Cruz-Martinez v. Sessions, 14-3754

Decision Date14 March 2018
Docket NumberNo. 14-3754,14-3754
Citation885 F.3d 460
Parties Jesus Antonio CRUZ–MARTINEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Royal F. Berg, Attorney, Law Office of Royal F. Berg, Chicago, IL, for Petitioner.

Benjamin M. Moss, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Flaum, Easterbrook, and Manion, Circuit Judges.

Manion, Circuit Judge.

Jesus Antonio Cruz–Martinez petitions this Court to review the decision of the Board of Immigration Appeals (Board) affirming the decision of the Immigration Judge (IJ). Cruz–Martinez argues on appeal that the Board erred by failing to consider his asylum claim and the reinstatement of his prior order of removal, denying him withholding of removal and protection under the Convention Against Torture (CAT), and violating his right to due process by refusing to remand his case to the IJ for consideration of new evidence. We conclude his challenges are meritless and deny the petition for review.

I. Background

A citizen of Mexico who was born in 1977, Cruz–Martinez first came to the United States from Mexico illegally in 1993. He was removed to his home country in 2002 under a signed, stipulated removal order dated October 22, 2002. This removal order is captioned "In the Matter of: Rocha–Martinez, Jose," which is an alias that Cruz–Martinez has used.

Cruz–Martinez states that in 2005 two armed men who had previously fought with his brothers threatened him at his mother’s home in Mexico while they were looking for one of his brothers. His mother contacted the local police about the threat to Cruz–Martinez, but the police did nothing. According to Cruz–Martinez, the local police did nothing because the armed men had paid them off. Two months following this incident, Cruz–Martinez returned to the United States without permission.

While in the United States a second time, Cruz–Martinez acquired various criminal convictions including convictions for aggravated assault, possession of cocaine, and obstructing police. Cruz–Martinez also married a United States citizen with whom he has a child. He is also a step-father to her three other children. Additionally, since Cruz–Martinez returned to the United States in 2005, all of his siblings and his mother have come to reside in the United States. Some of his family members, including his mother, have gone back and forth to Mexico without incident, and none of his family members have sought protection from persecution.

In 2014, the Department of Homeland Security reinstated the 2002 removal order. Expressing fear of being returned to Mexico, Cruz–Martinez was interviewed by the Asylum Office in Chicago, which made a positive reasonable-fear determination. Cruz–Martinez then applied for protection from persecution with the Immigration Court. Before the IJ, Cruz–Martinez testified that he is afraid that if he returns to Mexico, he will be kidnapped, subjected to extortion, tortured, and killed. He cites a fear of the two armed men who attacked him, as well as gangs and organized crime in Mexico. Cruz–Martinez’s wife also testified, including about having been robbed at gunpoint in Mexico when she visited during her prior marriage.

The IJ denied Cruz–Martinez’s application. The IJ held that while Cruz–Martinez testified credibly, he did not establish a clear probability of either persecution or torture. The IJ found that the incident involving the two armed men in 2005 was isolated and insufficiently severe to constitute past persecution, and there was no pattern of ongoing or escalating harm. The IJ also noted that after the incident in 2005, he remained in Mexico for two months. During that time no one sought to harm Cruz–Martinez, no one in his family was harmed, and his brother did not file a claim for protection. Regarding Cruz–Martinez’s fears based on the deteriorating conditions in Mexico, the IJ cited the fact that members of Cruz–Martinez’s family traveled back and forth to Mexico without incident. Finally, the IJ found that Cruz–Martinez did not present any evidence that "he would be detained or subjected to torture" by either the government or someone else with the government’s acquiescence. The IJ made particular note that deportees do not constitute a particular social group and that while those with family in the United States may have an increased likelihood of being kidnapped for extortion that "does not convert them into people who are being persecuted on account of their membership in a particular group or for any reason other than generalized criminal misconduct."

The Board affirmed the IJ’s decision. Specifically, the Board found the IJ did not err in determining that Cruz–Martinez failed to meet his burden of proof for relief. The Board rejected Cruz–Martinez’s claim that the isolated threat and generalized crime supported a claim for persecution. Regarding his prior removal order, the Board noted that Cruz–Martinez conceded to using the name listed on the 2002 stipulated removal order during his asylum interview. Finally, the Board denied Cruz–Martinez’s request for the IJ to consider new evidence that he submitted to the Board, namely the U.S. State Department’s travel warning for Mexico and recent news articles about conditions in Mexico. The Board concluded that Cruz–Martinez did not establish that this new evidence would alter the outcome of his case.

Following the Board’s affirmance of the IJ’s decision, Cruz–Martinez filed this petition for review.

II. Analysis

Challenging the stipulated order of removal, Cruz–Martinez argues that he should be in removal and not withholding-only proceedings. He contests the content of the stipulated order of removal, including the name on the caption, "In the Matter of Rocha–Martinez, Jose." Cruz–Martinez’s challenge is unavailing. In his asylum interview, Cruz–Martinez conceded that he used the name listed on the stipulated removal order. Moreover, Cruz–Martinez failed to challenge the stipulated removal order within thirty days of its entry, which was October 23, 2002. 8 U.S.C. § 1252(b)(1) ("The petition for review must be filed not later than 30 days after the date of the final order of removal."); Torres–Tristan v. Holder , 656 F.3d 653, 656 (7th Cir. 2011) ("We do not look behind the reinstatement to entertain challenges to the earlier, underlying removal order.") (citation omitted). Finally, Cruz–Martinez argues that his due process rights were violated based on the reinstatement of the prior removal order because the reinstatement was unsigned and his case should be remanded for consideration of this issue. As we have previously noted, our "jurisdiction in such an instance extends only to the question whether the reinstatement order was properly entered; we cannot look behind that order to the underlying removal order." Gomez Chavez v. Perryman , 308 F.3d 796, 801 (7th...

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