Lizama v. Holder
2011 U.S. App. LEXIS 913
| 4th Cir. | 2011Background
- Lizama, a native and citizen of El Salvador, entered the U.S. illegally in the early 1990s and received a removal proceeding in 2006.
- He sought asylum, withholding of removal, and CAT protection based on fear of gang persecution tied to a social group of 'young, Americanized, well-off Salvadoran male deportees with criminal histories who oppose gangs.'
- Lizama argued wealth acquired in the U.S. between 2006-2007 created changed circumstances excusing untimely asylum filing.
- The IJ denied relief: asylum untimely, withheld removal denied due to failure to prove a cognizable social group, and CAT denied for lack of government acquiescence and likelihood of torture.
- The BIA affirmed, upholding the untimeliness, social-group failure, and CAT denial; Lizama petitioned for review in the Fourth Circuit.
- The Fourth Circuit dismissed the asylum claim for lack of jurisdiction, and denied relief on the withholding of removal and CAT claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asylum is reviewable on timeliness under changed circumstances. | Lizama argues changed circumstances excused untimely filing. | Lizama's argument is unreviewable; if reviewable, IJ misused terms but correctly applied changed circumstances. | Asylum timeliness review is barred; petition dismissed for lack of jurisdiction on the issue. |
| Whether Lizama's social group qualifies for withholding of removal. | Lizama asserts the group is a legally cognizable, particular social group. | Group fails under immutability, particularity, and social visibility; disparate, amorphous traits do not define membership. | BIA correctly found no cognizable particular social group; withholding denied. |
| Whether the CAT claim is exhausted and supported by substantial evidence. | Lizama contends CAT protection is warranted due to likelihood of torture. | Record shows no government acquiescence and insufficient likelihood of torture; exhaustion satisfied by BIA consideration. | CAT denial supported by substantial evidence; exhaustion satisfied; relief denied. |
Key Cases Cited
- Mirisawo v. Holder, 599 F.3d 391 (4th Cir.2010) (standard of review for asylum/related relief)
- Matter of A-M-E & J-G-U, 24 I. & N. Dec. 69 (B.I.A.2007) (particular social group criteria; immutability, visibility, particularity)
- Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A.1985) (immutable characteristic requirement)
- Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A.2008) (rejected broad social-group definitions for certain groups)
- Ahmed v. Holder, 611 F.3d 90 (1st Cir.2010) (comments on immutability and particularity; applicability across circuits)
- Ortiz-Araniba v. Keisler, 505 F.3d 39 (1st Cir.2007) (government ability to control gang violence as a factor in CAT/relief determinations)
- Amilcar-Orellana v. Mukasey, 551 F.3d 86 (1st Cir.2008) (government's willingness/ability to control gangs offsetting CAT risk)
- Lin v. Attorney Gen., 543 F.3d 114 (3d Cir.2008) (exhaustion and agency consideration under CAT claims)