Galdamez v. Lynch
630 F. App'x 608
6th Cir.2015Background
- Galdamez, a Salvadoran national, entered the U.S. without inspection in 1998 and received TPS in 2001; TPS was withdrawn in 2012 due to misdemeanor convictions.
- DHS initiated removal proceedings in 2014 charging unlawful presence and a drug-related conviction; Galdamez conceded removability on both grounds.
- He applied for asylum, withholding of removal, and CAT protection, claiming gang threats if returned to El Salvador.
- At the merits hearing, he asserted membership in three proposed particular social groups: (1) his family, (2) El Salvadoran males presumed affluent from U.S. residence, and (3) El Salvadoran males who oppose gang recruitment.
- The IJ found the asylum application untimely and denied withholding and CAT relief; the BIA dismissed his appeal. Galdamez petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review asylum untimeliness | Galdamez argues changed circumstances made filing timely | DHS argues untimeliness is a factual/discretionary matter not reviewable | Dismissed for lack of jurisdiction (untimeliness challenge is factual) |
| Withholding of removal: cognizable group — family | Galdamez argues family membership subjects him to gang targeting | DHS argues harm is not motivated by family membership | Denied — BIA reasonably concluded family membership was not the nexus for feared harm |
| Withholding of removal: cognizable group — perceived affluence from U.S. residence | Galdamez claims perceived affluence makes him a target | DHS argues such perception is not a protected group under INA | Denied — group not cognizable under INA |
| Withholding of removal: cognizable group — males opposing gang recruitment | Galdamez claims refusal to join gangs creates protected group | DHS contends such a group is not cognizable and country can protect him | Denied — group not cognizable; record does not compel finding government unable/unwilling to protect |
| CAT protection | Galdamez argues likely torture on return | DHS argues no evidence government would torture or acquiesce | Denied — substantial evidence supports BIA that torture more likely than not not shown |
Key Cases Cited
- Khozhaynova v. Holder, 641 F.3d 187 (6th Cir. 2011) (jurisdictional limits on review of asylum untimeliness)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (changed circumstances and timeliness assessed as factual determinations)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (reviewing BIA opinions and standard of review)
- Dieng v. Holder, 698 F.3d 866 (6th Cir. 2012) (substantial-evidence standard for withholding/CAT review)
- Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) (elements of withholding of removal claim)
- Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009) (family membership as a particular social group)
- Umana-Ramos v. Holder, 724 F.3d 667 (6th Cir. 2013) (young men refusing gang recruitment is not a cognizable social group)