13-329
Cruz v. Holder
BIA
Verrillo, IJ
A094 434 642
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 13th day of March, two thousand fourteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 SAMUEL CRUZ,
14 Petitioner,
15
16 v. 13-329
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Milagros S. Cruz, Hartford, CT.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; William C. Minick, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Samuel Cruz, a native and citizen of El Salvador, seeks
6 review of a January 4, 2013, order of the BIA affirming the
7 April 6, 2011, decision of an Immigration Judge (“IJ”) which
8 pretermitted his asylum application and denied his
9 applications for withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Samuel Cruz, No.
11 A094 434 642 (B.I.A. Jan. 4, 2013), aff’g No. A094 434 642
12 (Immig. Ct. N.Y. City Apr. 6, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 I. Asylum
21 Cruz argues that he established changed and
22 extraordinary circumstances excepting his asylum application
2
1 from the one-year filing deadline. We lack jurisdiction to
2 review the pretermission of Cruz’s asylum application
3 because he fails to raise a colorable constitutional claim
4 or question of law. 8 U.S.C. § 1158(a)(2)(B), (3).
5 II. Withholding of Removal
6 The agency reasonably found that Cruz failed to
7 establish that he would be persecuted on account of his
8 membership in a particular social group, which he defines as
9 U.S. deportees perceived to be wealthy. To establish
10 eligibility for withholding of removal based on a social
11 group, an applicant must establish both that the group
12 itself was cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d
13 70, 73 (2d Cir. 2007), and that his membership in that
14 group, and not some other factor, is a central reason why he
15 was or will be targeted for persecution, see Matter of C-T-
16 L-, 25 I. & N. Dec. 341, 344-46 (BIA 2010) (extending the
17 “one central reason” standard to withholding of removal).
18 Harm motivated purely by wealth is not persecution. See
19 Ucelo-Gomez, 509 F.3d at 73. Contrary to Cruz’s argument,
20 the IJ was not required to consider the specific
21 circumstances of El Salvador because, as a matter of law, a
22 social group is insufficiently particular or socially
3
1 visible when the defining characteristic of its members is
2 their perceived wealth. See id.
3 Cruz also argues for the first time that he established
4 a likelihood of persecution based on gang members’ belief
5 that he shared a friend’s anti-gang opinion. However, he
6 failed to exhaust that argument before the agency, and we
7 therefore do not reach it. See Lin Zhong v. U.S. Dep’t of
8 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
9 III. CAT Relief
10 Cruz argues that the IJ erred by determining that gang
11 violence did not constitute torture and in denying CAT
12 relief on that basis. To the contrary, the IJ considered
13 the evidence of gang violence, but reasonably concluded that
14 Cruz did not establish a likelihood of torture, particularly
15 in light of his testimony that his family remained unharmed
16 in El Salvador. See 8 C.F.R. §§ 1208.16(c), 1208.17
17 (requiring a showing of a likelihood of torture); Melgar de
18 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding
19 that where alien’s similarly situated relatives continued to
20 live in alien’s native country, claim of future fear of harm
21 was diminished).
22
4
1 For the foregoing reasons, the petition for review is
2 DISMISSED to the extent it challenges the pretermission of
3 Cruz’s asylum application and DENIED regarding withholding
4 of removal and CAT relief. As we have completed our review,
5 any stay of removal that the Court previously granted in
6 this petition is VACATED, and any pending motion for a stay
7 of removal in this petition is DISMISSED as moot. Any
8 pending request for oral argument in this petition is DENIED
9 in accordance with Federal Rule of Appellate Procedure
10 34(a)(2), and Second Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
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