Jose Penado v. Todd Blanche

── Jose Penado v. Todd Blanche ── Court: Court of Appeals for the Ninth Circuit Date: April 23, 2026 Category: General FILED NOT FOR PUBLICATION APR 23 2026 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE MARCELO PENADO, No. 19-72825 Petitioner, Agency Nos. A094-450-410 v. MEMORANDUM* TODD BLANCHE, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals* Submitted April 21, 2026** San Francisco, California Before: S.R. THOMAS, CHRISTEN, and FORREST, Circuit Judges Jose Marcelo Penado, native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. Because the parties are familiar with * 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 factual and procedural history of the case, we need not recount it here. We deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252. “Our review is limited to those grounds explicitly relied upon by the BIA. Where the BIA writes its own decision, as it did here, we review the BIA’s decision, except to the extent it expressly adopts the IJ’s decision.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1075-76 (9th Cir. 2020) (brackets and internal citations omitted). “We review the agency’s factual findings, including credibility determinations, for substantial evidence.” Dong v. Garland, 50 F.4th 1291, 1296 (9th Cir. 2022). I The agency did not err in determining that Penado was ineligble for asylum because he failed to timely file his application within one year of arrival to the United States or establish that the changed circumstances exception applied. 8 U.S.C. § 1158(a)(2)(B), (D). We have jurisdiction to review the BIA’s determination under § 1158(a)(2)(D) that “changed circumstances” do not excuse untimely filing as a mixed question of law and fact, which we review for substantial evidence. See Ruiz v. Bondi, 163 F.4th 586, 595, 599 (9th Cir. 2025).1 1 Although Ruiz, 163 F.4th at 599, discussed jurisdiction as to whether the “extraordinary circumstances” exception to untimely filing applied, “changed circumstances” appears in the same statutory section and prior case law treats the two exceptions as “parallel issue[s].” Husyev v. Mukasey, 528 F.3d 1172, 1180 (9th Cir. 2008). 2 Most instances that Penado identifies as “changed circumstances” occurred between 2005 and 2015, so even if they constituted material changed circumstances, the BIA’s conclusion that Penado’s asylum application was not filed within a reasonable time of the changed circumstances is supported by substantial evidence. See Al Ramahi v. Holder, 725 F.3d 1133, 1135 (9th Cir. 2013) (recognizing that a delay six months or longer after the changed circumstance is ordinarily unreasonable). The BIA’s conclusion that the two instances in 2016, a threat relayed to Penado and his cousin’s death, do not constitute changed circumstances because they did not “materially affect[] [his] eligibility for asylum” is supported by substantial evidence. 8 C.F.R. § 1208.4(a)(4)(i).