at 493 (noting that man who stabbed petitioner twenty- ve years earlier may no longer seek to harm petitioner). Moreover, RamosBraga has o ered nothing more than his own speculation that 10 No. 17-1998 the police acted at the PCC’s urging when they attacked him. See Lhanzom v. Gonzales, 430 F.3d 833, 845 (7th Cir. 2005) (reversing IJ’s decision that rested on testimony for which witness had no personal knowledge). The evidence of his beatings by the PCC in the late 1990s is similarly stale. Even if the Brazilian government acquiesced to that violence, its conduct twenty years ago is not compelling evidence of how the government would respond to such violence today. Ramos-Braga introduced more current evidence as well. His strongest evidence is an affidavit from his mother. In 2016, his mother complained to police after PCC members, allegedly acting on a vendetta against Ramos-Braga, robbed his grandfather at home in 2015 and threatened his mother in 2016. According to Ramos-Braga’s mother, PCC members stated over the internet that they “will be waiting” for RamosBraga when he returns home. Officers in one district referred his mother to another district, which promised to investigate the 2016 threats, but the investigation has not been resolved. Ramos-Braga takes the referral of the complaint from one office to another and the lack of resolution as evidence that the police are unwilling to protect his family—and, ultimately, him—from the PCC. The PCC’s threats to Ramos-Braga’s family do offer support for his contention that the PCC is likely to torture him if he returns to Brazil. But CAT offers protection from government torture, not private conduct. Thus, Ramos-Braga cannot secure relief simply by showing a substantial risk that the PCC will torture him; he must demonstrate that there is a substantial risk that Brazilian officials will acquiesce in the torture. This is where Ramos-Braga’s claim founders. No. 17-1998 11 The police department’s response to the complaint lodged by Ramos-Braga’s mother falls far short of establishing that the police are indifferent to or complicit in the PCC’s threats to Ramos-Braga’s family. For one thing, the police promised to investigate—they neither ignored nor denied his mother’s request for help. Ramos-Braga contends that the police gave his mother the run-around, but the evidence does not support that inference. Referring a complaint from one district to another is more consistent with bureaucracy than animosity, and the fact that the investigation is not yet resolved does not mean that the police are turning a blind eye to the PCC. Again, we will only disturb the Board’s determination if substantial evidence on the record compels a contrary conclusion. When reviewing a claim that the government acquiesced to torture, we have required much more evidence of o cial complicity or corruption to satisfy that standard than RamosBraga has o ered. For example, in Rodriguez-Molinero, we granted a petition for review because the petitioner demonstrated a substantial risk that the Mexican government would acquiesce to, or even collaborate in, his torture by a drug cartel. 808 F.3d at 1138–1140. This conclusion was based on the fact that the petitioner had been previously tortured by the police at the behest of the drug cartel, as well as unchallenged expert testimony that the Mexican government is rife with corruption and helpless to prevent gang violence throughout the country. Id. at 1136–37. In Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013), we remanded a CAT claim because the IJ brushed over “extensive evidence” that police and government o cials abetted and directed a gang that posed a threat of torture to the petitioner. Id. at 266. Indeed, the International Criminal Court had “con rmed charges (a step similar to nding probable cause)” against two senior Kenyan o cials 12 No. 17-1998 for allegedly using the gang to murder thousands of citizens. Id. In Mendoza-Sanchez, 808 F.3d 1182 (7th Cir. 2015), we remanded (at the government’s request) and said that an applicant had a “strong” CAT claim because he had evidence that police o cers in Mexico routinely collaborated with and protected a nationwide gang that had targeted him. Id. at 1184– 85. A human-rights report from the State Department detailed widespread corruption of Mexican police, who, at both the city and state level, were directly involved in the activities of drug organizations by “kidnapping, extort[ing], and providing protection for, or acting directly on behalf of, organized crime and drug tra ckers.” Id. at 1184. In each of these cases, the petitioner showed that the government is utterly indi erent or downright complicit in the face of violence and torture by gangs. Ramos-Braga argues that the PCC wields similar in uence in the Brazilian government, but his evidence belies that argument. Ramos-Braga contends that the PCC has “in ltrated” the Brazilian police forces, and he o ers a news article reporting that PCC members “may have participated” in explosives trainings for police o cers in São Paulo. If gang members had in ltrated police forces, this would indeed be evidence that the government is unable to protect people targeted by the gang. See Mendoza-Sanchez, 808 F.3d at 1183, 1185. But the report Ramos-Braga o ers falls well short of showing that PCC members are within the ranks of Brazilian police. According to the report, some of the explosives training courses were offered by private contractors who failed to perform background checks––possibly allowing PCC members to register for the course without the knowledge of the São Paulo police department. Evidence of a poorly planned explosives training No. 17-1998 13 does not demonstrate that the Brazilian police have been in ltrated by the PCC. In fact, Ramos-Braga’s own evidence undermines his argument that officials and the