Cedillos-Alvarado v. Holder

09-5166-ag
Cedillos-Alvarado v. Holder
BIA
Straus, IJ
A071 596 796
A099 558 475
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21st day of October, two thousand ten.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 RAUL ENRIQUE CEDILLOS-ALVARADO, also
14 known as RAUL ENRIQUE IEDILLOS, also
15 known as RAUL CEDILLOS, also known as
16 RAUL EMRIGUE CEDILLOS, also known as
17 RAUL ENRIQUE CEDILLOS-ALVARADO, also
18 known as E RAUL CEDILLOS, also known
19 as CEDILLOS RAUL E., also known as
20 CEDILLOS E. RAUL; JUANA YANETH
21 CEDILLOS, AKA JUANA YANETH CORTEZ,
22 Petitioners,
23
24 v. 09-5166-ag
25 NAC
26 ERIC H. HOLDER, JR.,
27 UNITED STATES ATTORNEY GENERAL,
28 Respondent.
29 ______________________________________
1 FOR PETITIONERS: Elyssa N. Williams, Formica, P.C.,
2 New Haven, Connecticut.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General; Francis W. Fraser, Senior
6 Litigation Counsel; W. Daniel Shieh,
7 Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 Raul Enrique Cedillos-Alvarado and Juana Yaneth
17 Cedillos, natives and citizens of El Salvador, seek review
18 of a November 18, 2009, decision of the BIA denying their
19 motion to remand and affirming the November 6, 2008,
20 decision of Immigration Judge (“IJ”) Michael W. Straus,
21 which denied petitioners’ application for asylum,
22 withholding of removal, and relief under the Convention
23 Against Torture (“CAT”). In re Raul Enrique Cedillos-
24 Alvarado, Juana Yaneth Cedillos, Nos. A071 596 796, A099 558
25 475 (BIA Nov. 18, 2009), aff’g Nos. A071 596 796, A099 558
26 475 (Immig. Ct. Hartford Nov. 6, 2008). We assume the
27 parties’ familiarity with the underlying facts and
28 procedural history in this case.
2
1 Under the circumstances of this case, we review the
2 decision of the IJ as supplemented by the BIA. See Yan Chen
3 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency’s
4 factual findings are reviewed for “substantial evidence,”
5 and will be upheld unless any reasonable adjudicator would
6 be compelled to conclude to the contrary. Id.; 8 U.S.C. §
7 1252(b)(4)(B). An alien who demonstrates past persecution
8 benefits from a presumption that he faces a threat of future
9 persecution for the purposes of both asylum and withholding
10 of removal. See 8 C.F.R. §§ 1208.13(b)(1),
11 1208.16(b)(1)(i). The burden rests with the government to
12 rebut this presumption by showing, by a preponderance of the
13 evidence, inter alia, a “fundamental change in circumstances
14 such that the applicant no longer has a well-founded fear of
15 persecution in the applicant’s country of nationality” or
16 the reasonable possibility of internal relocation within the
17 country of removal. 8 C.F.R. §§ 1208.13(b)(1)(i)-(ii),
18 1208.16(b)(1)(i)-(ii).
19 The BIA did not err in affirming the IJ’s finding that
20 assuming, arguendo, that petitioners had suffered past
21 persecution, they no longer had a well-founded fear of
22 future persecution because conditions in El Salvador had
3
1 fundamentally changed. The agency reasonably found that the
2 government had met its burden of establishing a fundamental
3 change in circumstances. See Melgar de Torres v. Reno, 191
4 F.3d 307, 314 (2d Cir. 1999) (recognizing that conditions in
5 El Salvador have materially changed and that the increase in
6 general criminal violence does not lend support to an asylum
7 claim). A U.S. Department of State report in the record
8 indicated that the civil war in El Salvador ended in 1992,
9 that former guerilla forces have not been targeting
10 individuals who fought on the opposing side in that war, and
11 that “there have not been politically motivated crimes in El
12 Salvador in years.” Bureau of Democracy, Human Rights, and
13 Labor, U.S. Department of State, El Salvador – Profile of
14 Asylum Claims & Country Conditions – April 2003, at 5. Such
15 a U.S. Department of State report “[c]onsidered by itself .
16 . . [can] constitute[] substantial evidence of a fundamental
17 change in . . . country conditions sufficient to rebut any
18 presumption of a well-founded fear of future persecution.”
19 Lecaj v. Holder, 616 F.3d 111, 116 (2d Cir. 2010).
20 Because the agency’s finding that conditions in El
21 Salvador had changed is dispositive of their claim of a
22 well-founded fear of persecution, 8 C.F.R. § 1208.13(b)(1),
4
1 and all of petitioners’ claims were based on the same
2 factual predicate, the agency reasonably denied their
3 applications for asylum, withholding of removal, and CAT
4 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
5 2006).
6 Nor did the BIA abuse its discretion in denying
7 petitioners’ motion to remand to apply for cancellation of
8 removal. A decision on a motion to remand is reviewed for
9 abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice,
10 421 F.3d 149, 156 (2d Cir. 2005). “A motion to remand that
11 does not simply articulate the remedy sought on appeal will
12 be held to the substantive standards applicable either to a
13 motion to reconsider or to reopen.” Id. Cancellation of
14 removal requires, inter alia, a showing that the alien’s
15 “removal would result in exceptional and extremely unusual
16 hardship to the alien’s spouse, parent, or child, who is a
17 citizen of the United States.” 8 U.S.C. § 1229b(b)(1)(D).
18 However, petitioners failed to provide any detailed evidence
19 regarding their U.S. citizen son’s medical condition or
20 treatment. The BIA therefore did not err in concluding that
21 they failed to demonstrate a likelihood that their
22 application for cancellation of removal would succeed on the
5
1 merits. See INS v. Abudu, 485 U.S. 94, 104 (1988)
2 (recognizing that failure to offer evidence establishing a
3 prima facie case for the underlying substantive relief
4 sought is a proper ground for denying a motion to reopen);
5 see also In re M-S-, 22 I.&.N. Dec. 349, 357 (BIA 1998)
6 (“[W]here an alien is seeking previously unavailable relief
7 and has not had an opportunity to present her application
8 before the [IJ], the Board will look to whether the alien
9 has proffered sufficient evidence to indicate that there is
10 a reasonable likelihood of success on the merits.”).
11 For the foregoing reasons, the petition for review is
12 DENIED. Petitioner’s motion for a stay of removal is
13 DISMISSED as moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
18
6