Zetino v. Holder

• Citation: 596 F.3d 517
• Decision Date: 18 February 2010
• Docket Number: No. 08-70390.,08-70390.
• Parties: Ronald M. ZETINO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

596 F.3d 517

Ronald M. ZETINO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08-70390.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2009.

Filed February 18, 2010.

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, DC, 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.

Opinion by Judge TALLMAN; Concurrence by Judge LAWSON.

TALLMAN, Circuit Judge.

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 must decide whether we have jurisdiction to review for abuse of discretion the BIA's discretionary denial of a petitioner's motion to accept an untimely brief. We hold we lack jurisdiction over this part of the petition because there is no meaningful standard against which to judge the agency's exercise of discretion. We deny the remaining challenges on the merits.

I

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, "There are too many gang members. I don't think that I will be able to work there at [inaudible] with ease."

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 "was clearly a personal dispute, if anything, amongst the ones who wanted to cultivate the land next door. ... This is not a basis for asylum or withholding of removal under the Act."

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.

Five days after missing the filing deadline, on December 5, 2007, Zetino secured the representation of the University of Southern California Law School Immigration Clinic. On December 14, 2007, his counsel filed a Motion to Accept Late Brief and Motion for Extension of Time requesting the BIA accept a late brief or extend the filing deadline to "accommodate student exams and the ensuing winter break." The BIA found "the reasons stated by the respondent insufficient for [it] to accept an untimely brief in [its] exercise of discretion." The BIA also denied the extension request "as it was received after the expiration of the filing deadline."

Despite Zetino's failure to properly file an appellate brief, the BIA considered the merits of his application because he had sufficiently articulated his challenges to the IJ's decision in his Notice of Appeal. The BIA subsequently upheld the IJ's determination on the merits. The BIA reasoned that neither Zetino's fear of "the eleven unidentified masked gunmen who fatally shot his aunt, uncle, and at least three cousins in 1993 and who remain at large" nor his fear of "gang members [who] might mistake him for a member of a rival gang because he has tattoos" established a well-founded fear of persecution "on account of his race, religion, nationality, membership in a particular social group, or political opinion." The BIA supported its conclusion by noting,

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. The government argues that we do not have jurisdiction over the abuse of discretion challenge to the denial of the motion to accept a late brief because there is no meaningful standard against which to judge the discretionary ruling. We agree. However, we do have jurisdiction to review the BIA's denial of a motion to accept an untimely brief for a violation of due process. We find that the BIA's denial of the brief in this instance did not violate Zetino's due process rights.

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 fears return to El Salvador because in 1993...