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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 13 th** **day of March, two thousand fourteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **JOSÉ A. CABRANES,** 8 **ROBERT D. SACK,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **SAMUEL CRUZ,** 13 Petitioner**,** 14 15 **v. 13-329** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Milagros S. Cruz, Hartford, CT.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Linda S. Wernery, Assistant** 26 **Director; William C. Minick, Trial** 27 **Attorney, Office of Immigration** 28 **Litigation, United States Department** 29 **of Justice, Washington, D.C.** 30UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DISMISSED in part and DENIED in part. 4 Samuel Cruz, a native and citizen of El Salvador, seeks 5 review of a January 4, 2013, order of the BIA affirming the 6 April 6, 2011, decision of an Immigration Judge (“IJ”) which 7 pretermitted his asylum application and denied his 8 applications for withholding of removal and relief under the 9 Convention Against Torture (“CAT”). In re Samuel Cruz , No. 10 A094 434 642 (B.I.A. Jan. 4, 2013),aff’gNo. A094 434 642 11 (Immig. Ct. N.Y. City Apr. 6, 2011). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we have reviewed 15 the decision of the IJ as supplemented by the BIA. See Yan 16 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 17 applicable standards of review are well-established. See 18 Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 19 **I. Asylum** 20 Cruz argues that he established changed and 21 extraordinary circumstances excepting his asylum application 22

2from the one-year filing deadline. We lack jurisdiction to 1 review the pretermission of Cruz’s asylum application 2 because he fails to raise a colorable constitutional claim 3 or question of law. 8 U.S.C. § 1158(a)(2)(B), (3). 4 **II. Withholding of Removal** 5 The agency reasonably found that Cruz failed to 6 establish that he would be persecuted on account of his 7 membership in a particular social group, which he defines as 8 U.S. deportees perceived to be wealthy. To establish 9 eligibility for withholding of removal based on a social 10 group, an applicant must establish both that the group 11 itself was cognizable,see Ucelo-Gomez v. Mukasey, 509 F.3d 12 70, 73 (2d Cir. 2007), and that his membership in that 13 group, and not some other factor, is a central reason why he 14 was or will be targeted for persecution, see Matter of C-T15

L- , 25 I. & N. Dec. 341, 344-46 (BIA 2010) (extending the 16 “one central reason” standard to withholding of removal). 17 Harm motivated purely by wealth is not persecution. See 18 Ucelo-Gomez , 509 F.3d at 73. Contrary to Cruz’s argument, 19 the IJ was not required to consider the specific 20 circumstances of El Salvador because, as a matter of law, a 21 social group is insufficiently particular or socially 22

3visible when the defining characteristic of its members is 1 their perceived wealth. See id. 2 Cruz also argues for the first time that he established 3 a likelihood of persecution based on gang members’ belief 4 that he shared a friend’s anti-gang opinion. However, he 5 failed to exhaust that argument before the agency, and we 6 therefore do not reach it. See Lin Zhong v. U.S. Dep’t of 7 Justice , 480 F.3d 104, 119-20 (2d Cir. 2007). 8 **III. CAT Relief** 9 Cruz argues that the IJ erred by determining that gang 10 violence did not constitute torture and in denying CAT 11 relief on that basis. To the contrary, the IJ considered 12 the evidence of gang violence, but reasonably concluded that 13 Cruz did not establish a likelihood of torture, particularly 14 in light of his testimony that his family remained unharmed 15 in El Salvador. See 8 C.F.R. §§ 1208.16(c), 1208.17 16 (requiring a showing of a likelihood of torture); Melgar de 17

Torres v. Reno , 191 F.3d 307, 313 (2d Cir. 1999) (finding 18 that where alien’s similarly situated relatives continued to 19 live in alien’s native country, claim of future fear of harm 20 was diminished). 21

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4For the foregoing reasons, the petition for review is 1 DISMISSED to the extent it challenges the pretermission of 2 Cruz’s asylum application and DENIED regarding withholding 3 of removal and CAT relief. As we have completed our review, 4 any stay of removal that the Court previously granted in 5 this petition is VACATED, and any pending motion for a stay 6 of removal in this petition is DISMISSED as moot. Any 7 pending request for oral argument in this petition is DENIED 8 in accordance with Federal Rule of Appellate Procedure 9 34(a)(2), and Second Circuit Local Rule 34.1(b). 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14

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