Jesus Cruz Martinez v. Jefferson B. Sessions III
885 F.3d 460
7th Cir.2018Background
- Cruz-Martinez, a Mexican national, was removed in 2002 under a stipulated removal order (entered under an alias he later conceded using) and unlawfully reentered the U.S. in 2005.
- In Mexico in 2005 he received an isolated armed threat at his mother's home; he stayed in Mexico for two months afterward without further harm to him or his family.
- After returning to the U.S., he acquired several criminal convictions and established family ties (married to a U.S. citizen; children; relatives who travel to Mexico without incident).
- DHS reinstated the 2002 removal order in 2014; the Asylum Office made a positive reasonable-fear finding, and Cruz-Martinez applied for protection before the Immigration Judge (IJ).
- The IJ found his testimony credible but denied asylum, withholding, and CAT relief as he failed to show past persecution, a likelihood of future persecution on a protected ground, or torture by government actors; the Board of Immigration Appeals affirmed and declined to remand for new country-condition evidence.
- Cruz-Martinez petitioned for review in the Seventh Circuit contesting (1) the reinstated removal order and stipulation, (2) denial of asylum/withholding/CAT, and (3) refusal to remand for new evidence; the Seventh Circuit denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity / challenge to 2002 stipulated removal and reinstatement | Stipulated order caption used wrong name; reinstatement unsigned; due process violation — case should be remanded | Cruz-Martinez conceded using the alias; he failed to timely challenge the 2002 order; reinstatement is signed in DHS record; court cannot "look behind" underlying removal | Denied — cannot revisit underlying stipulated order; reinstatement properly entered; remand would be futile |
| Eligibility for asylum while subject to reinstated removal order | He sought asylum based on fear of gangs/men who threatened him | DHS/Board: aliens with reinstated removal orders cannot apply for asylum | Denied — asylum not available to aliens subject to reinstated removal (controlling precedent) |
| Withholding of removal (future persecution) | Threats and worsening country conditions support entitlement to withholding | IJ/Board: single ancient isolated threat, no protected-ground nexus, government not the persecutor or unwilling/unable to control; family travel undermines risk | Denied — record supports conclusion no past persecution and insufficient showing of future persecution on a protected ground |
| CAT relief and request to remand for new evidence | New country-condition reports and State Department travel warning suggest risk of torture/kidnapping warrant remand and relief | Board: reports show generalized crime but do not tie risk to petitioner specifically or to government torture; new evidence would not change outcome | Denied — CAT claim waived for lack of developed argument; even on merits no evidence of torture by government; denial of remand was not an abuse of discretion |
Key Cases Cited
- Torres-Tristan v. Holder, 656 F.3d 653 (7th Cir. 2011) (court will not look behind a reinstated removal order to contest the underlying removal)
- Gomez v. Chavez, 308 F.3d 796 (7th Cir. 2002) (jurisdiction limited to whether reinstatement order was properly entered)
- Lopez v. Lynch, 810 F.3d 484 (7th Cir. 2016) (remand futile where reinstatement is supported in administrative record)
- Garcia v. Sessions, 873 F.3d 553 (7th Cir. 2017) (aliens subject to reinstated removal orders are ineligible for asylum)
- Li Ying Zheng v. Holder, 722 F.3d 986 (7th Cir. 2013) (standard of review for Board decisions: substantial evidence review)
- Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013) (persecution must be by government or by actors government cannot/will not control)
- Pathmakanthan v. Holder, 612 F.3d 618 (7th Cir. 2010) (mere threats ordinarily insufficient to establish past persecution)
- Hernandez-Baena v. Gonzales, 417 F.3d 720 (7th Cir. 2005) (threats must be immediate and menacing to amount to persecution)
- Boykov v. INS, 109 F.3d 413 (7th Cir. 1997) (threats alone rarely support a finding of past persecution)
- United Central Bank v. Davenport Estate, LLC, 815 F.3d 315 (7th Cir. 2016) (issues not developed in briefing are waived)
- Yi Xian Chen v. Holder, 705 F.3d 624 (7th Cir. 2013) (standard for reviewing Board denial of motion to remand is abuse of discretion)