Amaya v. Sessions, 16-4042
| Decision Date | 16 June 2017 |
| Docket Number | No. 16-4042,16-4042 |
| Parties | HECTOR AMAYA, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
Before DIANE P. WOOD, Chief Judge KENNETH F. RIPPLE, Circuit Judge DIANE S. SYKES, Circuit Judge
Petition for Review of an Order of the Board of Immigration Appeals.
Hector Amaya, a 48-year-old citizen of Mexico, has been trying to avoid removal from the United States for some time. He failed to persuade the Board of Immigration Appeals that he ran a serious risk of torture if he were to be returned to Mexico, but he did not ask this court to review that decision. Instead, he returned to the Board with a motion to reconsider its adverse ruling. The Board stuck to its guns and denied relief. This time, Amaya did file a petition for review of the latter decision. In this situation, the only order before us is the Board's refusal to reconsider its first decision. Because Amaya has not offered any reason to find error in that decision, we must deny his petition for review.
Amaya fled Mexico in 2006 because he feared that his life was threatened by gangs in his home town. He slipped into the United States through Arizona without authorization and found work as a farmhand grooming horses; he earned roughly $480 weekly at that job. He sent part of each check to his wife and three children, who remained in Lagos de Moreno, in the State of Jalisco, Mexico. Amaya came to the attention of the Department of Homeland Security in 2014 after he pleaded guilty to driving while intoxicated.
The government brought removal proceedings against Amaya for being present in this country without proper admission or parole, see 8 U.S.C. § 1182(a)(6)(A)(i). At a removal hearing, he conceded his removability but expressed his desire to apply for withholding of removal. Immigration Judge (IJ) Eliza Klein granted him a continuance to file the appropriate motion.
Amaya applied for relief on several grounds, but only one remains relevant at this point: that he is eligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(A) because he fears persecution from some unspecified gangs on account of his membership in the social group of Mexican citizens who may be perceived as possessing "greater economic means" after having lived in the United States, where "earnings are significantly higher" than in Mexico. Amaya supplemented his application with reports issued in 2013 by the U.S. Department of State and the Congressional Research Service that recount instances of extortionate kidnapping carried out by gangs across Mexico. The reports also mention the rise of a gang called the Jalisco Cartel-New Generation, which operates in his home town of Lagos de Moreno.
At the next hearing, which was before IJ Robert Vinikoor, Amaya testified that "dangerous" gangs in Lagos de Moreno intimidate residents and steal their belongings. While he still lived there, gang members on one occasion broke the windows of his home and on another, sat on his porch without his family's permission. The family contacted the police after these incidents, but each time officials ignored their pleas for help. Shortly after Amaya moved to the United States, his wife received a ransom call in which an unknown person claimed (falsely, as it turned out) that Amaya had been abducted and demanded money for his return. The gang members continued to phone threats to Amaya and his wife, calling the wife as recently as eight days before the hearing. Amaya reported that the gang members also insulted, shouted, and threw stones at his wife. Amaya said that he feared that if he were removed to Mexico, he would be abducted by gang members who know he has lived in the United States and regard him as having money.
In August 2015, IJ Vinikoor denied Amaya's application for withholding and ordered him removed. The IJ first rejected his proposed social group as "too broad to meet the particularity and social distinction requirements" because it encompassed "all individuals returning to Mexico regardless of what area they return to and at what social economic level." Second, the IJ found that Amaya failed to establish a nexus between his membership in his alleged group and his fear of being targeted by gangs. Amaya, the IJ said, demonstrated not that he feared harm on account of group membership, but rather that "criminal elements in Mexico attack people for a criminal motive to gain money." Last, the IJ concluded that Amaya failed to establish that he faced likely persecution if he returned to Mexico because he had shown only a generalized threat of harm and minor harassment, rather than anything specific about himself. Indeed, as the IJ noted, Amaya's wife and children continue to reside in the town in relative safety.
Amaya appealed this adverse decision to the Board of Immigration Appeals, but on June 22, 2016, the Board adopted and affirmed the IJ's decision. The following month Amaya asked the Board to reconsider its affirmance. His motion repeated his argument that the record showed that he had "suffered past persecution or that he ha[d] a well-founded fear of future persecution on account of a protected ground." His brief to the Board, however, contained little elaboration and only generally referred to his oral testimony and affidavit. On October 31, 2016, the Board denied reconsideration. In that order, it explained that Amaya "failed to advance any specific argument regarding any error in our prior decision" and that it found "no error in law or fact, or argument that was overlooked, that would warrant further consideration."
One month later, Amaya petitioned this court to review the Board's order of October 31, 2016, denying reconsideration.
Amaya's brief in this court focuses almost exclusively on the Board's order of June 22, in which it denied his application for withholding. He insists that the Board erred in this order, that he demonstrated his entitlement to that relief, and that the Board should have fixed this error in response to his motion to reconsider. The section headings of his brief reflect his disagreement with the underlying denial: "Mr. Amaya belongs to a particular social group"; "Mr. Amaya is likely to suffer persecution in Mexico"; and "There is a nexus between Mr. Amaya's social group and the persecution he anticipates."
We do not, however, have jurisdiction to review the June 22 order, because Amaya did not file any petition for review (timely or otherwise) of that decision. Instead, he filed a motion to reconsider it with the Board. Such a motion does not have the effect of extending the 30-day filing deadline for seeking judicial review of the Board's underlying...
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