558 F. App'x 104
2d Cir.2014Background
- Samuel Cruz, a native and citizen of El Salvador, petitions for review of a BIA decision affirming an IJ ruling.
- The IJ pretermitted Cruz's asylum application and denied withholding of removal and CAT relief.
- The BIA affirmed the IJ’s decision on January 4, 2013; the petition for review was filed thereafter.
- The court reviews the IJ and BIA decisions under established standards, including deference to agency findings.
- Cruz challenges the asylum pretermission and seeks relief under withholding of removal and CAT, arguing changed circumstances and persecution risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the asylum pretermission is reviewable | Cruz argues changed/extraordinary circumstances override deadline | Government asserts no colorable claim to review pretermission | Lack of jurisdiction to review pretermission |
| Whether Cruz meets withholding of removal as a member of a social group | Group defined as wealth-perceiving deportees; central reason claim | Group not cognizable and wealth not persecutory; not central reason | Denied; social group not cognizable and wealth not central persecutory factor |
| Whether Cruz is entitled to CAT relief based on gang violence | Gang violence constitutes likelihood of torture | Evidence does not show likelihood of torture; relatives remained unharmed | Denied CAT relief; no likelihood of torture |
Key Cases Cited
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (standard for reviewing BIA/IJ decisions)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (established review standards for asylum/related claims)
- Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (wealth-based persecution not cognizable social group; one central reason standard)
- Matter of C-T- L-, 25 I. & N. Dec. 341 (BIA 2010) (extends one central reason standard to withholding of removal)
- Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999) (family safety context informs likelihood of future harm analysis)
- Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (exhaustion rule for arguments not raised before agency)