Duarte-Salagosa v. Holder, 14–2276.
| Decision Date | 30 December 2014 |
| Docket Number | No. 14–2276.,14–2276. |
| Citation | 775 F.3d 841 |
| Parties | Sebastian DUARTE–SALAGOSA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gerardo S. Gutierrez, Attorney, Law Office of Gerardo S. Gutierrez, Chicago, IL, for Petitioner.
OIL, Attorney, Meadow W. Platt, Attorney, Department of Justice, Washington, DC, for Respondent.
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
Sebastian Duarte–Salagosa seeks review of a decision of the Board of Immigration Appeals (Board) that affirmed a ruling by an immigration judge (IJ) denying his claim for asylum and withholding of removal. Because we lack jurisdiction to review the Board's ruling that the asylum claim was untimely, we dismiss that claim. For the reasons set forth in this opinion, we also deny the petition for withholding of removal and protection under the Convention Against Torture.
The factual record in this case is spare and largely confined to the procedural history, none of which is favorable to our petitioner, Sebastian Duarte–Salagosa (Duarte). A native and citizen of Mexico, Duarte entered the United States without inspection at some time around June 1, 2000. Almost eleven years later, following a trial in which he was acquitted of charges of heroin trafficking, the Department of Homeland Security issued a Notice to Appear on February 22, 2011. Duarte did not appear for his hearing, and a removal order was issued in absentia on March 24, 2011.
After Duarte sent a letter to the IJ in which he claimed to have been unaware of the notice, the IJ reopened the proceedings, whereupon Duarte applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In his application for asylum, Duarte claimed that he feared returning to Mexico because he had cooperated with the United States Drug Enforcement Agency (DEA) and feared retribution from the Zeta drug cartel.
At the hearing, the IJ questioned Duarte, who denied that he cooperated with the DEA or that he was threatened by the Zeta cartel as a result of any purported association with law enforcement. Instead, he claimed that the conflict stemmed from a run-in that he had with the cartel almost fifteen years earlier. Prior to entering the United States, Duarte—who was in the business of selling used cars—was kidnapped by cartel members and held for ransom. He ultimately escaped, earning not only his freedom but also the consternation of the cartel, which duly responded by issuing death threats against him. At the hearing, Duarte insisted that the threats were ongoing. He submitted an affidavit from a friend in Mexico who received phone calls from persons suspected to be cartel members warning that Duarte would face retribution if he returned to that country. The IJ denied Duarte's application for asylum and withholding of removal but granted him voluntary departure.
On appeal, the Board held that Duarte's asylum petition failed as it neither met the statutory filing deadline nor established that he qualified for an exception due to “changed circumstances.” For his petition for withholding of removal, Duarte asserted for the first time on appeal that he was targeted for persecution because of his “membership in the particular group of successful business[men] who have come under extortionate attacks by the ever-increasing influence of the Zeta drug cartels fighting for the heart and soul of Mexico's business and economic structure.” Pet'r. Br. Ex. 2 at 2. The Board held that Duarte had failed to preserve this issue because he did not make this argument in his initial application or with the IJ. Nonetheless, the Board considered Duarte's testimony about his kidnapping at the hands of cartel members and determined that the cartel detained him for the purposes of obtaining money rather than to persecute him for his race, religion, or any other grounds recognized by law.
Finally, although Duarte raised a claim for CAT protection in his application, he did not argue this claim before either the IJ or the Board, nor did he submit any evidence to suggest the possibility of torture at the hands (or with the acquiescence) of government actors. As a result, neither the IJ nor the Board ruled on this claim. Nonetheless, Duarte contends that the evidence in the record is sufficient to preserve his claim for CAT protection and asks us to review it now.
An alien must file an application for asylum within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). Although Duarte's claim—filed eleven years after arriving in this country—is clearly untimely, he could still proceed with his petition if he were to demonstrate “either the existence of changed circumstances which may materially affect his eligibility for asylum or extraordinary circumstances relating to the delay in filing the application within the one year time period.” Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir.2013). However, for us to review his claim, Duarte must also establish an additional factor, namely the existence of a constitutional question or question of law related to the timely filing of an asylum application. Id. (citing 8 U.S.C. § 1252(a)(2)(D) ). Absent a question of this nature, the court may not review the Board's denial of asylum. Id.; Khan v. Filip, 554 F.3d 681, 687–88 (7th Cir.2009).
Duarte presents neither a timely claim nor a question of law—constitutional or otherwise—related to the timeliness of the filing. He merely asks us to review the Board's factual determination that no changed or extraordinary circumstances existed to excuse his late filing. We lack jurisdiction to do this. Tian v. Holder, 745 F.3d 822, 825–26 (7th Cir.2014) ; 8 U.S.C. § 1158(a)(3).
In addition to denying his asylum claim, the IJ denied Duarte's petition for withholding of removal. The Board provided its own analysis to support its decision to deny withholding of removal. Accordingly, we review both decisions. Bathula v. Holder, 723 F.3d 889, 897 (7th Cir.2013). The standard of review is a deferential one: we will not reverse an agency decision simply because we would have decided the case differently; we reverse only if any reasonable adjudicator would be compelled to conclude the contrary. Bueso–Avila v. Holder, 663 F.3d 934, 937 (7th Cir.2011). An alien is entitled to withholding of removal under the INA if he can show through direct or circumstantial evidence a “clear probability” that his “life or freedom would be threatened ... because of the alien's race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A) ; Khan, 554 F.3d at 690 ; Bueso–Avila, 663 F.3d at 937.
The record in this case is devoid of any evidence suggesting that Duarte has been or will be subject to persecution on account of his race, religion, nationality, membership in a political group or political opinion. When questioned by the IJ, Duarte disclaimed the rationale put forth in his application, namely that he faced likely retribution from the Zeta cartel on account of his cooperation with law enforcement. Instead, he claimed that he faced persecution because the cartel, after fifteen years, still harbored resentment because he escaped their captivity without paying ransom. The IJ found this reason insufficient, informing Duarte that: “[t]he fact that [cartel members] are angry at you, and want revenge against you, does not qualify you for asylum or withholding of removal.” Pet'r. Br. Ex. 3 at 36.
Duarte refined his argument on appeal to the Board, introducing for the first time a claim that he was targeted for persecution on account of his “membership in the...
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