Constanza v. Holder
647 F.3d 749
| 8th Cir. | 2011Background
- Constanza, a native and citizen of El Salvador, arrives in the U.S. circa Nov. 1997, not admitted or paroled after inspection.
- He is granted Temporary Protected Status in 2002.
- In Dec. 2009, Constanza is convicted of domestic assault by strangulation and placed on probation.
- On Feb. 2, 2010, DHS charges removability for lack of admission/parole and for a crime involving moral turpitude; he concedes the former and contests the latter.
- An IJ denies asylum, withholding, and CAT relief, finding no cognizable social groups or well-founded fear; timeliness and government acquiescence issues are also unresolved.
- The BIA independently affirms, upholding the IJ’s findings and denying all relief; Constanza petitions for review to the Eighth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Constanza’s proposed social groups are cognizable | Constanza argues groups are sufficiently particular. | MS-13 resistance and family-based groups are too broad. | Not cognizable; groups too broad/indeterminate. |
| Whether Constanza has a well-founded fear or past persecution | Fears persecution due to gang membership and familial connections. | Record shows no past persecution or well-founded fear tied to cognizable group. | No substantial evidence of past persecution or well-founded fear. |
| Whether asylum was timely filed | El Salvador's failure to protect constitutes country-wide torture threat. | Challenge to factual findings; no reviewable error. | CAT denial affirmed; lacks reviewable error. |
| What is the proper scope of judicial review | Review limited to BIA decision; some issues barred by jurisdiction. |
Key Cases Cited
- INS v. Stevic, 467 U.S. 407 (1984) (clear probability standard for withholding of removal; extreme persecution concept)
- Davila-Mejia v. Mukasey, 531 F.3d 624 (8th Cir. 2008) (statutory/regulatory interpretation with deference to BIA findings)
- S-E-G-, Matter of, 24 I. & N. Dec. 579 (BIA 2008) (concepts of social groups; particularity and visibility)
- Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011) (limits on applying social group theory to gang affiliation)
- Larios v. Holder, 608 F.3d 105 (1st Cir. 2010) (role of social group particularity in asylum)
- Lushaj v. Holder, 380 Fed.Appx. 41 (2d Cir. 2010) (social group requirements in asylum context)
- Barrios v. Holder, 581 F.3d 849 (9th Cir. 2009) (definitional limits on protection for social groups)
- Marroquin-Ochoma v. Holder, 574 F.3d 574 (8th Cir. 2009) (resistance to gang recruitment not a protected political opinion)
- Chak Yiu Lui v. Holder, 600 F.3d 980 (8th Cir. 2010) (review framework for BIA decisions; per se jurisdictional considerations)
- Sultani v. Gonzales, 455 F.3d 878 (8th Cir. 2006) (exhaustion of administrative remedies governs review scope)
- Mocevic v. Mukasey, 529 F.3d 814 (8th Cir. 2008) (limits on review of criminal alien removals)