Jesus Cruz Martinez v. Jefferson B. Sessions III , 885 F.3d 460 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3754
JESUS ANTONIO CRUZ-MARTINEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United
States,
Respondent.
____________________
On Petition for Review of an Order of the Board of Immigration Appeals.
No. A078-867-386
____________________
ARGUED FEBRUARY 8, 2018 — DECIDED MARCH 14, 2018
____________________
Before FLAUM, EASTERBROOK, and MANION, Circuit Judges.
MANION, Circuit Judge. Jesus Antonio Cruz-Martinez pe-
titions this Court to review the decision of the Board of Immi-
gration Appeals (Board) affirming the decision of the Immi-
gration Judge (IJ). Cruz-Martinez argues on appeal that the
Board erred by failing to consider his asylum claim and the
reinstatement of his prior order of removal, denying him
withholding of removal and protection under the Convention
2 No. 14-3754
Against Torture (CAT), and violating his right to due process
by refusing to remand his case to the IJ for consideration of
new evidence. We conclude his challenges are meritless and
deny the petition for review.
I. Background
A citizen of Mexico who was born in 1977, Cruz-Martinez
first came to the United States from Mexico illegally in 1993.
He was removed to his home country in 2002 under a signed,
stipulated removal order dated October 22, 2002. This re-
moval order is captioned “In the Matter of: Rocha-Martinez,
Jose,” which is an alias that Cruz-Martinez has used.
Cruz-Martinez states that in 2005 two armed men who had
previously fought with his brothers threatened him at his
mother’s home in Mexico while they were looking for one of
his brothers. His mother contacted the local police about the
threat to Cruz-Martinez, but the police did nothing. Accord-
ing to Cruz-Martinez, the local police did nothing because the
armed men had paid them off. Two months following this in-
cident, Cruz-Martinez returned to the United States without
permission.
While in the United States a second time, Cruz-Martinez
acquired various criminal convictions including convictions
for aggravated assault, possession of cocaine, and obstructing
police. Cruz-Martinez also married a United States citizen
with whom he has a child. He is also a step-father to her three
other children. Additionally, since Cruz-Martinez returned to
the United States in 2005, all of his siblings and his mother
have come to reside in the United States. Some of his family
members, including his mother, have gone back and forth to
No. 14-3754 3
Mexico without incident, and none of his family members
have sought protection from persecution.
In 2014, the Department of Homeland Security reinstated
the 2002 removal order. Expressing fear of being returned to
Mexico, Cruz-Martinez was interviewed by the Asylum Of-
fice in Chicago, which made a positive reasonable-fear deter-
mination. Cruz-Martinez then applied for protection from
persecution with the Immigration Court. Before the IJ, Cruz-
Martinez testified that he is afraid that if he returns to Mexico,
he will be kidnapped, subjected to extortion, tortured, and
killed. He cites a fear of the two armed men who attacked him,
as well as gangs and organized crime in Mexico. Cruz-Mar-
tinez’s wife also testified, including about having been robbed
at gunpoint in Mexico when she visited during her prior mar-
riage.
The IJ denied Cruz-Martinez’s application. The IJ held that
while Cruz-Martinez testified credibly, he did not establish a
clear probability of either persecution or torture. The IJ found
that the incident involving the two armed men in 2005 was
isolated and insufficiently severe to constitute past persecu-
tion, and there was no pattern of ongoing or escalating harm.
The IJ also noted that after the incident in 2005, he remained
in Mexico for two months. During that time no one sought to
harm Cruz-Martinez, no one in his family was harmed, and
his brother did not file a claim for protection. Regarding Cruz-
Martinez’s fears based on the deteriorating conditions in Mex-
ico, the IJ cited the fact that members of Cruz-Martinez’s fam-
ily traveled back and forth to Mexico without incident. Fi-
nally, the IJ found that Cruz-Martinez did not present any ev-
idence that “he would be detained or subjected to torture” by
either the government or someone else with the government’s
4 No. 14-3754
acquiescence. The IJ made particular note that deportees do
not constitute a particular social group and that while those
with family in the United States may have an increased likeli-
hood of being kidnapped for extortion that “does not convert
them into people who are being persecuted on account of
their membership in a particular group or for any reason
other than generalized criminal misconduct.”
The Board affirmed the IJ’s decision. Specifically, the Board
found the IJ did not err in determining that Cruz-Martinez
failed to meet his burden of proof for relief. The Board re-
jected Cruz-Martinez’s claim that the isolated threat and gen-
eralized crime supported a claim for persecution. Regarding
his prior removal order, the Board noted that Cruz-Martinez
conceded to using the name listed on the 2002 stipulated re-
moval order during his asylum interview. Finally, the Board
denied Cruz-Martinez’s request for the IJ to consider new ev-
idence that he submitted to the Board, namely the U.S. State
Department’s travel warning for Mexico and recent news ar-
ticles about conditions in Mexico. The Board concluded that
Cruz-Martinez did not establish that this new evidence would
alter the outcome of his case.
Following the Board’s affirmance of the IJ’s decision, Cruz-
Martinez filed this petition for review.
