Rodrigo Ramos-Braga v. Jefferson B. Sessions III, No. 17-1998 (7th Cir. 2018)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 21, 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 AMENDED AUGUST 14, 2018 ____________________ Before BAUER, KANNE, and BARRETT, Circuit Judges. PER CURIAM. Rodrigo Ramos Braga, a citizen of Brazil, pe titions 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 nu 2 No. 17 1998 merically barred and untimely led with the Board of Immi gration Appeals, but Ramos Braga argued that these limits should be excused under the doctrine of equitable tolling for ine ective assistance of counsel or under a statutory excep tion based on changed country conditions. The Board deter mined 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 Ramos Braga was 13, the PCC tried repeatedly to recruit him, but he refused to join. Unrelenting, PCC members caught Ramos Braga at school and around town, physically attacked him at least ten times, and eventually threatened him with death. In itially, 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 re porting 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 Ra mos 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, No. 17 1998 3 a PCC member shot him from behind, putting him back in the hospital for days. In January 1999, three months after being shot, Ramos Braga was admitted to the United States on a student visa. He eventually married a U.S. citizen, but the two had a tumultu ous relationship. Ramos Braga estimated that his wife physi cally 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 un der 8 U.S.C. § 1227(a)(1)(B). Ramos Braga conceded his re movability and eventually sought special rule cancellation of removal for battered spouses and withholding of removal un der 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 un der 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 remov able under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been con victed of two crimes involving moral turpitude. He chal lenged 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 cancella tion and withholding and ordered him removed to Brazil. 4 No. 17 1998 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 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 withhold ing of removal under statute, he had to prove that it was more likely than not that, if he were removed, he would be perse cuted 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 fa ther. 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 tor tured by either the police or PCC. No. 17 1998 5 Ramos Braga, who was represented by counsel, appealed the denial of his applications for withholding but not the de nial 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 re view and moved to stay his removal. His attorney ended the representation over a fee dispute, however, and Ramos Braga continued pro se, ling motions in this court and, after his pe tition was denied, another petition for review that was dis missed 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 pro ceedings on his applications for relief from removal and to re consider its dismissal order. The Board denied his motion as untimely in June 2015, but he maintains he never received no tice of this decision. Ramos Braga led a second pro se motion to reopen or re consider 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 con ditions 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 sup plemental brief supporting the still pending second motion to reopen. Through counsel, Ramos Braga argued that his sec ond 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 6 No. 17 1998 excused his noncompliance. Regarding the rst exception, Ra mos 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 excep tion. Equitable tolling could not bene t him, the Board said, 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 experi enced in Brazil. II. Noncitizens can le just one motion to reopen immigra tion 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 No. 17 1998 7 second motion to reopen.1 This court reviews the Board’s de nial of a motion to reopen for an abuse of discretion, and an abuse occurs if the decision lacks a “rational explanation, in explicably depart[s] from established policies, or rest[s] on [ei ther] 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 dili gence, 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 de nial 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 Ramos Braga also argues that the Board wrongly denied his motion to reconsider the Board’s order dismissing his original appeal. The Board de nied 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 reconsider ation. We therefore have no merits decision to review on the issue of re consideration. 8 No. 17 1998 1. Special Rule Cancellation Ramos Braga contends that his former attorney should have appealed the denial of special rule cancellation and ar gued that he remained eligible for this relief because, contrary to the IJ’s conclusion, his Wisconsin battery conviction is not a crime involving moral turpitude. But, as the Board determined in denying the motion to re open, this battery conviction was a crime involving moral tur pitude under the law as it existed when Ramos Braga ap pealed in December 2014. Speci cally, the Board concluded that Ramos Braga’s battery conviction with a domestic abuse enhancement, WIS. STAT. §§ 940.19(1), 973.055(1)(a), was properly classi ed by the IJ as a crime involving moral turpi tude under Matter of Silva Trevino, 24 I. & N. Dec. 687 (2008) (Silva Trevino I). The Board observed that Silva Trevino I was still “controlling” when Ramos Braga’s former attorney ap pealed from the removal order, and thus Ramos Braga was not prejudiced by the failure to appeal on this ground.2 Ramos Braga contends that his former attorney should have argued on appeal to the Board that the IJ misapplied Silva Trevino I. But the IJ’s analysis was proper. Silva Trevino I established a three step framework for determining whether an alien’s conviction involved moral turpitude. First, the IJ had to decide whether there was a “realistic probability” that the criminal statute might be applied to punish conduct that 2 Silva Trevino I was vacated by the Attorney General, Matter of Silva Tre vino, 26 I. & N. Dec. 550, 553 (2015) (Silva Trevino II), and the Board has now adopted the categorical approach as de ned in