Lopez-Garcia v. Holder , 601 F. App'x 725 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 10, 2015
Elisabeth A. Shumaker
Clerk of Court
JULIO CESAR LOPEZ-GARCIA,
a/k/a Alan Antonio Perez,
Petitioner,
v. No. 14-9535
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.
An immigration judge (IJ) ordered petitioner Julio Cesar Lopez-Garcia
removed to El Salvador; pretermitted his application for asylum; and denied his
applications for temporary protected status (TPS), withholding of removal, and relief
under the Convention Against Torture (CAT). Mr. Lopez appealed to the Board of
Immigration Appeals (Board or BIA). The BIA dismissed his appeal. He then filed a
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
motion for reconsideration. The BIA construed his motion as one for both
reconsideration and reopening and denied it. Mr. Lopez now petitions for review of
the BIA’s decision. We deny his petition for review in part and dismiss in part for
lack of jurisdiction.
I. BACKGROUND
Mr. Lopez is a citizen and native of El Salvador. He entered the United States
on or about January 20, 2001, without inspection and has resided in this country ever
since.1 In 2002, he filed an application for TPS, which was rejected. He refiled the
application in 2003, and it was again rejected.
On November 5, 2008, the Department of Homeland Security issued a notice
to appear charging him with being an alien unlawfully present in the United States
without inspection and subject to removal. He conceded the charge but filed an
asylum application, which the IJ considered in connection with his removal
proceedings.
At the hearing on his asylum application, Mr. Lopez testified that he worked
for a bus company in El Salvador from 1995 until September 2000. He was assigned
to a bus line that ran from Sonsonate to San Salvador. Gangs regularly extorted
money from him while he was driving his route. Mr. Lopez and his employer went to
the police about the extortion. But according to Mr. Lopez, the police did nothing.
1
In his asylum application, Mr. Lopez stated he arrived in the United States
one month earlier, on December 20, 2000. This discrepancy is not material to the
petition for review.
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Mr. Lopez paid the gang members money until one day when he did not have any.
When he failed to pay that day, the gang members beat and threatened to kill him.
Mr. Lopez stated he did not go to the hospital after the beating because he
could not afford it and because “my mother took care of me.” Admin. R. at 246. He
said he knew of other bus drivers who had been harmed or killed by gang members.
He also related that someone killed his step-father in El Salvador in December 2010.
Although the perpetrators were never caught, Mr. Lopez believes they were gang
members. To support his request for asylum, Mr. Lopez claimed to be a member of a
social group of “individuals who are subject to gang violence, threats of violence and
actual harm as a result of their employment through public transportation.” Id. at 94.
Soon after the beating incident on the bus, Mr. Lopez decided to come to the
United States. His counsel explained that Mr. Lopez did not file an asylum
application until he was in removal proceedings because he believed that he was in
valid status due to his application for TPS.
In her decision, the IJ found that (1) Mr. Lopez failed to meet his burden to
establish eligibility for TPS; (2) his application for asylum was untimely under the
one-year filing deadline without adequate excuse; (3) he was not otherwise eligible
for either asylum or withholding of removal because he failed to demonstrate that
“the harm he suffered in the past or the harm that he fears in the future is on account
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of one of the five enumerated [statutory] grounds,” id. at 96;2 and (4) he failed to
demonstrate, in connection with his application for CAT relief, that it was more
likely than not that he would be tortured if removed to El Salvador. The IJ therefore
denied the relief Mr. Lopez requested but granted him voluntary departure. The BIA
agreed with the IJ’s analysis and dismissed Mr. Lopez’s appeal.
Mr. Lopez then filed a motion for reconsideration with the BIA. In the
motion, he asserted that he would be “persecuted on account of his membership in a
particular social group, an orphan.” Id. at 28. He asked the Board to determine that
his circumstances of being an orphan and suffering from post-traumatic stress
disorder (PTSD), dysthymia, and anxiety, were extraordinary circumstances that
should excuse his failure to file his asylum application within the one-year deadline.
Although Mr. Lopez acknowledged he had previously failed to raise his status as an
orphan, he contended the BIA should have considered the issue because it was
implicit in his testimony before the IJ.
He attached an affidavit averring that he “was an orphan all living in the
streets and at times slept at the bus stations” and “was abandoned by [his] family
when [he] was 6 years old,” that “[w]hen [he] was 8 years-old [he] would clean buses
2
An applicant for asylum must show that he is a refugee; that is, that he is
“unable or unwilling to return to, and is unable and unwilling to avail himself or
herself of the protection of, [the] country [in which he last habitually resided]
because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A).