II. Analysis
Challenging the stipulated order of removal, Cruz-
Martinez argues that he should be in removal and not with-
holding-only proceedings. He contests the content of the stip-
ulated order of removal, including the name on the caption,
“In the Matter of Rocha-Martinez, Jose.” Cruz-Martinez’s
No. 14-3754 5
challenge is unavailing. In his asylum interview, Cruz-Mar-
tinez conceded that he used the name listed on the stipulated
removal order. Moreover, Cruz-Martinez failed to challenge
the stipulated removal order within thirty days of its entry,
which was October 23, 2002. 8 U.S.C. § 1252(b)(1) (“The peti-
tion for review must be filed not later than 30 days after the
date of the final order of removal.”); Torres-Tristan v. Holder,
656 F.3d 653, 656 (7th Cir. 2011) (“We do not look behind the
reinstatement to entertain challenges to the earlier, underly-
ing removal order.”) (citation omitted). Finally, Cruz-Mar-
tinez argues that his due process rights were violated based
on the reinstatement of the prior removal order because the
reinstatement was unsigned and his case should be remanded
for consideration of this issue. As we have previously noted,
our “jurisdiction in such an instance extends only to the ques-
tion whether the reinstatement order was properly entered;
we cannot look behind that order to the underlying removal
order.” Gomez v. Chavez, 308 F.3d 796, 801 (7th Cir. 2002). Be-
cause there is a signed reinstatement in the Department of
Homeland Security Administrative record, remand for the
consideration of this issue would be futile. See Lopez v. Lynch,
810 F.3d 484, 492 (7th Cir. 2016). Cruz-Martinez does not deny
that he was unlawfully in the United States at both times, nor
does he make any meaningful argument to challenge the re-
instatement of his 2002 stipulated removal order. Therefore,
Cruz-Martinez’s challenge of the stipulated removal order
fails.
Cruz-Martinez next contends that the IJ and Board
erred as a matter of law by failing to consider his application
for asylum. As we held in Garcia v. Sessions, aliens subject to a
reinstated order of removal cannot apply for asylum. 873 F.3d
553, 556-57 (7th Cir. 2017).
6 No. 14-3754
As an alien subject to a reinstated order of removal, Cruz-
Martinez cannot apply for asylum. Therefore, the IJ and Board
did not err in rejecting his claim for asylum.
Cruz-Martinez also challenges the Board’s affirmance
of the IJ’s denial of his claim for withholding of removal based
on future persecution. Specifically, Cruz-Martinez asserts that
“threats can form the basis for persecution.” Our review of the
Board’s decision is deferential, and we will deny a petition for
review if the “Board’s decision is supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.” Li Ying Zheng v. Holder, 722 F.3d 986, 989 (7th Cir.
2013) (internal quotations and citations omitted). To be enti-
tled to withholding of removal based on fear of future perse-
cution, a petitioner must establish that he would be subject to
persecution based on a statutorily protected ground, such as
race, religion, nationality, political opinion, or membership in
a “particular social group.” 8 U.S.C. § 1231(b)(3)(A). Addi-
tionally, the harm feared to be suffered must be attributable
to the “government or to a nongovernmental entity that the
government is unable or unwilling to control.” Almutairi v.
Holder, 722 F.3d 996, 1002 (7th Cir. 2013). Persecution includes
“punishment or the infliction of harm for political, religious,
or other reasons that this country does not recognize as legit-
imate.” Pathmakanthan v. Holder, 612 F.3d 618, 622 (7th Cir.
2010) (citations omitted). Threats can rise to the level of per-
secution, but only if they are “of a most immediate and men-
acing nature.” Hernandez-Baena v. Gonzales, 417 F.3d 720, 723
(7th Cir. 2005) (citation omitted). In a “vast majority of cases
… mere threats will not, in and of themselves, compel a find-
ing of past persecution.” Pathmakanthan, 612 F.3d at 623 (quot-
ing Boykov v. INS, 109 F.3d 413, 416 (7th Cir.1997)).
No. 14-3754 7
Here, Cruz-Martinez testified about one isolated threat
from armed men, but did not establish the threat was based
on a statutorily protected ground. The seriousness of the
threat and likelihood of future persecution are dubious as
well. Cruz-Martinez remained in Mexico for two months after
the incident without harm or additional threats, and no harm
has come to any of his family members, some of whom have
traveled back and forth to Mexico without incident. Moreo-
ver, the threat was made over twelve years ago, and there is
nothing in the record to indicate that the threat has been re-
newed or any reason to believe that it would be. Finally, the
threat was not carried out by the government or an entity that
the government sanctioned or could not control. Thus, there
is reasonable, substantial, and probative evidence to support
the determination that Cruz-Martinez did not suffer past per-
secution.
Regarding his CAT claim, Cruz-Martinez only gener-
ally argues that the Board erred and does not cite specific ev-
idence or arguments in support of his claim that he would be
subject to torture, much less that the government would com-
mit such acts or that such acts would be committed by the
government. Therefore, these arguments are waived. See
United Central Bank v. Davenport Estate, LLC, 815 F.3d 315, 318
(7th Cir. 2016). Even in the absence of waiver, Cruz-Martinez
failed to present evidence that he would be subject to torture
by the government if he was returned to Mexico. Therefore,
his CAT claim fails.
Finally, Cruz-Martinez contends that the Board vio-
lated his due process rights by refusing to remand his case to
the IJ for consideration of new evidence, namely news articles
8 No. 14-3754
and a U.S. State Department report about increased kidnap-
pings in Mexico. The Board declined to consider the evidence
and found there was no basis to remand because “applicant
has not established that this new evidence could possibly alter
the decision in this case.” This court reviews a Board’s denial
of a motion to remand for abuse of discretion. See Yi Xian Chen
v. Holder, 705 F.3d 624, 631 (7th Cir. 2013). Cruz-Martinez pre-
sented no evidence that the articles and reports of generalized
crime in Mexico showed that he would be more likely tar-
geted for harm, be it persecution or torture. Therefore, the
Board did not abuse its discretion in denying Cruz-Martinez’s
request for a remand for the consideration of new evidence.
III. Conclusion
Because Cruz-Martinez is an alien subject to a prior re-
moval order, he is not eligible to apply for asylum. Further, he
did not meet his burden in establishing that he would be sub-
ject to future persecution or torture; thus, he is not entitled to
withholding of removal or relief under CAT. Therefore, the
petition for review is denied.