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.

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 11th 4 day of September, two thousand thirteen.

5

6 PRESENT:

7 BARRINGTON D. PARKER,

8 GERARD E. LYNCH,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _____________________________________

12

13 LUIS A. SARAVIA, AKA LUIS ANTONIO 

14 SARAVIA OLIVO,

15 Petitioner, 

16

17 v. 12-2278

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22

23

24 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New

25 York.

26

27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

28 Assistant Attorney General; Francis

29 W. Fraser, Senior Litigation

30 Counsel; Christina J. Martin, Trial
1 Attorney, Office of Immigration

2 Litigation, United States Department

3 of Justice, Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DISMISSED in part and DENIED in part.

9 Luis A. Saravia, a native and citizen of El Salvador,

10 seeks review of a May 11, 2012, decision of the BIA

11 affirming the June 21, 2010, decision of Immigration Judge

12 (“IJ”) Steven R. Abrams, which denied his application for

13 special rule cancellation of removal under the Nicaraguan

14 Adjustment and Central American Relief Act, Pub.L.No. 105-

15 100, 111 Stat. 2160 amended by Pub.L.No. 105-139, 111 Stat.

16 2644 (codified as amended in scattered sections of 8 C.F.R.

17 §1240), (“NACARA”) for lack of hardship, and denied his

18 applications for asylum, withholding of removal, and for

19 relief under the Convention Against Torture (“CAT”) because

20 of changed circumstances, namely that the civil war in El

21 Salvador had ended. In re Luis A. Saravia, No. A094 099 666

22 (B.I.A. May 11, 2012), aff’g No. A094 099 666 (Immig. Ct.

23 N.Y. City June 21, 2010). We assume the parties’

24 familiarity with the underlying facts and procedural history

25 in this case.

2
1 I. ABC Class Membership

2 Saravia alleges he is a class member under the American

3 Baptist Churches v. Thornburgh (“ABC”), 760 F. Supp. 796

4 (N.D. Cal. 1991), settlement agreement and was thus entitled

5 to a de novo asylum interview with the United States

6 Citizenship and Immigration Service (“USCIS”). Because the

7 IJ properly continued proceedings to allow Saravia to pursue

8 an interview with USCIS, Saravia has identified no error in

9 the agency’s decision. See 8 C.F.R. § 1240.70(f)(2). To

10 the extent Saravia wishes to challenge USCIS’s denial of an

11 interview, the correct course of action is to appeal the

12 USCIS decision to the federal district court. ABC, 760 F.

13 Supp. at 810 (¶ 35) (stating that individual class members

14 are “entitled to seek enforcement of the provisions hereof

15 by initiating a separate proceeding in any federal district

16 court”). 

17 Moreover, Saravia has not been deprived of due process

18 as he was provided an opportunity to present his asylum

19 claim before the IJ and BIA. See ABC, 760 F. Supp. at 822

20 (“The purpose of the interviews of ABC class members is to

21 provide these asylum applicants with an opportunity to fully

22 present their claims for asylum without regard to any prior

3
1 decision regarding their claim.”); see also 8 C.F.R.

2 § 1240.70(f)(2) (providing that where result of USCIS

3 interview is denial of asylum, an applicant may proceed

4 before an IJ). Saravia has not argued how the failure to

5 first have an ABC asylum interview damaged his chance of

6 obtaining asylum. See generally Garcia-Villeda v. Mukasey,

7 531 F.3d 141, 149 (2d Cir. 2008) (finding no due process

8 violation when the petitioner could not demonstrate

9 prejudice).

10 II. NACARA/Special Rule Cancellation

11 Pursuant to 8 U.S.C. § 1252(a)(2)(B)(I), we lack

12 jurisdiction to review the denial of special rule

13 cancellation of removal. See also NACARA, § 203(a)(1). We

14 retain jurisdiction, however, to review constitutional

15 claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). The

16 only question of law Saravia raises is whether he was

17 entitled to a presumption of hardship.

18 As an ABC class member, Saravia was eligible for

19 special cancellation of removal. 8 C.F.R. §§ 1240.61,

20 1240.66. Because of his criminal conviction, however, he

21 was subject to the heightened standards under 8 C.F.R. 

22 § 1240.66(c). Although a presumption of “extreme hardship”

4
1 exists for ABC class members, see 8 C.F.R. § 1240.64(d), the

2 presumption does not apply to applicants like Saravia who

3 are inadmissible based on criminal convictions and are

4 required to show “exceptional and extremely unusual

5 hardship.” See Gonzalez-Ruano v. Holder, 662 F.3d 59, 61

6 (1st Cir. 2011). (“[An] applicant [for relief under 8 C.F.R

7 § 1240.66©] loses the benefit of the presumption under the

8 hardship prong.” (citing 8 C.F.R. § 1240.64(d))). Because

9 the agency applied the proper hardship standard, and we lack

10 jurisdiction to further review the merits of the hardship

11 determination, we dismiss this part of the petition for lack

12 of jurisdiction. See Barco-Sandoval v. Gonzales, 516 F.3d

13 35, 39-40 (2d Cir. 2008).

14 III. Asylum, Withholding, and CAT

15 With respect to asylum, Saravia argues the agency

16 failed to afford him the proper presumptions and to consider

17 all his evidence. Even assuming we retain jurisdiction to

18 review his arguments, see 8 U.S.C. § 1252(a)(2)© & (D), they

19 are without merit. See Ivanishvili v. U.S. Dep’t of

20 Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006). 

21 Saravia argues that the IJ failed to make credibility

22 and past persecution findings, and failed to accord him a

23 presumption of a well-founded fear of persecution based on

5
1 his demonstration of past-persecution. However, the IJ

2 assumed both credibility and past persecution were

3 established, as he concluded that the government had

4 demonstrated changed country conditions in El Salvador, an

5 analysis which necessarily presumes credible testimony and

6 past persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(A). 

7 Because Saravia did not allege that the Salvadoran

8 government was now looking for him, and the harm he suffered

9 due to the civil war was the sole basis for his claim, the

10 end of the war constituted a change in circumstances such

11 that he no longer had a well-founded fear. See Melgar de

12 Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (citing to

13 State Department Reports on El Salvador for the proposition

14 that “since the signing of the peace accords in January

15 1992, the country’s political and social conditions have

16 materially changed.”). 

17 Saravia also argues that the death of his sister and

18 his father’s assault are sufficient examples of harm to

19 rebut the showing of changed circumstances and establish a

20 well-founded fear. However, the agency correctly noted that

21 Saravia was unable to establish any political motive for his

22 sister’s killing, and failed to demonstrate that his father

23 was attacked and robbed for anything other than financial

6
1 gain. See Melgar de Torres, 191 F.3d at 314 & n.3 (noting

2 that “general crime conditions are not a stated ground [for

3 asylum]” and “[g]eneral violence in El Salvador does not

4 constitute persecution”). Because Saravia’s claims are all

5 based on the same factual predicate, and he was unable to

6 meet the lower burden for asylum, he necessarily is unable

7 to meet the higher standard required for withholding of

8 removal or CAT relief. See Gomez v. INS, 947 F.2d 660, 665

9 (2d Cir. 1991). 

10 For the foregoing reasons, the petition for review is

11 DISMISSED in part and DENIED in part. As we have completed

12 our review, petitioner’s pending motion for a stay of

13 removal is DENIED as moot.

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

7