Guerra-Carranza v. Lynch , 643 F. App'x 2 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1227
KARLA DANIELA GUERRA-CARRANZA,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Stahl, and Barron,
Circuit Judges.
Ondine G. Sniffin and Mills and Born, Attorneys at Law, on
brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, John S. Hogan, Assistant Director, Office
of Immigration Litigation, and Matthew A. Spurlock, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
May 23, 2016
BARRON, Circuit Judge. Karla Daniela Guerra-Carranza is
a native and citizen of El Salvador. The Board of Immigration
Appeals (BIA) dismissed her appeal of a decision by the Immigration
Judge (IJ) denying her successive application for asylum and her
petition for protection under the Convention Against Torture
(CAT). She petitions for review. For the reasons that follow, we
deny the petition.
I.
Guerra arrived in the United States in December 2006.
She was apprehended at the Mexican border upon arrival and was
placed in removal proceedings soon thereafter. Guerra conceded
removability and submitted an application for asylum, withholding
of removal, and CAT protection. With respect to her asylum
application, she alleged that from the seventh grade until her
graduation from high school in November 2006, she was repeatedly
confronted by gang members who threated to sexually abuse and rape
her if she failed to join the gang.
After a hearing, the IJ granted Guerra's application for
asylum. The IJ found that Guerra was "a member of a group of girls
attending a Catholic school who are considered to be of intellect
and ambition," that she had experienced past persecution by gangs
in El Salvador on account of her membership in that group, and
that she had a reasonable fear of future persecution.
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The BIA reversed. The BIA held that "being a girl who
attends Catholic school" was not a cognizable social group for the
purposes of asylum. The BIA further held that Guerra had failed
to establish eligibility for withholding of removal and remanded
the case to the IJ to determine whether Guerra was subject to CAT
protection. Guerra did not appeal the BIA's decision to this
court.
On remand, Guerra submitted a new application for
asylum, along with supporting documentation. The IJ then held an
evidentiary hearing on whether Guerra was eligible for CAT
protection. At that hearing, Guerra testified that her parents,
who lived in El Salvador, had passed away, that her sisters and
husband had recently arrived in the United States, that there was
"no one in [her] country that could protect [her]," and that the
gangs in El Salvador were more active than when she first applied
for relief from removal.
The IJ denied Guerra's request for CAT protection.
Regarding Guerra's new application for asylum, the IJ stated that
Guerra "ha[d not] established either changed circumstances or
changed country conditions such as to warrant a re-opening of her
asylum claim in that the same basis remains for her eligibility
for asylum as in the past."
The BIA affirmed. The BIA held that Guerra had not
demonstrated entitlement to CAT relief, and that the IJ "correctly
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determined that [Guerra] did not establish either changed
circumstances or changed country conditions to warrant a reopening
of her asylum claim."
Guerra petitions for review of the BIA's decision on her
asylum petition.1
II.
Both parties characterize Guerra's request to the IJ as
one to file a successive application for asylum. As the parties
agree on this point, we proceed on that understanding as well.
The Immigration and Nationality Act provides that an
alien may file an application for asylum "within 1 year after the
date of the alien's arrival in the United States," as long as the
alien has not "previously applied for asylum and had such
application denied." 8 U.S.C. § 1158(a)(1), (a)(2)(B), (a)(2)(C).
However,
[a]n application for asylum of an alien may be
considered, notwithstanding [the time and
number restrictions], if the alien
demonstrates to the satisfaction of the
Attorney General either the existence of
changed circumstances which materially affect
the applicant's eligibility for asylum or
extraordinary circumstances relating to the
delay in filing an application.
1
Guerra does not contend that she is eligible for protection
under the CAT, and so any such argument is waived. See Toloza-
Jiménez v. González, 457 F.3d 155, 159 n.9 (1st Cir. 2006).
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Id. § 1158(a)(2)(D). The regulations define "changed
circumstances" as including, among other things, "[c]hanges in
conditions in the applicant's country of nationality" and
"[c]hanges in the applicant's circumstances that materially affect
the applicant's eligibility for asylum."