PCC cooperate. The article about explosive trainings discloses that in 2012 the PCC frequently attacked police forces, and that the two sides committed around 200 “revenge killings” within a couple months. A 2014 article from a Brazilian newspaper shows that Brazilian officials initiated a new operation against the PCC and detained members attempting to smuggle drugs out of the country. Other reports he offered show that police have arrested dozens of PCC members and that Brazilian authorities are in a “bloody struggle” to subvert the PCC. Ramos-Braga did offer a report from the Australian government showing that some Brazilian officials were corrupt as of 2012; police officers were arrested for selling information to the PCC about investigations of the gang’s drug trafficking, while other officers extracted bribes from the PCC through kidnapping and abusing the family of PCC members. However, the report does not show, as Ramos-Braga asserts, that corrupt police physically harmed citizens to assist the PCC. Finally, Ramos-Braga presents news articles and a country report issued in 2013 by the U.S. Department of State that, taken together, show that police o cers in Brazil “routinely” kill criminal suspects, targeting men from the “slums.” These reports do not suggest police complicity with the PCC; Ramos-Braga introduces them to show that the police may target him because he is from the slums, and police in his hometown may attack him for resembling his father, a criminal. But reports that police o cers target men from the slums generally 14 No. 17-1998 is not evidence that they would torture Ramos-Braga speci cally. See Orellana-Arias, 865 F.3d at 490 (concluding that country reports of government’s acquiescence to violence against citizens was not evidence that government would acquiesce to torture of petitioner speci cally); Lopez, 810 F.3d at 493 (deciding that petitioner, a gay man, did not show threat of violence speci c to him by submitting reports that gay men have been victims of violence); Rashiah v. Ashcroft, 388 F.3d 1126, 1133 (7th Cir. 2004) (concluding that CAT relief was unavailable to applicant who o ered country report describing instances of torture but no evidence that he would be speci cally targeted). Twenty years ago police o cers knew RamosBraga lived in the slums and suspected he was a criminal, but there is no evidence that these o cers remain with the force or that they would recognize him today. In sum, Ramos-Braga’s past experiences are troubling, but his evidence does not compel the conclusion that Brazilian of cials today would torture him or permit the PCC to do so. Thus we will not disturb the Board’s conclusion that RamosBraga o ered insu cient evidence of o cial acquiescence. And because Ramos-Braga’s evidence is insu cient, he was not prejudiced by any possible attorney error in the appeal of his CAT application. The Board therefore did not abuse its discretion in deciding that equitable tolling did not apply to Ramos-Braga’s second motion to reopen. B. Changed Conditions Ramos-Braga also contends that changed conditions in Brazil warrant reopening his applications for withholding of No. 17-1998 15 removal. 2 No time or numeric limits apply to a motion to reopen that is based on “changed circumstances arising … in the country to which deportation has been ordered.” 8 C.F.R. § 1003.2(c)(3)(ii). For this exception to apply, Ramos-Braga needs evidence of a changed country condition that is “material and was not available and could not have been discovered or presented” at the removal hearing. See id.; Ji Cheng Ni, 715 F.3d at 623. This court’s task is to determine whether the Board abused its discretion in deciding that changed country conditions do not excuse the limits on Ramos-Braga’s motion to reopen. See Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007). We conclude that the Board did not abuse its discretion. To show that conditions in Brazil have changed, RamosBraga offered evidence that: (1) the PCC has “marked” him to die because the gang’s leader believes his brother and two cousins were killed by Ramos-Braga’s father in 1997; (2) the PCC has “barbarically murdered” eight of Ramos-Braga’s cousins, most recently in 2013; (3) the PCC has offered a reward for Ramos-Braga’s whereabouts; (4) after the PCC learned that Ramos-Braga might return to Brazil, they robbed his grandfather at home using a gun in 2015 and threatened his mother over the internet in 2016; (5) one police district referred his mother’s request to investigate the 2016 threats, and the other district promised to investigate the threats, but the investigation has not been resolved; and (6) Brazilian police 2 Ramos-Braga also incorporates into his withholding arguments his view that changed conditions in Brazil warrant reopening proceedings so that he can apply for asylum. But the Board never had an opportunity to consider arguments related to asylum because Ramos-Braga did not develop them in his motion to reopen at issue here. We therefore express no opinion on this portion of his petition. 16 No. 17-1998 have routinely committed extrajudicial killings of men from the slums whom they suspect to be criminals. 