12-2278 Saravia v. Holder BIA Abrams, IJ A094 099 666 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 11th day of September, two thousand thirteen. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 LUIS A. SARAVIA, AKA LUIS ANTONIO 14 SARAVIA OLIVO, 15 Petitioner, 16 17 v. 12-2278 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 23 24 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New 25 York. 26 27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy 28 Assistant Attorney General; Francis 29 W. Fraser, Senior Litigation 30 Counsel; Christina J. Martin, Trial 1 Attorney, Office of Immigration 2 Litigation, United States Department 3 of Justice, Washington, D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DISMISSED in part and DENIED in part. 9 Luis A. Saravia, a native and citizen of El Salvador, 10 seeks review of a May 11, 2012, decision of the BIA 11 affirming the June 21, 2010, decision of Immigration Judge 12 (“IJ”) Steven R. Abrams, which denied his application for 13 special rule cancellation of removal under the Nicaraguan 14 Adjustment and Central American Relief Act, Pub.L.No. 105- 15 100, 111 Stat. 2160 amended by Pub.L.No. 105-139, 111 Stat. 16 2644 (codified as amended in scattered sections of 8 C.F.R. 17 §1240), (“NACARA”) for lack of hardship, and denied his 18 applications for asylum, withholding of removal, and for 19 relief under the Convention Against Torture (“CAT”) because 20 of changed circumstances, namely that the civil war in El 21 Salvador had ended. In re Luis A. Saravia, No. A094 099 666 22 (B.I.A. May 11, 2012), aff’g No. A094 099 666 (Immig. Ct. 23 N.Y. City June 21, 2010). We assume the parties’ 24 familiarity with the underlying facts and procedural history 25 in this case. 2 1 I. ABC Class Membership 2 Saravia alleges he is a class member under the American 3 Baptist Churches v. Thornburgh (“ABC”), 760 F. Supp. 796 4 (N.D. Cal. 1991), settlement agreement and was thus entitled 5 to a de novo asylum interview with the United States 6 Citizenship and Immigration Service (“USCIS”). Because the 7 IJ properly continued proceedings to allow Saravia to pursue 8 an interview with USCIS, Saravia has identified no error in 9 the agency’s decision. See 8 C.F.R. § 1240.70(f)(2). To 10 the extent Saravia wishes to challenge USCIS’s denial of an 11 interview, the correct course of action is to appeal the 12 USCIS decision to the federal district court. ABC, 760 F. 13 Supp. at 810 (¶ 35) (stating that individual class members 14 are “entitled to seek enforcement of the provisions hereof 15 by initiating a separate proceeding in any federal district 16 court”). 17 Moreover, Saravia has not been deprived of due process 18 as he was provided an opportunity to present his asylum 19 claim before the IJ and BIA. See ABC, 760 F. Supp. at 822 20 (“The purpose of the interviews of ABC class members is to 21 provide these asylum applicants with an opportunity to fully 22 present their claims for asylum without regard to any prior 3 1 decision regarding their claim.”); see also 8 C.F.R. 2 § 1240.70(f)(2) (providing that where result of USCIS 3 interview is denial of asylum, an applicant may proceed 4 before an IJ). Saravia has not argued how the failure to 5 first have an ABC asylum interview damaged his chance of 6 obtaining asylum. See generally Garcia-Villeda v. Mukasey, 7 531 F.3d 141, 149 (2d Cir. 2008) (finding no due process 8 violation when the petitioner could not demonstrate 9 prejudice). 10 II. NACARA/Special Rule Cancellation 11 Pursuant to 8 U.S.C. § 1252(a)(2)(B)(I), we lack 12 jurisdiction to review the denial of special rule 13 cancellation of removal. See also NACARA, § 203(a)(1). We 14 retain jurisdiction, however, to review constitutional 15 claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). The 16 only question of law Saravia raises is whether he was 17 entitled to a presumption of hardship. 18 As an ABC class member, Saravia was eligible for 19 special cancellation of removal. 8 C.F.R. §§ 1240.61, 20 1240.66. Because of his criminal conviction, however, he 21 was subject to the heightened standards under 8 C.F.R. 22 § 1240.66(c). Although a presumption of “extreme hardship” 4 1 exists for ABC class members, see 8 C.F.R. § 1240.64(d), the 2 presumption does not apply to applicants like Saravia who 3 are inadmissible based on criminal convictions and are 4 required to show “exceptional and extremely unusual 5 hardship.” See Gonzalez-Ruano v. Holder, 662 F.3d 59, 61 6 (1st Cir. 2011). (“[An] applicant [for relief under 8 C.F.R 7 § 1240.66©] loses the benefit of the presumption under the 8 hardship prong.” (citing 8 C.F.R. § 1240.64(d))). Because 9 the agency applied the proper hardship standard, and we lack 10 jurisdiction to further review the merits of the hardship 11 determination, we dismiss this part of the petition for lack 12 of jurisdiction. See Barco-Sandoval v. Gonzales, 516 F.3d 13 35, 39-40 (2d Cir. 2008). 14 III. Asylum, Withholding, and CAT 15 With respect to asylum, Saravia argues the agency 16 failed to afford him the proper presumptions and to consider 17 all his evidence. Even assuming we retain jurisdiction to 18 review his arguments, see 8 U.S.C. § 1252(a)(2)© & (D), they 19 are without merit. See Ivanishvili v. U.S. Dep’t of 20 Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006). 21 Saravia argues that the IJ failed to make credibility 22 and past persecution findings, and failed to accord him a 23 presumption of a well-founded fear of persecution based on 5 1 his demonstration of past-persecution. However, the IJ 2 assumed both credibility and past persecution were 3 established, as he concluded that the government had 4 demonstrated changed country conditions in El Salvador, an 5 analysis which necessarily presumes credible testimony and 6 past persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(A). 7 Because Saravia did not allege that the Salvadoran 8 government was now looking for him, and the harm he suffered 9 due to the civil war was the sole basis for his claim, the 10 end of the war constituted a change in circumstances such 11 that he no longer had a well-founded fear. See Melgar de 12 Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (citing to 13 State Department Reports on El Salvador for the proposition 14 that “since the signing of the peace accords in January 15 1992, the country’s political and social conditions have 16 materially changed.”). 17 Saravia also argues that the death of his sister and 18 his father’s assault are sufficient examples of harm to 19 rebut the showing of changed circumstances and establish a 20 well-founded fear. However, the agency correctly noted that 21 Saravia was unable to establish any political motive for his 22 sister’s killing, and failed to demonstrate that his father 23 was attacked and robbed for anything other than financial 6 1 gain. See Melgar de Torres, 191 F.3d at 314 & n.3 (noting 2 that “general crime conditions are not a stated ground [for 3 asylum]” and “[g]eneral violence in El Salvador does not 4 constitute persecution”). Because Saravia’s claims are all 5 based on the same factual predicate, and he was unable to 6 meet the lower burden for asylum, he necessarily is unable 7 to meet the higher standard required for withholding of 8 removal or CAT relief. See Gomez v. INS, 947 F.2d 660, 665 9 (2d Cir. 1991). 10 For the foregoing reasons, the petition for review is 11 DISMISSED in part and DENIED in part. As we have completed 12 our review, petitioner’s pending motion for a stay of 13 removal is DENIED as moot. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 7