12-2278 Saravia v. Holder BIA Abrams, IJ A094 099 666 

### 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 11 th** **day of September, two thousand thirteen.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **GERARD E. LYNCH,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **LUIS A. SARAVIA, AKA LUIS ANTONIO** 13 **SARAVIA OLIVO,** 14 Petitioner**,** 15 16 **v. 12-2278** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21 22 23 **FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New** 24 **York.** 25 26 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 27 **Assistant Attorney General; Francis** 28 **W. Fraser, Senior Litigation** 29 **Counsel; Christina J. Martin, Trial** 30**Attorney, Office of Immigration** 1 **Litigation, United States Department** 2 **of Justice, Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DISMISSED in part and DENIED in part. 8 Luis A. Saravia, a native and citizen of El Salvador, 9 seeks review of a May 11, 2012, decision of the BIA 10 affirming the June 21, 2010, decision of Immigration Judge 11 (“IJ”) Steven R. Abrams, which denied his application for 12 special rule cancellation of removal under the Nicaraguan 13 Adjustment and Central American Relief Act, Pub.L.No. 105- 14 100, 111 Stat. 2160 amended by Pub.L.No. 105-139, 111 Stat. 15 2644 (codified as amended in scattered sections of 8 C.F.R. 16 §1240), (“NACARA”) for lack of hardship, and denied his 17 applications for asylum, withholding of removal, and for 18 relief under the Convention Against Torture (“CAT”) because 19 of changed circumstances, namely that the civil war in El 20 Salvador had ended. In re Luis A. Saravia , No. A094 099 666 21 (B.I.A. May 11, 2012), aff’gNo. A094 099 666 (Immig. Ct. 22 N.Y. City June 21, 2010). We assume the parties’ 23 familiarity with the underlying facts and procedural history 24 in this case. 25

2**I. ABC Class Membership** 1 Saravia alleges he is a class member under theAmerican 2 Baptist Churches v. Thornburgh (“ABC”), 760 F. Supp. 796 3 (N.D. Cal. 1991), settlement agreement and was thus entitled 4

to a de novoasylum interview with the United States 5 Citizenship and Immigration Service (“USCIS”). Because the 6 IJ properly continued proceedings to allow Saravia to pursue 7 an interview with USCIS, Saravia has identified no error in 8 the agency’s decision

. See8 C.F.R. § 1240.70(f)(2). To 9 the extent Saravia wishes to challenge USCIS’s denial of an 10 interview, the correct course of action is to appeal the 11 USCIS decision to the federal district court. ABC, 760 F. 12 Supp. at 810 (¶ 35) (stating that individual class members 13 are “entitled to seek enforcement of the provisions hereof 14 by initiating a separate proceeding in any federal district 15 court”). 16 Moreover, Saravia has not been deprived of due process 17 as he was provided an opportunity to present his asylum 18 claim before the IJ and BIA. See ABC, 760 F. Supp. at 822 19 (“The purpose of the interviews of ABCclass members is to 20 provide these asylum applicants with an opportunity to fully 21 present their claims for asylum without regard to any prior 22

3decision regarding their claim.”); see also8 C.F.R. 1 § 1240.70(f)(2) (providing that where result of USCIS 2 interview is denial of asylum, an applicant may proceed 3 before an IJ). Saravia has not argued how the failure to 4 first have an ABC asylum interview damaged his chance of 5 obtaining asylum. See generally Garcia-Villeda v. Mukasey, 6 531 F.3d 141, 149 (2d Cir. 2008) (finding no due process 7 violation when the petitioner could not demonstrate 8 prejudice). 9 **II. NACARA/Special Rule Cancellation** 10 Pursuant to 8 U.S.C. § 1252(a)(2)(B)(I), we lack 11 jurisdiction to review the denial of special rule 12 cancellation of removal. See also NACARA, § 203(a)(1). We 13 retain jurisdiction, however, to review constitutional 14 claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). The 15 only question of law Saravia raises is whether he was 16 entitled to a presumption of hardship. 17 As an ABC class member, Saravia was eligible for 18 special cancellation of removal. 8 C.F.R. §§ 1240.61, 19 1240.66. Because of his criminal conviction, however, he 20 was subject to the heightened standards under 8 C.F.R. 21 § 1240.66(c). Although a presumption of “extreme hardship” 22

4exists for ABC class members, see 8 C.F.R. § 1240.64(d), the 1 presumption does not apply to applicants like Saravia who 2 are inadmissible based on criminal convictions and are 3 required to show “exceptional and extremely unusual 4 hardship.” See Gonzalez-Ruano v. Holder, 662 F.3d 59, 61 5 (1st Cir. 2011). (“[An] applicant [for relief under 8 C.F.R 6 § 1240.66©] loses the benefit of the presumption under the 7 hardship prong.” (citing 8 C.F.R. § 1240.64(d))). Because 8 the agency applied the proper hardship standard, and we lack 9 jurisdiction to further review the merits of the hardship 10 determination, we dismiss this part of the petition for lack 11 of jurisdiction. See Barco-Sandoval v. Gonzales , 516 F.3d 12 35, 39-40 (2d Cir. 2008). 13 **III. Asylum, Withholding, and CAT** 14 With respect to asylum, Saravia argues the agency 15 failed to afford him the proper presumptions and to consider 16 all his evidence. Even assuming we retain jurisdiction to 17 review his arguments, see 8 U.S.C. § 1252(a)(2)© & (D), they 18 are without merit. See Ivanishvili v. U.S. Dep’t of 19 Justice , 433 F.3d 332, 338 n.2 (2d Cir. 2006). 20 Saravia argues that the IJ failed to make credibility 21 and past persecution findings, and failed to accord him a 22 presumption of a well-founded fear of persecution based on 23 5his demonstration of past-persecution. However, the IJ 1 assumed both credibility and past persecution were 2 established, as he concluded that the government had 3 demonstrated changed country conditions in El Salvador, an 4 analysis which necessarily presumes credible testimony and 5 past persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(A). 6 Because Saravia did not allege that the Salvadoran 7 government was now looking for him, and the harm he suffered 8 due to the civil war was the sole basis for his claim, the 9 end of the war constituted a change in circumstances such 10 that he no longer had a well-founded fear. See Melgar de 11

Torres v. Reno , 191 F.3d 307, 314 (2d Cir. 1999) (citing to 12 State Department Reports on El Salvador for the proposition 13 that “since the signing of the peace accords in January 14 1992, the country’s political and social conditions have 15 materially changed.”). 16 Saravia also argues that the death of his sister and 17 his father’s assault are sufficient examples of harm to 18 rebut the showing of changed circumstances and establish a 19 well-founded fear. However , the agency correctly noted that 20 Saravia was unable to establish any political motive for his 21 sister’s killing, and failed to demonstrate that his father 22 was attacked and robbed for anything other than financial 23 6gain. See Melgar de Torres, 191 F.3d at 314 & n.3 (noting 1 that “general crime conditions are not a stated ground [for 2 asylum]” and “[g]eneral violence in El Salvador does not 3 constitute persecution”). Because Saravia’s claims are all 4 based on the same factual predicate, and he was unable to 5 meet the lower burden for asylum, he necessarily is unable 6 to meet the higher standard required for withholding of 7 removal or CAT relief. See Gomez v. INS, 947 F.2d 660, 665 8 (2d Cir. 1991). 9 For the foregoing reasons, the petition for review is 10 DISMISSED in part and DENIED in part. As we have completed 11 our review, petitioner’s pending motion for a stay of 12 removal is DENIED as moot. 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15

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