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for food and tips,” and that “[f]rom 8 years-old [he] was beaten and taken advantage
of because [he] was an orphan.” Id. at 33. Additionally, he attached a report from a
licensed clinical social worker (LCSW) who had diagnosed him with post-traumatic
stress disorder (PTSD), dysthymia, and anxiety.
Because he had submitted additional documentation with his motion for
reconsideration, the BIA treated it as both a motion for reconsideration and a motion
to reopen. But the BIA determined the LCSW’s report was not previously
unavailable and therefore did not provide a basis for reopening the proceedings. It
rejected Mr. Lopez’s claim to be an orphan as unsupported by and inconsistent with
the record, noting that “[a]ffidavits submitted in support of [Mr. Lopez’s]
applications for relief were prepared by [Mr. Lopez], his mother, his step-father, and
a sibling, all acknowledging [his] family ties.” Id. at 3. Thus, he did not establish
prima facie eligibility for relief that would warrant the reopening of proceedings.
Finally, the BIA denied the motion for reconsideration because it failed to persuade
the Board that “our prior decision in this case overlooked or erroneously decided any
argument previously advanced” by Mr. Lopez. Id. at 4.
II. DISCUSSION
We lack jurisdiction to review the BIA’s underlying removal order because
Mr. Lopez failed to file a timely petition for review from that order within the 30
days required by 8 U.S.C. § 1252(b)(1). See Infanzon v. Ashcroft, 386 F.3d 1359,
1361 (10th Cir. 2004). The timely filing of a petition for review is “mandatory and
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jurisdictional.” Stone v. INS, 514 U.S. 386, 405 (1995) (internal quotation marks
omitted). A motion to reopen or for reconsideration does not toll the time for filing a
petition for review challenging the underlying merits decision. See id. at 405-06.
Accordingly, we dismiss the petition for review to the extent it challenges any aspect
of the BIA’s order of November 6, 2013, denying relief.3
We do, however, have jurisdiction under 8 U.S.C. § 1252(a) to review the
BIA’s denial of Mr. Lopez’s motion to reopen as a “final, separately appealable
order.” Infanzon, 386 F.3d at 1361. Similarly, we may review the denial of his
motion for reconsideration. See Stone, 514 U.S. at 395 (“Upon denial of
reconsideration, the petitioner [may] file a separate petition to review that second
final order.”). We review the denial of motions to reopen or to reconsider for an
abuse of discretion. See Infanzon, 386 F.3d at 1362 (motion to reopen); Belay–Gebru
v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003) (motion to reconsider).
Mr. Lopez argues he has shown his entitlement to asylum because he has a
credible fear of future persecution, based on past persecution and his membership in
the social group of “Individuals in El Salvador Who Are Orphans/Public Servants
(Bus transportation) [Who Are Pressured] to Leave to Join Gangs.” Pet. Opening Br.
at 5. But the BIA upheld the IJ’s denial of Mr. Lopez’s asylum claim for a different,
3
Mr. Lopez appears to challenge the BIA’s underlying order of removal by
including arguments in his opening brief that “both the IJ and BIA completely
ignored the requests for TPS,” Pet. Opening Br. at 1; that he provided sufficient proof
of his continuous physical presence for TPS purposes, id. at 5, 13-14; and that the IJ
did not give him sufficient time to present his asylum case, id. at 11.
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threshold reason: his application was untimely and he did not show extraordinary
circumstances to excuse his untimely filing. See 8 U.S.C. § 1158(a)(2)(B), (D)
(establishing one-year deadline for filing of asylum application, but providing
discretionary exception where alien demonstrates “extraordinary circumstances”).
He fails to challenge that ruling in this petition for review.
Although he argued in his motion to reopen/reconsider that being an orphan
and suffering from PTSD, dysthymia, and anxiety were extraordinary circumstances
that should excuse his failure to file his asylum application within the one-year
deadline, he does not renew that argument in his appellate briefing. The
unchallenged finding that he failed to file a timely application bars his asylum claim.
See 8 U.S.C. § 1158(a)(2)(B).
Assuming Mr. Lopez’s argument that he belongs to a particular social group is
also intended to encompass the denial of his request for withholding of removal—a
claim not barred by the one-year deadline—he fails to challenge the BIA’s
conclusion that the record does not support his claim to be an orphan.4 As his status
as an orphan was the sole social group argument he asserted in his motion to reopen
and reconsider, he has presented no basis for concluding the BIA abused its
discretion in denying the motion.
4
Mr. Lopez makes no challenge to the BIA’s resolution of his CAT claim.
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III. CONCLUSION
The petition for review is dismissed in part—to the extent it raises issues
concerning the BIA’s underlying removal order over which we lack jurisdiction—and
is otherwise denied.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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