Sebastian Duarte-Salagoza v. Eric Holder, Jr. , 775 F.3d 841 ( 2014 )

In the
United States Court of AppealsSoun
For the Seventh Circuit
No. 14-2276
SEBASTIAN DUARTE-SALAGOSA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
A200-558-692
ARGUED NOVEMBER 12, 2014 — DECIDED DECEMBER 30, 2014
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. Sebastian Duarte-Salagosa seeks
review of a decision of the Board of Immigration Appeals
(Board) that affirmed a ruling by an immigration judge (IJ)
denying his claim for asylum and withholding of removal.
Because we lack jurisdiction to review the Board’s ruling that
the asylum claim was untimely, we dismiss that claim. For the
reasons set forth in this opinion, we also deny the petition for
2 No. 14-2276
withholding of removal and protection under the Convention
Against Torture.
I. Background
The factual record in this case is spare and largely confined
to the procedural history, none of which is favorable to our
petitioner, Sebastian Duarte-Salagosa (Duarte). A native and
citizen of Mexico, Duarte entered the United States without
inspection at some time around June 1, 2000. Almost eleven
years later, following a trial in which he was acquitted of
charges of heroin trafficking, the Department of Homeland
Security issued a Notice to Appear on February 22, 2011.
Duarte did not appear for his hearing, and a removal order
was issued in absentia on March 24, 2011.
After Duarte sent a letter to the IJ in which he claimed to
have been unaware of the notice, the IJ reopened the
proceedings, whereupon Duarte applied for asylum,
withholding of removal, and protection under the Convention
Against Torture (CAT). In his application for asylum, Duarte
claimed that he feared returning to Mexico because he had
cooperated with the United States Drug Enforcement Agency
(DEA) and feared retribution from the Zeta drug cartel.
At the hearing, the IJ questioned Duarte, who denied that
he cooperated with the DEA or that he was threatened by the
Zeta cartel as a result of any purported association with law
enforcement. Instead, he claimed that the conflict stemmed
from a run-in that he had with the cartel almost fifteen years
earlier. Prior to entering the United States, Duarte—who was
in the business of selling used cars—was kidnapped by cartel
members and held for ransom. He ultimately escaped, earning
No. 14-2276 3
not only his freedom but also the consternation of the cartel,
which duly responded by issuing death threats against him. At
the hearing, Duarte insisted that the threats were ongoing. He
submitted an affidavit from a friend in Mexico who received
phone calls from persons suspected to be cartel members
warning that Duarte would face retribution if he returned to
that country. The IJ denied Duarte’s application for asylum and
withholding of removal but granted him voluntary departure.
On appeal, the Board held that Duarte’s asylum petition
failed as it neither met the statutory filing deadline nor
established that he qualified for an exception due to “changed
circumstances.” For his petition for withholding of removal,
Duarte asserted for the first time on appeal that he was
targeted for persecution because of his “membership in the
particular group of successful business[men] who have come
under extortionate attacks by the ever-increasing influence of
the Zeta drug cartels fighting for the heart and soul of Mexico’s
business and economic structure.” Pet’r. Br. Ex. 2 at 2. The
Board held that Duarte had failed to preserve this issue
because he did not make this argument in his initial application
or with the IJ. Nonetheless, the Board considered Duarte’s
testimony about his kidnapping at the hands of cartel members
and determined that the cartel detained him for the purposes
of obtaining money rather than to persecute him for his race,
religion, or any other grounds recognized by law.
Finally, although Duarte raised a claim for CAT protection
in his application, he did not argue this claim before either the
IJ or the Board, nor did he submit any evidence to suggest the
possibility of torture at the hands (or with the acquiescence) of
government actors. As a result, neither the IJ nor the Board
4 No. 14-2276
ruled on this claim. Nonetheless, Duarte contends that the
evidence in the record is sufficient to preserve his claim for
CAT protection and asks us to review it now.
II. Analysis
A. Asylum Claim
An alien must file an application for asylum within one
year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B).
Although Duarte’s claim—filed eleven years after arriving in
this country—is clearly untimely, he could still proceed with
his petition if he were to demonstrate “either the existence of
changed circumstances which may materially affect his
eligibility for asylum or extraordinary circumstances relating
to the delay in filing the application within the one year time
period.” Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir. 2013).
However, for us to review his claim, Duarte must also establish
an additional factor, namely the existence of a constitutional
question or question of law related to the timely filing of an
asylum application. Id. (citing 8 U.S.C. § 1252(a)(2)(D)). Absent
a question of this nature, the court may not review the Board’s
denial of asylum. Id.; Khan v. Filip, 554 F.3d 681, 687–88 (7th
Cir. 2009).
Duarte presents neither a timely claim nor a question of
law—constitutional or otherwise—related to the timeliness of
the filing. He merely asks us to review the Board’s factual
determination that no changed or extraordinary circumstances
existed to excuse his late filing. We lack jurisdiction to do this.
Tian v. Holder, 745 F.3d 822, 825–26 (7th Cir. 2014); 8 U.S.C.
§ 1158(a)(3).
No. 14-2276 5
B. Withholding of Removal
In addition to denying his asylum claim, the IJ denied
Duarte’s petition for withholding of removal. The Board
provided its own analysis to support its decision to deny
withholding of removal. Accordingly, we review both
decisions. Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013).
The standard of review is a deferential one: we will not reverse
an agency decision simply because we would have decided the
case differently; we reverse only if any reasonable adjudicator
would be compelled to conclude the contrary. Bueso-Avila v.