8 C.F.R. § 1208.4(a)(4)(i)(A)-(B).
Guerra argues to us that the BIA erred in concluding
that she had not shown changed circumstances sufficient to warrant
consideration of her successive asylum application. Where, as
here, "the BIA adopts and affirms an IJ's decision, we review the
IJ's decision 'to the extent of the adoption, and the BIA's
decision as to [any] additional ground.'" Sunoto v. Gonzales, 504
F.3d 56, 59-60 (1st Cir. 2007) (quoting Berrio-Barrera v. Gonzales,
460 F.3d 163, 167 (1st Cir. 2006)) (alteration in original).
We are limited, however, in our ability to review the
BIA's decision that Guerra has not shown changed circumstances.
We have jurisdiction over the petition for review only to the
extent that Guerra "identifies a legal or constitutional defect in
the decision." See El-Labaki v. Muaksey, 544 F.3d 1, 5 (1st Cir.
2008) (citing 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D)). Otherwise,
we lack jurisdiction. Id.III.
Guerra makes several arguments to us. She first contends
that the IJ erred in concluding that "he lacked jurisdiction to
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hear [her] successive application for asylum." But the IJ did not
hold that he lacked jurisdiction to hear Guerra's successive
application. Rather, after speculating that he might not have
"the authority" to consider that application, the IJ in fact ruled
on Guerra's successive application. And so that argument fails.
Guerra next argues that she presented sufficient
evidence to the IJ to warrant a finding of changed country
conditions. But Guerra identifies no legal or constitutional error
in the BIA's decision affirming the IJ's decision that she did not
show changed country conditions. Rather, she contends that the
BIA erred in not finding that, because the conditions in El
Salvador had worsened for young women, the country conditions had
changed. Her challenge, therefore, regards a factual
determination, which we are without jurisdiction to review. See
Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).
Guerra also contends that the evidence she presented to
the IJ warranted a finding of changed personal circumstances. She
contends that she introduced evidence that since the filing of her
first petition for asylum, she had married, both her parents had
died, and her sister had arrived in the United States. And she
contends that this evidence established that, were she required to
return to El Salvador, she "would be a member of a particular
social group defined as 'unaccompanied women returning to El
Salvador after living in the United States' or 'women in El
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Salvador lacking familial protection,' and therefore the target of
[gangs]."
The problem for Guerra is that she never presented her
argument about the social groups to which she belongs to either
the IJ or the BIA. We appreciate Guerra's argument that she never
had the opportunity to provide the argument to the IJ because the
IJ cut her off. Guerra did, however, have the opportunity to make
the argument to the BIA in appealing the IJ's ruling. And although
Guerra did summarize to the BIA the facts that she had presented
to the IJ that suggested that she was not part of the same social
group that the BIA had previously rejected -- "girls attending a
Catholic school who are considered to be of intellect and
ambition" -- she made no argument to the BIA as to how those new
facts placed her in a cognizable social group for the purposes of
asylum. Thus, we do not have jurisdiction to determine whether
her purported membership in either of these two claimed social
groups renders the denial of her asylum application erroneous.
See Sunoto, 504 F.3d at 59.
Finally, Guerra argues that she was denied due process
when, at her evidentiary hearing, the IJ "cut-off [sic] further
discussion about [her] request of renewed asylum." But a
successful due process claim requires a showing of prejudice. See
Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004). And the only
argument we can plausibly infer from Guerra's brief regarding
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prejudice is the same argument we have explained was not presented
to the BIA -- namely that, had the IJ not cut her off, she would
have successfully explained that her new personal circumstances
placed her in two new social groups for asylum purposes. And so
here, too, her contention fails, as it depends on an argument that
was never made to the BIA. Sunoto, 504 F.3d at 59.2
IV.
The petition for review is denied.
2 We note that the facts set forth in this petition suggest
it may be appropriate for the Government to consider whether to
exercise its prosecutorial discretion in this case.
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