Zetino v. Holder Jr.
Decision Date | 30 August 2010 |
Docket Number | No. 08-70390.,08-70390. |
Citation | 622 F.3d 1007 |
Parties | Ronald M. ZETINO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Niels W. Frenzen, Esq., (argued), University of Southern California Law School Immigration Clinic, Los Angeles, CA, for petitioner Zetino.
Sunah Lee, Esq., (argued), U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., Ronald E. LeFevre, Esq., Department of Homeland Security, Office of the District
Counsel, Los Angeles, CA, for respondent Attorney General Holder.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A094-175-859.
Before: CYNTHIA HOLCOMB HALL and RICHARD C. TALLMAN, Circuit Judges, and DAVID M. LAWSON, * District Judge.
The opinion filed on February 18, 2010, and reported at 596 F.3d 517, is amended. The amended opinion filed concurrently with this order is substituted in its place.
With the filing of the amended opinion, the panel has unanimously voted to deny the petition for panel rehearing. Judge Tallman has voted to deny the petition for rehearing en banc, and Judges Hall and Lawson so recommend. The full court has been advised of the petition for rehearing and petition for rehearing en banc, and no judge of this court has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35(f).
The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc may be filed.
Ronald Zetino (“Zetino”), a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals (“BIA”) decision upholding an Immigration Judge's (“IJ”) denial of his applications for asylum and withholding of removal. We deny his challenges on the merits.
Zetino illegally entered the United States on December 5, 1989, at San Ysidro, California. Zetino was detained on May 1, 2001, and placed in removal proceedings on May 15, 2001. He was charged with removability pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled.
At Zetino's first removal hearing on May 31, 2001, the IJ informed him of his right to counsel and right to call witnesses on his behalf. The IJ also provided Zetino with a list of free legal aid services. Zetino acknowledged those rights, waived them, admitted to the allegations against him, and conceded removability. Zetino informed the IJ that he feared persecution upon return to El Salvador, at which time the IJ gave him an application for asylum. At a continued removal hearing on June 11, 2001, Zetino did not submit an application for asylum, but instead requested a continuance to find an attorney. The IJ granted that request, noting that Zetino claimed to have obtained an attorney who had decided not to represent him “at the last minute.”
Zetino's next removal hearing took place on September 27, 2005, after an additional continuance during which he remained incarcerated. At that hearing, the IJ once again informed Zetino of his right to counsel, which Zetino acknowledged. The IJ then granted Zetino yet another continuance to obtain counsel. Zetino finally filed his application for asylum on October 25, 2005.
Zetino's hearing on the merits of his asylum application began on May 14, 2007. Zetino appeared pro se, apparently unable to obtain counsel in the six years since his first hearing. The IJ took testimony from Zetino, his mother, and his sister.
Zetino testified that he was afraid to return to El Salvador because he had been told that in 1993 six members of his family had been killed by gunfighters attempting to steal his grandfather's land. Zetino noted that this event took place after his illegal arrival in the United States and that he only found out about it through word of mouth. When the IJ asked him to explain the motive for the murders, Zetino responded, “Some farmers who supposedly ... were my grandfather's friends and they wanted more land so they could cultivate on that [sic] and my grandfather did not want to release the land to them.” Zetino also testified that he feared gang members would attempt to recruit or harm him. He stated simply,
Zetino's mother testified that masked gunmen had killed members of her family for “revenge because of some properties, some land [sic].” Zetino's sister testified that she was not in El Salvador at the time of the alleged killings.
After taking testimony, the IJ rendered an oral decision in which she determined Zetino had testified credibly but still failed to demonstrate a well-founded fear of persecution based on statutorily-protected grounds. The IJ ruled that Zetino failed to establish a nexus between the murder of his relatives or gang recruitment and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. As to the killing of his relatives, the IJ noted that it
On September 6, 2007, Zetino filed a pro se Notice of Appeal to the BIA stating that he disagreed with the IJ's decision that “[he] didn't prove [his] case.” Zetino's Notice of Appeal contained a well-articulated statement of his case. He argued that his “fear of persecution and torture is based on the assassination of [his] family members and relatives by 11 masked gunmen who assassinated them and who are still at large.” He also stated that he feared “gang members who are at large, who sell drugs and arms, who also hurt and rob people like [him], because [he] also [has] tattoos (none gang-related) and they would mistake [him] for being a rival gang member.”
On October 20, 2007, Zetino was transferred from the San Pedro Detention Complex in Los Angeles, California, to the South Texas Detention Complex in Pearsall, Texas. On October 23, 2007, the BIA issued a briefing schedule notifying Zetino of a November 13, 2007, deadline to file an appellate brief. Zetino properly notified the BIA of his move with a change of address form on October 31, 2007, and as a result the BIA granted him a filing extension from his original deadline of November 13, 2007, to November 30, 2007. Despite notice of the extension, Zetino did not file a brief before this extended deadline.
It is well-established that an asylum applicant's fear of harm resulting from general conditions of violence and civil unrest affecting the home country's populace as a whole does not constitute a “well-founded fear of persecution” within the meaning of the Act.
Furthermore, the BIA reasoned that Zetino's fear of harm by criminals or gangs did not “establish that he belongs to a ‘particular social group’ within the meaning of section 101(a)(42)(A) of the Act.” The BIA relied on our decision in Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007), where we held that a tattooed alien's membership in a violent criminal gang was not “social group” membership for withholding of removal purposes.
Zetino now timely petitions for review of the BIA's decision to reject his untimely brief as well as its decision to uphold the IJ's ruling denying his applications for asylum and withholding of removal. 1 He presents three distinct challenges, two procedural and one substantive.
First, Zetino claims the BIA's discretionary ruling refusing to accept his untimely brief or to extend the filing period was a violation of his due process rights and an abuse of discretion. We find that the BIA's denial of the brief in this instance neither violated Zetino's due process rights nor constituted an abuse of discretion.
Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record.
Third, Zetino claims substantial evidence does not support the BIA's decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino...
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