Lizama v. Holder

• Decision Date: 19 January 2011
• Docket Number: No. 09-2027,09-2027
• Citation: 629 F.3d 440
• Parties: Carlos LIZAMA, a/k/a Lizama Meija, a/k/a Carlos Alberto, a/k/a Edgar Ortez, a/k/a Adiel Edgar, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

629 F.3d 440 Carlos LIZAMA, a/k/a Lizama Meija, a/k/a Carlos Alberto, a/k/a Edgar Ortez, a/k/a Adiel Edgar, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. No. 09-2027. United States Court of Appeals, Fourth Circuit. Argued: Oct. 26, 2010. Decided: Jan. 19, 2011.

ARGUED: Ricky Malik, Law Offices of Ricky Malik, LLC, Merrifield, Virginia, for Petitioner. Jesse Matthew Bless, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Jennifer Paisner-Williams, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Petition for review dismissed in part and denied in part by published opinion. Judge DUNCAN wrote the opinion, in which Judge AGEE and Judge DAVIS joined.

OPINION

DUNCAN, Circuit Judge:

Carlos Lizama, a native and citizen of El Salvador, petitions for judicial review of an order of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and protection under Article III of the United Nations Convention Against Torture ("CAT"). Lizama claims that he fears violent persecution by gangs in El Salvador on account of his membership in the self-described social group of "young, Americanized, well-off, Salvadoran male deportees with criminal histories who oppose gangs," and that the Salvadoran government would be unwilling or unable to prevent such violence. For the reasons explained below, we dismiss Lizama's asylum claim for lack of jurisdiction and deny the petition for review of his withholding of removal and CAT claims.

I.

Carlos Lizama left El Salvador on February 24, 1992, and entered the United States soon thereafter. On June 7, 2006, the Department of Homeland Security issued Lizama a Notice to Appear, charging him with removability for entering this country without inspection.

On July 24, 2008, Lizama testified at a merits hearing before an immigration judge ("IJ"). He conceded removability but petitioned for asylum, withholding of removal, and protection under the CAT. Lizama recognized that asylum claims must generally be brought within one year of the petitioner's entry into the United States. He argued, however, that because his asylum claim was based in part on the wealth he accumulated in this country between 2006 and 2007, he was not eligible to bring that claim until 2007. He claimed that the recent acquisition of his wealth constituted "changed circumstances" which excused his failure to file a timely asylum application.

Lizama's asylum and withholding of removal claims were based on his fear of persecution on account of his membership in the purported social group of "young, Americanized[,] well-off[,] Salvadoran male deportees with criminal histories who oppose gangs." J.A. 513. He explained that he would be easily recognizable by Salvadorans as a member of this group due to his dress, accent, demeanor, and standard of living. Lizama based his CAT claim on the assertion that it is more likely than not that gang members would torture him with the awareness—or willful blindness—of government officials.

In support of his claims, Lizama testified that he owned and managed a successfulpainting business in Northern Virginia, which accounted for his recently accumulated wealth and allowed him to regularly send between $150 and $200 a month to his mother in El Salvador. Lizama also stated that he gave his mother $30,000 to rebuild her home in her farming village of San Moritas. According to Lizama, his mother's home is now one of the nicest in her community, and villagers in San Moritas are aware she receives money from a relative in the United States. Lizama claimed that, if removed to El Salvador, he would live with his mother, though he conceded that he could live elsewhere.

Lizama also testified that he was afraid to return to El Salvador for fear of being persecuted by gangs. As a deportee, Lizama testified, he would be targeted by gang members curious to know if he was affiliated with a gang, especially a rival gang. He claimed his resistance to gang recruitment would inspire manipulation, extortion, and even death threats from gang members. Lizama testified that his fear of extortion was based primarily on what he had seen on television. He did not claim his mother had ever been harassed or harmed by gangs in El Salvador. Moreover, although he testified that he personally knew eight individuals with criminal records who were deported to El Salvador, he did not assert that any of them had encountered the problems he fears.