Holder, 663 F.3d 934, 937 (7th Cir. 2013). An alien is entitled to
withholding of removal under the INA if he can show through
direct or circumstantial evidence a “clear probability” that his
“life or freedom would be threatened … because of the alien’s
race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3)(A); Khan, 554
F.3d at 690; Bueso-Avila, 663 F.3d at 937.
The record in this case is devoid of any evidence suggesting
that Duarte has been or will be subject to persecution on
account of his race, religion, nationality, membership in a
political group or political opinion. When questioned by the IJ,
Duarte disclaimed the rationale put forth in his application,
namely that he faced likely retribution from the Zeta cartel on
account of his cooperation with law enforcement. Instead, he
claimed that he faced persecution because the cartel, after
fifteen years, still harbored resentment because he escaped
their captivity without paying ransom. The IJ found this reason
insufficient, informing Duarte that: “[t]he fact that [cartel
members] are angry at you, and want revenge against you,
6 No. 14-2276
does not qualify you for asylum or withholding of removal.”
Pet’r. Br. Ex. 3 at 36.
Duarte refined his argument on appeal to the Board,
introducing for the first time a claim that he was targeted for
persecution on account of his “membership in the particular
social group of successful businesses who have come under
extortionate attacks by the ever-increasing influence of the
dangerous Zeta drug cartels fighting for the heart and soul of
Mexico’s business and economic structure.” Pet’r. Br. Ex. 2 at
2. The Board found that Duarte had not raised this claim to the
IJ and therefore failed to preserve it. Undaunted, Duarte
unveiled yet another version of this claim in his petition to this
court, claiming that the Board and IJ failed to consider his
membership in a group consisting of “Mexican businessmen in
an area known for widespread kidnappings and extortion,
where the Mexican government is unwilling or unable to
effectively intervene and where corruption makes it all but
impossible to tell the good law enforcement from the bad.”
Pet’r. Br. 10.
Duarte failed to exhaust his administrative remedies by
presenting this particular social group for the first time in his
petition to this court. The record reflects that Duarte did not
represent to the IJ that he was a member of any social group
involving businessmen who had been kidnapped by cartel
members. In fact, he expressly disclaimed such arguments.
When asked by the IJ whether the kidnapping formed the basis
for the asylum claim, Duarte’s counsel expressly denied that it
did. Pet’r. Br. Ex. 3 at 28. Instead, he raised the argument for
the first time on appeal, and the Board properly declined to
review it as it had never been presented to the IJ.
No. 14-2276 7
Had the Board considered his social group—and had the
government failed to oppose sufficiently this
consideration—Duarte might have an argument that we
should also consider the matter. This was not the case; instead,
in his petition to this court, Duarte offers still another
formulation of his social group and one that has not been
reviewed in any proceeding. 8 U.S.C. § 1252(d)(1) allows courts
to review final orders of removal only where a party has
exhausted his administrative remedies. It does not direct us to
review issues that have not been raised at any point in the
earlier proceedings. We therefore decline to review either of
Duarte’s purported social groups.
Regardless of this, Duarte’s claim for withholding of
removal suffers from a more immediate defect, namely, that
his feared persecution emanates from a personal dispute rather
than one of the protected grounds covered by the Immigration
and Nationality Act. The possibility of private violence based
on personal grudges, and the inability of a country to protect
its citizens from this, is not a basis for asylum or withholding
of removal. Jonaitiene v. Holder, 660 F.3d 267, 270 (7th Cir. 2011).
Accordingly, we deny Duarte’s claim for withholding of
removal.
C. CAT Protection Claim
A failure to exhaust administrative remedies usually
forecloses a petitioner from raising an issue in federal court
that was not raised before the immigration tribunal. Young
Dong Kim v. Holder, 737 F.3d 1181, 1187 (7th Cir. 2013). To
exhaust an administrative remedy an applicant must “present
to the Board any arguments that lie within its power to
8 No. 14-2276
address.” FH-T v. Holder, 723 F.3d 833, 841 (7th Cir. 2013).
Here, the record establishes that Duarte failed to raise
expressly the issue of CAT protection to either the IJ or to the
Board. Duarte argues that he was not required to address the
issue directly because his testimony and the affidavit from his
friend provided sufficient evidence for the IJ and the Board to
infer that he would be subject to torture upon his return to
Mexico. Such evidence, he claims, was sufficient to preserve his
CAT claim.
We disagree. In the past we have recognized a limited class
of exceptions to the administrative exhaustion requirement to
include, among others, where a party has waived or forfeited
objections, where the Board has addressed an issue on its own,
or for other discretionary reasons. Arobelidze v. Holder, 653 F.3d
513, 517 (7th Cir. 2011). Duarte’s case presents none of these
exceptions, nor does he present any facts or arguments to
convince us that we should exercise our discretion to excuse
him from a requirement that is binding on all other applicants.
While Duarte may have requested that the IJ and the Board
consider the same evidence for other claims, he did not ask
them to consider the same arguments that he now asks us to
consider. To determine whether an issue has been raised at an
earlier proceeding, courts look to whether a party actually
argued it, not whether the argument bears some relation to the
evidentiary record. Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th
Cir. 2010). To do otherwise would effectively eliminate waiver
and preserve every issue for review. At no point in the earlier
proceedings did Duarte argue that he would be tortured upon
return to Mexico. Because no such arguments were made,
neither the IJ nor the Board issued a ruling on the matter. For
No. 14-2276 9
us to review this issue, we would have to speculate about
which arguments Duarte would have made in earlier
proceedings as well as the specific grounds for denying them.
In other words, there is nothing for us to review.
Duarte has failed to exhaust his administrative remedies.
We therefore DENY his petition for review to the extent that it
concerns withholding of removal and the CAT, and we
DISMISS the petition for want of jurisdiction to the extent that
it concerns the request for asylum.