Willian Castro v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0678n.06
No. 12-4246
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
WILLIAN VOVANY CASTRO, ) Jul 23, 2013
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW FROM
) THE BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
Before: ROGERS and COOK, Circuit Judges; VAN TATENHOVE, District Judge*
COOK, Circuit Judge. Willian Vovany Castro, a citizen of El Salvador, seeks review of a
Board of Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of
his claims for asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”). For the following reasons, we DENY his petition.
I.
Castro illegally entered the United States in 2001. Although 8 U.S.C. § 1158(a)(2)(B)
requires an applicant to file for asylum within one year of arrival in the United States, Castro waited
*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
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Castro v. Holder
over seven years, filing in 2008 after conceding his removability at an earlier hearing before the IJ.
At his removal hearing in 2010, Castro testified as the sole witness, and the IJ found him credible.
“Mara Salvatrucha” (“MS-13”) is an international criminal gang actively operating in El
Salvador. Castro testified that, according to information provided by his mother, MS-13 killed his
father in 1984 for failing to pay it protection money when Castro was around six months old.
Though his father’s death certificate did not attribute his death to homicide, it identified the cause
as a deep thorax wound inflicted by a sharp-edged weapon. Castro also testified that, according to
his mother, MS-13 killed his stepfather three to four years after his father because the gang feared
Castro’s stepfather might report incriminating information about gang members to the authorities.
Castro chronicled MS-13’s attempts to recruit him as a teen. The first time, in 1996 or 1997,
gang members asked Castro to join but he refused, prompting them to push and hit him before letting
him go. During the gang’s second try in 1997, members approached him after school. When Castro
refused, they roughed him up once again. Finally, three years later, gang members escalated their
recruitment; they stormed into Castro’s home, hit him, held a knife to his neck, and threatened to kill
him if he continued to resist membership. They left only after Castro’s mother offered them cash
and the family television set, warning they would kill Castro upon his next refusal to join. Fearing
for his life, Castro fled El Salvador.
Even after Castro left El Salvador, he testified that MS-13 hurt other family members. In
early 2010, nine years after he arrived in the United States, his uncle and cousin died from blunt
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trauma to their heads. Though their death certificates did not specify their injuries’ sources, Castro
claimed that another cousin told him gang members were responsible. The gang’s motivation for
these acts, however, remains unclear.
The IJ denied Castro’s asylum application because Castro filed the application late. It then
denied his application for withholding of removal, finding that Castro did not suffer past persecution
or hold a well-founded fear of future persecution on account of a statutorily protected ground
because MS-13 targeted him for gang-recruitment purposes. The IJ also denied him protection under
the CAT. After supplementing the IJ’s conclusions with its own reasoning, the BIA affirmed the
denial of Castro’s applications.
II.
A. Asylum
Asylum applicants must demonstrate by “‘clear and convincing evidence’” that they filed an
asylum application within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B);
Vincent v. Holder, 632 F.3d 351, 352 (6th Cir. 2011). An applicant who demonstrates exigencies,
or changed circumstances that materially affect the applicant’s asylum eligibility, may merit an
exception to this one-year filing period. 8 U.S.C. § 1158(a)(2)(D); see 8 C.F.R. § 208.4(a)(4)–(5)
(explaining changed and extraordinary circumstances). Our review of this one-year timeliness bar
is confined to issues involving “constitutional claims or matters of statutory construction.” Vincent,
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632 F.3d at 353 (citation omitted); see also 8 U.S.C. § 1158(a)(3); Fang Huang v. Mukasey, 523
F.3d 640, 650–51 (6th Cir. 2008). “[T]he timeliness of an [applicant’s] asylum application is usually
a question of fact.” Shkulaku-Purballori v. Mukasey, 514 F.3d 499, 502 (6th Cir. 2007).
The IJ denied Castro’s asylum application as untimely, relying on Castro’s inability to cite
legal authority establishing that his reasons for missing the one-year asylum deadline—“bad advice
from friends or acquaintances” and “lack of knowledge of the law”—qualified as grounds for an
exception to the one-year filing period. The BIA agreed. On appeal, Castro argues that the IJ erred
in relying on the absence of legal authority to discount Castro’s grounds for claiming an exception
given that his unique circumstances deserved full consideration. Because this argument raises no
constitutional or statutory construction claim, we lack jurisdiction to consider it. See Sica Ixcoy v.
Holder, 439 F. App’x 524, 528 (6th Cir. 2011) (declining review of untimely asylum application on
jurisdictional grounds after IJ and BIA “made a factual determination” that petitioner lacked
knowledge of U.S. immigration law); Lybesha v. Holder, 569 F.3d 877, 881 (8th Cir. 2009) (holding
that ignorance of asylum laws or application deadlines is factual in nature and therefore
unreviewable).
B. Withholding of Removal
Although we lack jurisdiction to review the factual argument Castro presses regarding his
asylum application, we may review the BIA’s denial of his application for withholding of removal.
Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006). “Where, as here, the BIA affirms an
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IJ’s ruling and adds its own comments, we review both the IJ’s decision and the BIA’s additional
remarks.” Lateef v. Holder, 683 F.3d 275, 279 (6th Cir. 2012) (alteration and internal quotation
marks omitted). We apply a substantial-evidence standard to the BIA’s factual findings, including
its credibility assessment, reversing only if the evidence “not only supports a contrary conclusion,
but indeed compels it.” Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992).
