Sebastian Duarte-Salagoza v. Eric Holder, Jr.
775 F.3d 841
| 7th Cir. | 2014Background
- Duarte, a Mexican national, entered the U.S. without inspection around June 1, 2000; DHS issued a NTA in 2011 after his acquittal on heroin-trafficking charges and a removal order issued in absentia when he missed his hearing.
- Proceedings were reopened after Duarte alleged he had not received the notice; he then applied for asylum, withholding of removal, and CAT protection, claiming fear of Zeta cartel retribution due to a prior kidnapping/escape (and an initially alleged DEA cooperation claim).
- At the IJ hearing Duarte denied DEA cooperation and described a pre-U.S. kidnapping by cartel members for ransom, escape, and ongoing threats; he submitted a friend’s affidavit about threatening phone calls.
- The IJ denied asylum and withholding of removal (but granted voluntary departure), finding the cartel’s motive was extortion/personal revenge, not a protected ground.
- The BIA affirmed denial of asylum as untimely (no changed or extraordinary circumstances) and held Duarte failed to preserve a particular-social-group theory before the IJ; it also did not rule on CAT because Duarte never argued it below.
- Duarte sought review in this court; the court dismissed the asylum claim for lack of jurisdiction and denied review of withholding/CAT due to merits and exhaustion failures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum filing | Duarte: late filing excused by changed or extraordinary circumstances; facts show ongoing threats | Gov’t: asylum was filed >1 year after entry and no legal question on timeliness was presented | Court: dismissed for lack of jurisdiction — no cognizable question of law about timeliness presented |
| Withholding of removal — nexus to protected ground | Duarte: targeted as member of a particular social group (variously framed as successful businessmen extorted/kidnapped by Zetas) | Gov’t: harms were extortion/personal revenge, not on account of a protected ground; issues not preserved below | Court: denied — nexus lacking; claims not preserved before IJ/BIA; private-person revenge not a protected ground |
| Preservation / exhaustion of social-group claims | Duarte: BIA/IJ should have considered his social-group formulations and evidence | Gov’t: Duarte failed to present the social-group theories to the IJ, raising them first on appeal or here | Court: refusal to consider new formulations — exhaustion requirement bars review of unraised claims |
| CAT protection — failure to present claim below | Duarte: record evidence (testimony, affidavit) suffices to preserve a CAT claim for court review | Gov’t: Duarte never raised CAT arguments before IJ or BIA; no ruling to review | Court: denied — failed to exhaust administrative remedies, no basis to reach CAT merits |
Key Cases Cited
- Bitsin v. Holder, 719 F.3d 619 (7th Cir. 2013) (one-year filing rule exceptions and jurisdictional review requirements)
- Tian v. Holder, 745 F.3d 822 (7th Cir. 2014) (court lacks jurisdiction to review factual determinations about changed/extraordinary circumstances for asylum timeliness)
- Khan v. Filip, 554 F.3d 681 (7th Cir. 2009) (standard for withholding/asylum nexus and related review limits)
- Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2013) (review standard: reasonable adjudicator and withholding standard)
- Jonaitiene v. Holder, 660 F.3d 267 (7th Cir. 2011) (private violence and personal grudges do not establish protected-ground persecution)
- Juarez v. Holder, 599 F.3d 560 (7th Cir. 2010) (issue exhaustion requires presenting the argument, not merely related evidence)
- Young Dong Kim v. Holder, 737 F.3d 1181 (7th Cir. 2013) (administrative exhaustion generally bars federal review of unraised issues)
- Arobelidze v. Holder, 653 F.3d 513 (7th Cir. 2011) (limited exceptions to exhaustion/wavier doctrines)