1. Withholding under CAT Pertaining to his CAT application, Ramos-Braga argues that the PCC’s recent growth and threats are a changed condition that the Board “irrationally” discounted as a “continuation” of dangers that he previously experienced in Brazil. He relies on an out-of-circuit decision, Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004), in which the Ninth Circuit said “changed circumstances will almost always relate to [an] initial claim …. The critical question is … whether circumstances have changed su ciently that a petitioner who previously did not have a legitimate claim … now has a well-founded” claim. Id. at 945. A worsening PCC threat is, however, immaterial to whether Ramos-Braga’s CAT application must be reopened. As discussed above, he needed but failed to o er evidence that compels nding that Brazilian o cials would acquiesce to his torture by the PCC. Ramos-Braga also argues that the Board ignored new evidence that he would face torture directly from public officials if he is removed to Brazil. He again points to the recent news articles reporting that Brazilian police have targeted men from the slums and criminal suspects for extrajudicial killings. He stresses that police in his hometown beat him, possibly suspecting he was a criminal because he lived in the slums. He says that his evidence, together, establishes a substantial likelihood that police officers will torture him. The Board, while considering Ramos-Braga’s argument for equitable tolling, said that the evidence he offered—initially and with his second motion to reopen—did not show that officials were more likely than not to torture him. No. 17-1998 17 We will reverse the Board’s conclusion that RamosBraga’s evidence is insufficient only if the evidence compels a contrary conclusion. See Lopez, 810 F.3d at 492–93. As explained above, the articles Ramos-Braga recently offered do not compel the conclusion that public officials are more likely than not to torture him. We have said that reports that officials have tortured members of a certain group do not necessarily demonstrate that a petitioner who belongs to that group would face a substantial risk of torture if removed. Bernard v. Sessions, 881 F.3d 1042, 1047–48 (7th Cir. 2018). To show a risk specific to him, Ramos-Braga needed evidence that Brazilian police would recognize him as part of the groups targeted for torture. See Lopez, 810 F.3d at 493; Rashiah, 388 F.3d at 1133. Yet he offered no evidence that Brazilian police today would suspect him of crime or would know, roughly twenty years later, that he lived in the slums in 1998. To the extent he fears police torture because he would be forced to live in the slums if removed to Brazil, this fear of generalized violence is insufficient to establish that he in particular is more likely than not to be tortured. See Lozano-Zuniga v. Lynch, 832 F.3d 822, 830– 31 (7th Cir. 2016). Because Ramos-Braga did not present evidence that conditions in Brazil have changed such that he now may have a CAT claim, the Board did not abuse its discretion in denying his motion to reopen proceedings on that form of relief. 2. Withholding under Statute Ramos-Braga next argues that changed conditions in Brazil excuse the limits on his motion to reopen his application for withholding under statute, but again he is wrong. He rst points to new evidence that the PCC’s intent to kill him stems from the gang leader’s desire to avenge the murders of his 18 No. 17-1998 family members. But this motive has not changed since the killings of the gang leader’s family in 1997, well before the 2014 removal hearing, and thus the motivation, though recently discovered, is not a changed condition. Second, Ramos-Braga argues that the PCC’s o er of a reward for his whereabouts is a changed condition, but he has not carried his evidentiary burden. To show that the reward o er is a changed condition, Ramos-Braga needed evidence that the o er was made after the removal hearing. See Xiu Zhen Lin v. Mukasey, 532 F.3d 596, 596–97 (7th Cir. 2008). In his petition he sidesteps his burden and contends the Board speculated that the reward o er might date back to 1998. But that is not what the Board said; it observed that the gang’s intent to harm him dated that far back and said that no evidence, including an a davit from his mother’s neighbor who reported the reward o er, showed the o er was made after the removal hearing. Instead of clarifying when the reward was o ered, Ramos-Braga says that the o er could not be from 1998 because the neighbor learned of it through her 19-yearold son, a current PCC member who would have been an infant then. But this reasoning is awed; the o er may have been old when the neighbor’s son learned of it. As di cult as it might have been for Ramos-Braga to gather evidence while detained, he has never represented that he exhaustively investigated when this o er was made. Last, Ramos-Braga disputes the Board’s conclusion that recent dangers posed by the PCC are a continuation of conditions that existed before the removal hearing. Although worsening conditions in the country of removal may constitute a change that requires reopening, see id.; Ji Cheng Ni, 715 F.3d at 627; Mekhael v. Mukasey, 509 F.3d 326, 327 (7th Cir. 2007), No. 17-1998 19 the PCC’s recent threats, robbery, and murders are immaterial to whether Ramos-Braga’s application for withholding under statute should be reopened. The IJ denied this application not for lack of evidence of past persecution, but because Ramos-Braga did not establish a nexus between his likely persecution by the PCC and his particular social group. Thus to present evidence that conditions have degenerated so that he now has a claim for withholding under statute, Ramos-Braga needed to show a change related to this nexus between the PCC’s persecution and his social group based on ties to his father. He did present newly found evidence of the PCC’s motive for harming him, but again, that motive has not changed since 1997. In sum, Ramos-Braga failed to o er new, material evidence that conditions in Brazil have changed since the removal hearing. III The Board did not abuse its discretion by denying RamosBraga’s second motion to reopen as numerically barred and untimely. Ramos-Braga neither experienced prejudice from his former attorney’s potential errors nor presented new, material evidence that conditions in Brazil have changed since the removal hearing. Accordingly, the petition for review is DENIED.
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