To qualify for withholding of removal, applicants must demonstrate that it is more likely than
not that, if returned to their home country, they would face persecution on account of a statutorily
protected ground, including “membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3); see 8 C.F.R. § 1208.16(b)(1)–(2). This presents a more stringent standard than that
applied to asylum claimants. Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir. 2004).
1. Family as Particular Social Group
Because Castro failed to present his “family as a social group” argument to the IJ at the
hearing, the government argued that it was waived. Castro’s claim, however, fails for a more
fundamental reason: even had it been presented, substantial evidence supports the BIA’s alternative
holding that MS-13 targeted Castro to recruit him to the gang, not because of the family to which
he belongs.
The authority Castro cites recognizes that applicants claiming membership in family groups
must face persecution by virtue of their family ties. In Lopez-Soto v. Ashcroft, the Fourth Circuit
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explained that even when a petitioner asserts his family as a “particular social group,” courts must
still evaluate causation; that is, they must “determine whether Petitioner’s persecution was ‘on
account of’ such family membership.” 383 F.3d 228, 236 (4th Cir. 2004), rehearing en banc granted
but dismissed after settlement. The Fourth Circuit sustained the BIA’s decision that, despite the
gang’s murder of the petitioner’s brother for resisting membership, the petitioner faced recruitment
and threats “because he was a 16-year-old male living in the area, and not because he was a member
of a particular family.” Id. at 236; see also Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997) (requiring
demonstration that petitioner’s “family was a particular target for persecution”); Gebremichael v.
INS, 10 F.3d 28, 36 (1st Cir. 1993) (granting asylum relief because government specifically targeted
petitioner “to extract information about the location of another family member”).
Castro argues that his three interactions with MS-13, in addition to the murders of his father,
stepfather, uncle, and cousin, make it more likely than not that MS-13 will persecute him because
of his family ties if he returns to El Salvador. But the BIA viewed the situation differently, reasoning
that the gang targeted Castro for recruitment purposes and that no “other motivation existed.”
Substantial evidence supports the BIA’s conclusion. For example, in a declaration Castro submitted
to the IJ, he wrote that the gang came after him “[e]ver since [he] reached the desirable age for the
gang.” (AR 394, Castro Letter.) He cannot point to evidence demonstrating they came after him
because of his status as a Castro. Horrific though the circumstances are, we leave the BIA
determination undisturbed in the absence of evidence compelling a contrary conclusion. Klawitter,
970 F.2d at 152.
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2. Salvadoran Male Social Group
At his hearing, Castro claimed that he suffered past persecution on account of his
membership in a social group, specifically: “young Salvadorian males who are targeted by the gangs
for recruitment, and are retaliated against [for] refusing to join their gang.” (AR 164.) The IJ
disagreed, citing Matter of S-E-G-, an earlier BIA holding that neither “Salvadoran youth who
refused recruitment into the MS-13 criminal gang [n]or their family members constitute a particular
social group.” 24 I. & N. Dec. 579, 590 (BIA 2008). Thus, the IJ concluded, MS-13’s treatment of
Castro “does not . . . equate [to] persecution on account of a protected characteristic.” Similarly, the
IJ held that Castro’s vocal resistance to the gangs—a purported political opinion—did not entitle him
to relief because “telling [gang members] verbally that he would not join doesn’t bear any of the
characteristics of a political opinion.” The BIA agreed, applying the reasoning behind Matter of S-E-
G- to Castro’s situation.
Castro attempts to distinguish Matter of S-E-G-, where the BIA held that Salvadoran youth
that resist gang membership form too broad a group to be protected, by arguing that his family’s
repeated interactions with MS-13 whittle that broad group to a recognizable social group. Though
roping off a smaller group (Castro’s family) from a larger population (Salvadoran youths resisting
recruitment) does limit the size of the group in which Castro claims membership, he still cannot
differentiate the reason MS-13 targets all El Salvadoran recruits and their families from the reason
they targeted him: his resistance to gang recruitment. Cf. Almuhtaseb, 453 F.3d at 750 (requiring
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a withholding applicant to demonstrate his or her “predicament is appreciably different from the
dangers faced by [their] fellow citizens”) (quotation mark omitted). Although MS-13 harmed several
of Castro’s family members, substantial evidence supports the BIA’s finding that Castro faced
retaliation for recruitment, not familial ties.
Castro’s second attempt at distinguishing the S-E-G- decision—that he suffered more severe
treatment from MS-13 than the S-E-G- applicants—fails, too. The IJ addressed this concern and
found no evidence that Castro ever required any medical treatment for his injuries, just like the
applicants in S-E-G-. The BIA agreed with this determination, and substantial evidence supports its
decision.
Because Castro’s past-persecution arguments double as his future persecution arguments, he
also cannot establish a likelihood of future persecution. Unable to attribute his treatment in El
Salvador to his status as a Castro family member, “the fact that [Castro] may become a victim of
crime if he is returned to El Salvador” is not enough.
C. CAT Relief
Castro argues that he merits CAT relief because MS-13 subjected him to “severe pain and
suffering, both mental and physical,” and “being a member of his family makes it more than likely
that this treatment . . . will continue upon his return to El Salvador.” But as the IJ and the BIA noted,
eligibility for CAT relief requires that the applicant face torture “inflicted by or at the instigation of
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or with the consent or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1). In light of the Salvadoran government’s “concerted efforts to attempt to
deal with the gang problem in El Salvador,” the IJ found “no evidence” that the Salvadoran
government would turn a blind eye to torture by MS-13. The BIA agreed, and substantial evidence
supports this assessment. Castro therefore cannot meet the CAT’s high threshold for relief.
III.
We DENY the petition.
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