In support of his claims, Lizama proffered the expert testimony of Dr. Harry Edwin Vanden, a country expert on El Salvador and Salvadoran gangs. Dr. Vanden testified that gangs such as MS-13 and Mara 18 have a "pervasive" presence in El Salvador and "operate, simply put, all over the country." J.A. 101. According to Dr. Vanden, Lizama could be identified and targeted by gangs as different from others in El Salvador because of his clothing, manner of acting, and altered accent when speaking Spanish. In addition, gangs would be interested in Lizama's financial situation as well as his criminal record—they would want to know how Lizama made his money in the United States and whether he was affiliated with any gang. In short, Dr. Vanden testified, gangs in El Salvador would target Lizama as a "person of interest" because of his age, muscular and tough appearance, criminal record, and financial situation. J.A. 107-09.

Dr. Vanden believed it was "very doubtful" the government of El Salvador would protect Lizama from gangs because the police are not always present in San Moritas, where Lizama might live. J.A. 401-02. He conceded, however, that most middle- and upper-class individuals live in walled-off neighborhoods and that Lizama could find full protection from the widespread violence by living in such a community.

Lizama submitted as additional evidence the State Department's 2007 "Issue Paper" entitled Youth Gang Organizations in El Salvador, which recognized criminal gang organizations as a "serious and pervasive socio-economic challenge to the security, stability and welfare of El Salvador." J.A. 384. The Issue Paper also stated, however, that the "Salvadoran government's strong-hand law enforcement policy may be having a noticeable effect on gang behavior, and at least in the short term, in controlling gang violence." Id. at 392.

The IJ found Lizama credible, but denied him relief. First, the IJ deemed Lizama's asylum application untimely because it was filed more than one year after he entered the United States. The IJ rejected Lizama's argument that his relatively recent accumulation of wealth established "changed circumstances" that would justify an exception to the one-year filing period. With respect to withholding ofremoval, the IJ concluded that being a "young, Americanized, well-off Salvadoran male deportee with a criminal history who opposes gangs" did not qualify Lizama for membership in a social group possessing the common, immutable characteristics and recognized level of visibility and particularity required by BIA precedent. Even if Lizama could show he was a member of a protected social group, the IJ went on to conclude that he could not show a likelihood that he would be persecuted on that basis if returned to El Salvador. Finally, the IJ denied Lizama protection under the CAT based on evidence that Lizama could avoid danger by living in a middle-class area, and could not prove the government of El Salvador would acquiesce in his torture.

Lizama appealed the decision to the BIA, which affirmed the IJ's determinations. It agreed that Lizama was statutorily ineligible for asylum due to the untimely filing of his application, rejecting Lizama's argument that the changed circumstances of recently accumulated wealth excused the delay. In addition, the BIA found that Lizama had failed to establish that he belonged to a legally cognizable social group for purposes of withholding of removal. Finally, the BIA upheld the IJ's denial of relief under the CAT. Finding Lizama ineligible for relief, the BIA ordered him removed. This timely petition for judicial review followed.

II.

On appeal, Lizama raises three arguments. First, he asserts that the BIA erred in holding his asylum application to be untimely. Lizama specifically contends that the IJ erroneously interchanged the proper standard of "changed circumstances" with that of "exceptional circumstances." Second, Lizama argues that the BIA erred by ruling that he failed to establish membership in a legally cognizable social group as the basis for his withholding of removal claim. According to Lizama, it incorrectly analyzed his purported social group, focusing on each of the group's characteristics individually instead of considering them "in totality." Lizama lastly argues that, contrary to the BIA's findings, the evidence in the record is sufficient to support his claim for protection under the CAT. We review each contention in turn.

In so doing, we must uphold the BIA's determinations unless "manifestly contrary to the law and an abuse of discretion" and must "treat findings of fact as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary." Mirisawo v. Holder, 599 F.3d 391, 397 (4th Cir.2010) (citations and quotations omitted); see also 8 U.S.C. § 1252(b)(4)(B), (D).

A.

We first turn to Lizama's challenge to the denial of his asylum application. An alien must file an application for asylum within one year of arriving in the United States. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2)(ii). Asylum applications may be considered beyond the one-year deadline, however, if an applicant demonstrates (1) "changed circumstances which materially affect the applicant's...