Santiago MARTINEZ-GALARZA, also known as Facundo Parias-Martinez, Petitioner v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
No. 14-1436
United States Court of Appeals, Eighth Circuit.
Submitted: Feb. 11, 2015. Filed: April 9, 2015.
B. Enforcement
Our second considеration is whether section 1591(a)(2) provides sufficient guidelines so as not to encourage arbitrary or discriminatory enforcement. “Congress must provide minimal requirements to guide law enforcement . . . because [w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Birbragher, 603 F.3d at 489 (alterations in original) (internal quotations marks and citations omitted). Cook argues this application is an arbitrary expansion of the statute‘s reach, as the statute has been in place since 2000 but the government only started using it to prosecute purchasers in 2009. He claims this is an improper attempt by the government “to shape § 1591 to fit its litigative strategies or its political agenda,” which should be prohibited absent a clear directive from Congress that the statute extends to purchasers.
As we find section 1591(a)(2)‘s plain language makes clear that Congress intended to include purchasers of commercial sex acts who violate the statute‘s terms, this argument fails. See Jungers, 702 F.3d at 1069. Due process bars courts from retroactively applying a new construction of a criminal statute where it was not previously clear the statute authorized that construction, but there is no bar where the statute, “standing alone made it reasonably clear at the relevant time that the defendant‘s conduct wаs criminal.” United States v. Lanier, 520 U.S. 259, 266-67, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Applying the statute to purchasers of commercial sex does not encourage arbitrary enforcement.
III. Conclusion
For these reasons, we find section 1591(a)(2) is not unconstitutionally vague as applied to Cook‘s conduct аnd affirm the district court‘s denial of his motion to dismiss.
Rosanne Perry, argued, Washington, DC, for Respondent.
Before BYE, BEAM, and BENTON, Circuit Judges.
BEAM, Circuit Judge.
Santiago Martinez-Galarza, a citizen and native of Mexico, petitions for review of an order of the Board of Immigration Appeals (BIA) upholding an immigration judge‘s (IJ) denial of Martinez-Galarzа‘s application for asylum, withholding of removal, withholding under the Convention Against Torture (CAT) and voluntary departure. We deny the petition for review.
I. BACKGROUND
Martinez-Galarza entered the United States on or about August, 20, 1986, without admission or parole, and in 1999 he was granted voluntary departure by an IJ and left the United States. Martinez-Galarza entered the United States again on or about May 20, 2000, without admission or parole. In October 2010, Martinez-Galarza was arrested by Immigration and Customs Enforcement (ICE) and subsequently removal proceedings were commenced against Martinez-Galarza, charging him with removability under
Martinez-Galarza was initially scheduled to appear before the court on February 17, 2011, but his master calendar hearing was continued. On February 7, 2012, Mаrtinez-Galarza appeared, with counsel, before an IJ. He admitted all of the factual allegations and conceded the charge of removability. Martinez-Galarza declined to designate a country, and the IJ designatеd Mexico. The IJ also noted that Martinez-Galarza was not eligible for voluntary departure as he had previously been granted voluntary departure by the court in 1999 and, after leaving, reentered the United States illegally in 2000.
Martinez-Galarza filed an application for asylum, withholding of removal and protection under the CAT. On September 18, 2012, Martinez-Galarza submitted a prehearing memorandum in support of his application. In the memorandum, Martinez-Galarza asserted thаt he was a member of a social group “consisting of people who have provided information to [ICE] to enable that organization to remove individuals residing illegally in the [United States],” as well as a member of a second soсial group consisting of “witnesses for ICE.” Martinez-Galarza also recounted in the memorandum his 2010 detainment by ICE, and his assertions that ICE promised to allow him to remain in the United States and issue a work permit, in exchange for information on Sanchez. Martinez-Galarza stated that he feared returning to Mexico because of Sanchez, who believed that Martinez-Galarza had “ended his American dream.” Martinez-Galarza further asserted that Sanchez had beaten his brother, Esteban, and killed his nephew, Marcelo Alarcon, because Sanchez was angry with Martinez-Galarza. Martinez-Galarza also asserted that Sanchez threatened to kill him. Lastly, Martinez-Galarza acknowledged that his petition for asylum was untimely filеd, but he argued that the November 2010 removal of Sanchez was a changed or extraordinary circumstance which excused his untimely filing. He also argued that he was unable to file his application for asylum right after Sanchez was removed in 2010 because his master calendar hearing had been continued until February 7, 2012.
