                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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