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Delcid-Zelaya v. Holder

United States Court of Appeals, Tenth Circuit

August 6, 2013

SANTOS CRISTINO DELCID-ZELAYA, Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General, Respondent.

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.

ORDER AND JUDGMENT [*]

Wade Brorby Senior Circuit Judge

Petitioner Santos Cristino Delcid-Zelaya is a native and citizen of El Salvador. Appearing in this court pro se, he petitions for review of an order of the Board of Immigration Appeals (BIA) that dismissed his administrative appeal from an order of the immigration judge (IJ) that denied his application for asylum, restriction on removal, and protection under the United Nations Convention Against Torture (CAT). We deny the petition for review.

I. Background

Petitioner entered the United States without inspection in July 2008, when he was sixteen years old. Removal proceedings were also initiated in 2008. Petitioner conceded removability but applied for asylum, restriction on removal, and protection under the CAT. The only box Petitioner checked as a basis for his application for relief was nationality.

Petitioner was represented by counsel at the merits hearing in October 2011. He testified that he came to the United States because El Salvador was a "very dangerous place to be. There is a lot of criminality." Admin. R. at 143. He took buses and taxis to get here, but went through a desert on foot to cross the border with Mexico. He said that he risked the dangers of wildlife and getting lost because "this is the country of freedom and happiness, and where I come from there was a lot of suffering." Id. at 147. He said that he is afraid to go back to El Salvador.

Petitioner testified about two specific traumatic experiences. In 2006, when he was fourteen, he was visiting one of his older brothers who lived about an hour away. They were threatened on a bus by three masked gang members who wanted money. His brother was robbed and beaten. Petitioner was scared, but was not harmed. His brother reported the assault to the police, but Petitioner and his brother could not identify the assailants, so nothing was done. Petitioner also believed that the police would not protect them because the police were also afraid. The men also threatened to harm Petitioner's family's home, but his family was afraid to report that to the police.

Petitioner also testified that, on his way to work one day in 2007, when he was sixteen, he discovered the body of an acquaintance in the street. His friend had been killed with a machete. Petitioner did not see the murder, but he was very unsettled by the violence committed against his friend.

Petitioner also testified that street vendors near his home were attacked by gang members who wanted money. They started shooting at each other, he said. He was not involved in this battle, but he heard the shots. He said that he was also a vendor and got into fights with gang members who tried to take away his belongings and his money. He did not pay them, and they threw his merchandise on the floor. He said that his family owned a small store, and he believed that they were perceived as having money.

Petitioner stated that he had never been convicted of a crime, and he refused invitations to join a gang. He believed that he would be recognized by the gang members who had tried to recruit him as a person who has cash. He asserted that El Salvador is a small country and people would know if a person was returning from the United States or, if the person was unknown, it would be assumed that he was returning from the United States and had money. He said that conditions had not improved in El Salvador since he left, and he could not relocate to another part of El Salvador because he had no family anywhere else.

In her decision, the IJ found Petitioner to be a credible witness. But the IJ found that Petitioner's nationality was not a central reason for his past mistreatment or fears of future mistreatment, and that being a victim of crime does not establish eligibility for asylum. Admin. R. at 68 (citing Vatulev v. Ashcroft, 354 F.3d 1207 (10th Cir. 2003)). In light of our opinion in Rivera-Barrientos v. Holder, 658 F.3d 1222 (10th Cir. 2011), revised on other ground on denial of reh'g en banc, 666 F.3d 641 (10th Cir. 2012), the IJ considered Petitioner's testimony to more likely fall into the category of a particular social group than nationality, but the IJ found that the incidents Petitioner had described were not linked to his membership in a particular social group and that he had not even defined a particular social group of which he was a member. The IJ noted that the only characteristic Petitioner had described was that he would be perceived to be wealthy, but he had not submitted any evidence to show that society in El Salvador considered wealthy people to be a distinct group. Finally, the IJ found that there was no evidence to show that Petitioner's "encounters with gang members were motivated by anything more than a desire to rob and extort money from [him] and his family as part of a criminal act." Admin. R. at 70. The IJ concluded that Petitioner had failed to establish his eligibility for asylum, had necessarily failed to meet the higher standard for restriction on removal, and had produced no evidence that he would be tortured in El Salvador to support his claim for protection under the CAT. Petitioner appealed to the BIA, appearing through counsel.

The BIA determined in a brief order that Petitioner failed to show any clear error in the IJ's findings of fact. The BIA also agreed with the IJ's conclusions that Petitioner had failed to establish his eligibility for asylum, restriction on removal, or protection under the CAT, and that he had failed to demonstrate a nexus between the harm he had suffered or feared in the future and a statutorily protected ground. The BIA dismissed the appeal, and Petitioner filed this petition for review.

II. Issues on Appeal, Standards of Review, and Discussion

Petitioner argues on appeal that he qualifies for asylum and restriction on removal based on his political opinion (because he refused to join gangs) and his membership in a particular social group (consisting of El Salvadorans who are returning to El Salvador from the United States and perceived to be wealthy). Petitioner's argument that he was persecuted based on his political opinion because he refused to join gangs is so superficially developed as to be waived. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1128 n.6 (10th Cir. 1999). We will consider his argument that the fact that he will be returning from the United States is an ...


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