13-329

Cruz v. Holder

BIA

Verrillo, IJ

A094 434 642

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 13th 4 day of March, two thousand fourteen.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 JOSÉ A. CABRANES,

9 ROBERT D. SACK,

10 Circuit Judges. 

11 _____________________________________

12

13 SAMUEL CRUZ,

14 Petitioner, 

15

16 v. 13-329

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Milagros S. Cruz, Hartford, CT.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Linda S. Wernery, Assistant

27 Director; William C. Minick, Trial

28 Attorney, Office of Immigration

29 Litigation, United States Department

30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DISMISSED in part and DENIED in part.

5 Samuel Cruz, a native and citizen of El Salvador, seeks

6 review of a January 4, 2013, order of the BIA affirming the

7 April 6, 2011, decision of an Immigration Judge (“IJ”) which

8 pretermitted his asylum application and denied his

9 applications for withholding of removal and relief under the

10 Convention Against Torture (“CAT”). In re Samuel Cruz, No.

11 A094 434 642 (B.I.A. Jan. 4, 2013), aff’g No. A094 434 642

12 (Immig. Ct. N.Y. City Apr. 6, 2011). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we have reviewed

16 the decision of the IJ as supplemented by the BIA. See Yan

17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

18 applicable standards of review are well-established. See

19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

20 I. Asylum

21 Cruz argues that he established changed and

22 extraordinary circumstances excepting his asylum application

2
1 from the one-year filing deadline. We lack jurisdiction to

2 review the pretermission of Cruz’s asylum application

3 because he fails to raise a colorable constitutional claim

4 or question of law. 8 U.S.C. § 1158(a)(2)(B), (3). 

5 II. Withholding of Removal

6 The agency reasonably found that Cruz failed to

7 establish that he would be persecuted on account of his

8 membership in a particular social group, which he defines as

9 U.S. deportees perceived to be wealthy. To establish

10 eligibility for withholding of removal based on a social

11 group, an applicant must establish both that the group

12 itself was cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d

13 70, 73 (2d Cir. 2007), and that his membership in that

14 group, and not some other factor, is a central reason why he

15 was or will be targeted for persecution, see Matter of C-T16 L-, 25 I. & N. Dec. 341, 344-46 (BIA 2010) (extending the

17 “one central reason” standard to withholding of removal). 

18 Harm motivated purely by wealth is not persecution. See

19 Ucelo-Gomez, 509 F.3d at 73. Contrary to Cruz’s argument,

20 the IJ was not required to consider the specific

21 circumstances of El Salvador because, as a matter of law, a

22 social group is insufficiently particular or socially

3
1 visible when the defining characteristic of its members is

2 their perceived wealth. See id. 

3 Cruz also argues for the first time that he established

4 a likelihood of persecution based on gang members’ belief

5 that he shared a friend’s anti-gang opinion. However, he

6 failed to exhaust that argument before the agency, and we

7 therefore do not reach it. See Lin Zhong v. U.S. Dep’t of

8 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

9 III. CAT Relief

10 Cruz argues that the IJ erred by determining that gang

11 violence did not constitute torture and in denying CAT

12 relief on that basis. To the contrary, the IJ considered

13 the evidence of gang violence, but reasonably concluded that

14 Cruz did not establish a likelihood of torture, particularly

15 in light of his testimony that his family remained unharmed

16 in El Salvador. See 8 C.F.R. §§ 1208.16(c), 1208.17

17 (requiring a showing of a likelihood of torture); Melgar de

18 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding

19 that where alien’s similarly situated relatives continued to

20 live in alien’s native country, claim of future fear of harm

21 was diminished). 

22 

4
1 For the foregoing reasons, the petition for review is

2 DISMISSED to the extent it challenges the pretermission of

3 Cruz’s asylum application and DENIED regarding withholding

4 of removal and CAT relief. As we have completed our review,

5 any stay of removal that the Court previously granted in

6 this petition is VACATED, and any pending motion for a stay

7 of removal in this petition is DISMISSED as moot. Any

8 pending request for oral argument in this petition is DENIED

9 in accordance with Federal Rule of Appellate Procedure

10 34(a)(2), and Second Circuit Local Rule 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

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