         13-329
         Cruz v. Holder
                                                                                        BIA
                                                                                 Verrillo, IJ
                                                                               A094 434 642
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 13th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       SAMUEL CRUZ,
14                Petitioner,
15
16                        v.                                    13-329
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Milagros S. Cruz, Hartford, CT.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Linda S. Wernery, Assistant
27                                     Director; William C. Minick, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DISMISSED in part and DENIED in part.

 5        Samuel Cruz, a native and citizen of El Salvador, seeks

 6   review of a January 4, 2013, order of the BIA affirming the

 7   April 6, 2011, decision of an Immigration Judge (“IJ”) which

 8   pretermitted his asylum application and denied his

 9   applications for withholding of removal and relief under the

10   Convention Against Torture (“CAT”).    In re Samuel Cruz, No.

11   A094 434 642 (B.I.A. Jan. 4, 2013), aff’g No. A094 434 642

12   (Immig. Ct. N.Y. City Apr. 6, 2011).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15        Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

18   applicable standards of review are well-established.     See

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20   I.   Asylum

21        Cruz argues that he established changed and

22   extraordinary circumstances excepting his asylum application



                                  2
 1   from the one-year filing deadline.   We lack jurisdiction to

 2   review the pretermission of Cruz’s asylum application

 3   because he fails to raise a colorable constitutional claim

 4   or question of law.   8 U.S.C. § 1158(a)(2)(B), (3).

 5   II. Withholding of Removal

 6       The agency reasonably found that Cruz failed to

 7   establish that he would be persecuted on account of his

 8   membership in a particular social group, which he defines as

 9   U.S. deportees perceived to be wealthy.   To establish

10   eligibility for withholding of removal based on a social

11   group, an applicant must establish both that the group

12   itself was cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d

13   70, 73 (2d Cir. 2007), and that his membership in that

14   group, and not some other factor, is a central reason why he

15   was or will be targeted for persecution, see Matter of C-T-

16   L-, 25 I. & N. Dec. 341, 344-46 (BIA 2010) (extending the

17   “one central reason” standard to withholding of removal).

18       Harm motivated purely by wealth is not persecution. See

19   Ucelo-Gomez, 509 F.3d at 73.   Contrary to Cruz’s argument,

20   the IJ was not required to consider the specific

21   circumstances of El Salvador because, as a matter of law, a

22   social group is insufficiently particular or socially


                                    3
 1   visible when the defining characteristic of its members is

 2   their perceived wealth.     See id.

 3       Cruz also argues for the first time that he established

 4   a likelihood of persecution based on gang members’ belief

 5   that he shared a friend’s anti-gang opinion.     However, he

 6   failed to exhaust that argument before the agency, and we

 7   therefore do not reach it.     See Lin Zhong v. U.S. Dep’t of

 8   Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

 9   III. CAT Relief

10       Cruz argues that the IJ erred by determining that gang

11   violence did not constitute torture and in denying CAT

12   relief on that basis.     To the contrary, the IJ considered

13   the evidence of gang violence, but reasonably concluded that

14   Cruz did not establish a likelihood of torture, particularly

15   in light of his testimony that his family remained unharmed

16   in El Salvador.    See 8 C.F.R. §§ 1208.16(c), 1208.17

17   (requiring a showing of a likelihood of torture); Melgar de

18   Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding

19   that where alien’s similarly situated relatives continued to

20   live in alien’s native country, claim of future fear of harm

21   was diminished).

22



                                     4
 1       For the foregoing reasons, the petition for review is

 2   DISMISSED to the extent it challenges the pretermission of

 3   Cruz’s asylum application and DENIED regarding withholding

 4   of removal and CAT relief.   As we have completed our review,

 5   any stay of removal that the Court previously granted in

 6   this petition is VACATED, and any pending motion for a stay

 7   of removal in this petition is DISMISSED as moot.   Any

 8   pending request for oral argument in this petition is DENIED

 9   in accordance with Federal Rule of Appellate Procedure

10   34(a)(2), and Second Circuit Local Rule 34.1(b).

11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe, Clerk
13
14




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