Descamps v. United States, 570 U.S. 254 (2013), see Matter of Silva Trevino, 26 I. & N. Dec. 826, 830–31 (BIA 2016) (Silva Trevino III). No. 17 1998 9 involves moral turpitude. If so, the IJ was next required to look to the record of conviction—the indictment, judgment, jury instructions, guilty plea, or plea transcript—to determine if the conviction actually involved moral turpitude. And nally, if the record of conviction did not answer this question, the IJ had to inquire into the facts of the prior o ense by look ing to “any evidence, otherwise admissible in removal pro ceedings.” Silva Trevino I, 24 I. & N. Dec. at 698, 704; Sanchez v. Holder, 757 F.3d 712, 717–18 (7th Cir. 2014). The IJ here, at the last step, looked to a police statement attached to the crim inal complaint and determined that Ramos Braga had com mitted a crime involving moral turpitude because he inten tionally caused bodily harm to his wife. See Matter of Sanudo, 23 I. & N. Dec. 968, 971–72 (BIA 2006). Ramos Braga asserts that the IJ should not have proceeded past step one, because the Wisconsin battery statute under which he was convicted was not “divisible,” meaning it con tained only a single set of elements to prove. See Descamps v. United States, 570 U.S. 254, 257 (2013). But Silva Trevino I did not permit the IJ to end the inquiry by nding the statute in divisible; instead, it required the IJ to proceed to step two if the statute “encompasses both conduct that involves moral turpitude and conduct that does not.” 24 I. & N. Dec. at 698– 99. Ramos Braga does not contest the IJ’s conclusion that a Wisconsin battery conviction with a domestic abuse enhance ment reaches conduct that involves moral turpitude. Hence, Silva Trevino I required the IJ to proceed past step one. Still, Ramos Braga says that Descamps, a Supreme Court criminal sentencing case, required a categorical approach that precluded the IJ from looking past an indivisible battery stat ute to decide whether his crime involved moral turpitude. 10 No. 17 1998 570 U.S. at 257–58. But Descamps did not overrule Silva Tre vino I, which set forth in unequivocal terms the framework that the Attorney General required IJs to follow when decid ing if a conviction involved moral turpitude. Furthermore, Silva Trevino I considered the categorical approach applied in criminal cases like Descamps and did not nd a compelling need for this approach in the immigration context. See Silva Trevino I, 24 I. & N. Dec. at 700 (“[T]he rationale for the lim its … on factual inquiries in criminal sentencing cases does not carry over to the immigration question” required under the immigration statute.). Unlike the categorical approach in Descamps, Silva Trevino I instructed IJs to proceed to step two: “If it appears that the government in question would apply its criminal statute to reach both turpitudinous and non turpi tudinous acts—perhaps because the statute is divisible, but also because the statute could realistically cover a wide range of conduct.” Sanchez, 757 F.3d at 717 (emphasis supplied). Alt hough the Attorney General’s new approach to determining a crime of moral turpitude adopts the categorical approach outlined by Descamps, the IJ was not permitted to ignore the Attorney General’s then controlling decision by anticipating this change in the law. The IJ was bound by Silva Trevino I and the case law of our circuit. Mata Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010); Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008). Ramos Braga also argues that the IJ erred at step three of Silva Trevino I by ignoring evidence in the police statement that he was the victim, not the aggressor. But the IJ noted the police statement included Ramos Braga’s story that he was eeing from his wife and accidentally struck her face with the door. Instead, the IJ credited the wife’s version, also in the po lice statement, that Ramos Braga struck her face with his hand No. 17 1998 11 and pushed her into a shelf, causing her nose and lip to swell, bruise, and bleed. Thus, the IJ did not ignore evidence. Because Silva Trevino I still applied when Ramos Braga appealed to the Board, he was not prejudiced by the lack of a challenge to the IJ’s classi cation of his battery conviction in denying special rule cancellation. If his attorney had raised the argument he presses now, the Board would have rejected it, as it reasonably did in denying the motion to reopen. 2. Withholding under CAT Ramos Braga argues next that he was prejudiced in the ap peal of his denied CAT application. He contends that his for mer attorney should have argued that the IJ failed to consider evidence that, if he is removed to Brazil, the PCC would tor ture him without intervention by public o cials. In denying the second motion to reopen, the Board said this potential er ror could not have prejudiced Ramos Braga because the evi dence he o ered, to the IJ originally and in support of reopen ing, 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 ac quiescence.” 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 inter vene 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 12 No. 17 1998 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 ac quiesce 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 teen ager. 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, Ramos Braga has o ered nothing more than his own speculation that the police acted at the PCC’s urging when they attacked him. See Lhanzom v. Gonzales, 430 F.3d 833, 845 (7th Cir. 2005) (re versing IJ’s decision that rested on testimony for which wit ness had no personal knowledge). The evidence of his beat ings 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 gov ernment 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, al legedly 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 Ramos No. 17 1998 13 Braga 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 of fice 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 sup port for his contention that the PCC is likely to torture him if he returns to Brazil. But CAT offers protection from govern ment 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 sub stantial risk that Brazilian officials will acquiesce in the tor ture. This is where Ramos Braga’s claim founders. 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 an other 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 conclu sion. 