Salvador Silva v. Jefferson Sessions
14-71709
| 9th Cir. | Nov 27, 2017Background
- Salvador Silva, a removable noncitizen, sought adjustment of status and asylum-related relief after removal proceedings and an IJ denial.
- IJ and BIA found Silva removable under 8 U.S.C. § 1182(a)(6)(A)(i) for lack of admission, making him ineligible for adjustment under § 1255(a).
- Silva asserted asylum, withholding of removal, and CAT protection based on threats in Mexico tied to being viewed as an “imputed wealthy American.”
- The IJ determined Silva’s asylum application was untimely (filed at least 12 years late) and that alleged changed circumstances did not excuse lateness; IJ also rejected the merits of his claims.
- Silva moved to reopen to seek administrative closure so he could pursue an I-601A provisional waiver; the BIA denied the motion without addressing the I-601A issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Removability standard for adjustment of status | Silva argued he was admitted and thus eligible for adjustment | Government maintained Silva failed to prove admission; removability standard is "clearly and beyond doubt" | Court: "clearly and beyond doubt" standard applies; Silva failed to rebut removability, so ineligible for adjustment |
| Timeliness of asylum application | Silva sought to excuse 12-year delay by alleging changed conditions in Mexico | Government argued general increase in violence does not show individualized changed circumstances | Court: Late; changed circumstances insufficient because they show only generalized increased violence |
| Particular social group / withholding claim | Silva claimed membership in "imputed wealthy Americans" as a particular social group | Government argued the group is not a cognizable particular social group | Court: "Imputed wealthy Americans" is not a particular social group; withholding claim fails |
| CAT claim | Silva argued risk of torture upon return | Government argued he did not meet more-likely-than-not torture standard | Court: Substantial evidence supports denial; Silva did not show likelihood of torture |
| Motion to reopen to pursue I-601A waiver | Silva sought administrative closure so he could apply for provisional waiver; argued BIA should consider reopening without his attaching I-601A form | Government defended BIA denial | Court: BIA abused its discretion by denying motion to reopen without addressing the I-601A waiver issue; Silva’s failure to attach the I-601A did not preclude consideration |
Key Cases Cited
- Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) (jurisdiction to review BIA decisions when IJ denies relief on merits)
- Lopez-Vasquez v. Holder, 706 F.3d 1072 (9th Cir. 2013) ("clearly and beyond doubt" standard applies in adjustment proceedings)
- Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. 2010) (same standard applies to removability and adjustment)
- Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016) (changed-country conditions must show nexus to applicant; CAT and asylum standards)
- Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (BIA must give specific and cogent reasons when denying motions to reopen)