Hearings on the matter took place on October 2 and 4, 2012. On October 4, 2012, the IJ issued an oral decision denying Martinez-Galarza‘s applications for asylum, withholding of removal and CAT protection. The IJ found Martinez-Galarza‘s asylum application time-barred, since he did not file the application within a reasonable time after the qualifying event, Sanchez‘s November 2010 removal. Alternatively, thе IJ found that Martinez-Galarza‘s claimed social groups lacked social visibility and particularity. As to Martinez-Galarza‘s request for withholding of removal, the IJ found that he was not eligible for withholding of removal because he had failed to establish the lower standard of asylum. The IJ also determined that Martinez-Galarza was not eligible for CAT protection, because he had not submitted evidence that it was more likely than not that he would be tortured by the Mexican government or its аgents upon his return to Mexico.
II. DISCUSSION
A. Standard of Review
We review the BIA‘s decision as a final agency decision. Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005). And, to the extеnt that the BIA adopted the IJ‘s findings, we also review the IJ‘s findings as part of the final agency decision. Id. We review de novo issues of law, and review the agency‘s findings of facts under the substantial evidence standard. Omondi v. Holder, 674 F.3d 793, 797 (8th Cir. 2012). That standard provides that “the findings of fаcts are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id.
B. Asylum Claim
To establish eligibility for asylum an applicant must show he is a “refugee,” a person who is unwilling or unable to return to his country or origin “because of persecution or a well-founded fear of persecution on account of . . . membership in a particular social group.”
In his petition for review, Martinez-Galarza reiterates that he faces a credible threat to his life because Sanchez believes Martinez-Galarza ended his American dream and has threatened to kill him if he returns to Mexico. Martinez-Galarza also argues that Mexico in general is experiencing an increase in organized crime, and asserts that it is well known that police and government officials take bribes to carry out hits on individuals. He concludes that it is therefore “highly unlikely that the government will do anything to protect [him].”
Even taking everything Martinez-Galarza says as true, which the IJ did, Martinez-Galarza‘s claims do not satisfy the burden that his fear of persecution is on account of his membership in а particular social group. Martinez-Galarza does not claim that Sanchez wants to persecute him because of Martinez-Galarza‘s status as a member of the social group “consisting of people who have рrovided information to [ICE] to enable that organization to remove individuals residing illegally in the [United States].” Sanchez‘s alleged reason for wanting to harm Martinez-Galarza—because Martinez-Galarza ended Sanchez‘s American dream—is motivated by purely personal retribution, and thus not a valid basis for an asylum claim. See
There may be asylum protections for an applicant who shows the threatened persecution is motivated by both personal retaliation and a protected motive, Madrigal, 716 F.3d at 506, but Martinez-Galarza presents no evidence to suggest this is the situation here. He does not allege that Sanchez has threatened or attacked other ICE informants. In fact, the other individuals Sanchez has targeted—Martinez-Galarza‘s brother and nephew—suggest even more strongly that Sanchez has a personal grudge with Martinez-Galarza, and is not threatening him as a result of Martinez-Galarza‘s nexus to an alleged particular social group. Accordingly, Martinez-Galarza has failed to meet his burden to establish hе is eligible for asylum.
C. Other Claims
It is unclear from Martinez-Galarza‘s brief whether he is also seeking review of the BIA‘s determination that he is not eligible for withholding of deportation and CAT protection. Martinez-Galarza states he is petitioning for review of the BIA decision that upheld the IJ‘s decision denying his application for asylum, withholding of removal, protection under CAT and voluntary departure. However, Martinez-Galarza makes no substantive arguments in his brief regarding his eligibility for withholding of removal, CAT protections, or voluntary departure, aside from a fleeting mention that “[p]ast and/or future persecutions are factors considered in asylum, withholding of deportation, and [CAT] claims.” Furthermore, the BIA noted in its decision that Martinez-Galarza did not challenge the IJ‘s denial of voluntary departure and CAT protection in his petition before the BIA. The BIA has determined that issues not addressed on review are deemed waived. Matter of Edwards, 20 I. & N. Dec. 191, 202 n. 4 (BIA 1990); see also Marksmeier v. Davie, 622 F.3d 896, 902 n. 4 (8th Cir. 2010) (holding claims not argued are waived). Thus, we decline to address Martinez-Galarza‘s claims for withholding of removability, CAT protections, and voluntary departure.
III. CONCLUSION
For the aforementioned reasons, we affirm the BIA‘s decision.