Delio Corleto Martinez v. Merrick Garland
17-73005
9th Cir.Jul 26, 2021Background
- Petitioner Delio De Jesus Corleto-Martinez, a citizen of El Salvador, was deported in 2006, later illegally reentered the U.S., and faced a reinstated removal order.
- Corleto applied for withholding of removal and protection under the CAT via a reasonable-fear proceeding; an IJ found he lacked a reasonable fear and denied relief.
- Corleto asserted gangs in El Salvador targeted him; record evidence showed gangs targeted him because he owned cows and was perceived to have money.
- Corleto argued his targeting was based on his family business (a proposed particular social group); the IJ and an asylum officer disagreed.
- Corleto filed two motions to reopen his original deportation order; the BIA denied both. The Ninth Circuit reviewed whether the IJ’s fear determination was supported by substantial evidence and whether the BIA had jurisdiction to reopen.
- Corleto did not press the IJ’s CAT (torture) determination in his opening brief and thus waived appellate review of that issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corleto established a reasonable fear of persecution based on membership in a particular social group | Corleto: gangs targeted him because of his family business/family ties (a protected social group) | Government: gangs targeted him for perceived wealth (ownership of cows), not a protected ground | Held: Substantial evidence supports IJ; perceived wealth/farm ownership is not a cognizable social group; petition denied |
| Whether Corleto established a reasonable fear of torture (CAT) | Corleto: claimed fear of torture if returned | Government: evidence insufficient to show more likely than not torture by or with government acquiescence; also IJ’s CAT ruling not challenged on appeal | Held: Corleto waived appellate review of CAT claim; in any event IJ’s decision supported by substantial evidence |
| Whether the BIA had jurisdiction to reopen Corleto’s original removal order after reinstatement under 8 U.S.C. § 1231(a)(5) | Corleto: sought to reopen prior removal order via motions to reopen | Government: reinstatement statute bars reopening of prior removal orders after illegal reentry | Held: BIA lacked authority to reopen; § 1231(a)(5) bars reopening reinstated orders; motions properly denied |
Key Cases Cited
- Bartolome v. Sessions, 904 F.3d 803 (9th Cir. 2018) (gangs targeting for perceived wealth is not a cognizable social group)
- Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016) (gang targeting for money not a protected ground)
- Don v. Gonzalez, 476 F.3d 738 (9th Cir. 2007) (agency factfinding reviewed for substantial evidence; IJ need not adopt every alternate interpretation)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (CAT standard: likelihood of torture and government acquiescence requirement)
- Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020) (§ 1231(a)(5) unambiguously bars reopening reinstated removal orders)
- Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir. 2008) (collateral attack via reinstatement review only for gross miscarriage of justice)
- Morgan Stanley Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty., 554 U.S. 527 (2008) (remand is unnecessary where agency was required to reach a particular legal result)