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 Ramos 14 No. 17 1998 Braga has o ered. For example, in Rodriguez Molinero, we granted a petition for review because the petitioner demon strated a substantial risk that the Mexican government would acquiesce to, or even collaborate in, his torture by a drug car tel. 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 govern ment 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 for allegedly using the gang to murder thousands of citizens. Id. In Mendoza Sanchez, 808 F.3d 1182 (7th Cir. 2015), we re manded (at the government’s request) and said that an appli cant had a “strong” CAT claim because he had evidence that police o cers in Mexico routinely collaborated with and pro tected 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 provid ing 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 gov ernment is utterly indi erent or downright complicit in the face of violence and torture by gangs. Ramos Braga argues No. 17 1998 15 that the PCC wields similar in uence in the Brazilian govern ment, 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 re port 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 of fered by private contractors who failed to perform back ground 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 does not demonstrate that the Brazilian police have been in ltrated by the PCC. In fact, Ramos Braga’s own evidence undermines his ar gument 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 offi cials 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 doz ens 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 16 No. 17 1998 arrested for selling information to the PCC about investiga tions of the gang’s drug trafficking, while other officers ex tracted 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; Ra mos 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 re ports that police o cers target men from the slums generally is not evidence that they would torture Ramos Braga speci cally. See Orellana Arias, 865 F.3d at 490 (concluding that coun try 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 (de ciding that petitioner, a gay man, did not show threat of vio lence 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 unavaila ble to applicant who o ered country report describing in stances of torture but no evidence that he would be speci cally targeted). Twenty years ago police o cers knew Ramos Braga 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. No. 17 1998 17 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 Ramos Braga 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 dis cretion in deciding that equitable tolling did not apply to Ra mos 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 removal. 3 No time or numeric limits apply to a motion to re open 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 “mate rial 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 3 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 con sider arguments related to asylum because Ramos Braga did not develop them in his motion to reopen at issue here. We therefore express no opin ion on this portion of his petition. 18 No. 17 1998 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, Ramos Braga 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 re ward 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 re ferred 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 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 con dition that the Board “irrationally” discounted as a “continu ation” 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, imma terial to whether Ramos Braga’s CAT application must be re No. 17 1998 19 opened. As discussed above, he needed but failed to o er ev idence that compels nding that Brazilian o cials would ac quiesce to his torture by the PCC. Ramos Braga also argues that the Board ignored new evi dence 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 kill ings. He stresses that police in his hometown beat him, possi bly suspecting he was a criminal because he lived in the slums. He says that his evidence, together, establishes a sub stantial likelihood that police officers will torture him. The Board, while considering Ramos Braga’s argument for equi table 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. We will reverse the Board’s conclusion that Ramos Braga’s evidence is insufficient only if the evidence compels a contrary conclusion. See Lopez, 810 F.3d at 492–93. As ex plained 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 20 No. 17 1998 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 insuf ficient 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 con ditions 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 Bra zil 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 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 re cently discovered, is not a changed condition. Second, Ramos Braga argues that the PCC’s o er of a re ward 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 spec ulated 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, No. 17 1998 21 including an a davit from his mother’s neighbor who re ported 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 year old son, a current PCC member who would have been an in fant 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 inves tigated 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 condi tions that existed before the removal hearing. Although wors ening 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), the PCC’s recent threats, robbery, and murders are immate rial to whether Ramos Braga’s application for withholding under statute should be reopened. The IJ denied this applica tion not for lack of evidence of past persecution, but because Ramos Braga did not establish a nexus between his likely per secution 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 mo tive for harming him, but again, that motive has not changed since 1997. 22 No. 17 1998 In sum, Ramos Braga failed to o er new, material evi dence that conditions in Brazil have changed since the re moval hearing. III. The Board did not abuse its discretion by denying Ramos Braga’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, ma terial evidence that conditions in Brazil have changed since the removal hearing. Accordingly, the petition for review is DENIED.
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