         12-2278
         Saravia v. Holder
                                                                                       BIA
                                                                                  Abrams, IJ
                                                                               A094 099 666
                              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 11th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       LUIS A. SARAVIA, AKA LUIS ANTONIO
14       SARAVIA OLIVO,
15                Petitioner,
16
17                           v.                                 12-2278
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22
23
24       FOR PETITIONER:               Bruno Joseph Bembi, Hempstead, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
28                                     Assistant Attorney General; Francis
29                                     W. Fraser, Senior Litigation
30                                     Counsel; Christina J. Martin, Trial
 1                           Attorney, Office of Immigration
 2                           Litigation, United States Department
 3                           of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DISMISSED in part and DENIED in part.

 9       Luis A. Saravia, a native and citizen of El Salvador,

10   seeks review of a May 11, 2012, decision of the BIA

11   affirming the June 21, 2010, decision of Immigration Judge

12   (“IJ”) Steven R. Abrams, which denied his application for

13   special rule cancellation of removal under the Nicaraguan

14   Adjustment and Central American Relief Act, Pub.L.No. 105-

15   100, 111 Stat. 2160 amended by Pub.L.No. 105-139, 111 Stat.

16   2644 (codified as amended in scattered sections of 8 C.F.R.

17   §1240), (“NACARA”) for lack of hardship, and denied his

18   applications for asylum, withholding of removal, and for

19   relief under the Convention Against Torture (“CAT”) because

20   of changed circumstances, namely that the civil war in El

21   Salvador had ended.   In re Luis A. Saravia, No. A094 099 666

22   (B.I.A. May 11, 2012), aff’g No. A094 099 666 (Immig. Ct.

23   N.Y. City June 21, 2010).   We assume the parties’

24   familiarity with the underlying facts and procedural history

25   in this case.

                                   2
 1   I.   ABC Class Membership

 2        Saravia alleges he is a class member under the American

 3   Baptist Churches v. Thornburgh (“ABC”), 760 F. Supp. 796

 4   (N.D. Cal. 1991), settlement agreement and was thus entitled

 5   to a de novo asylum interview with the United States

 6   Citizenship and Immigration Service (“USCIS”).   Because the

 7   IJ properly continued proceedings to allow Saravia to pursue

 8   an interview with USCIS, Saravia has identified no error in

 9   the agency’s decision.   See 8 C.F.R. § 1240.70(f)(2).    To

10   the extent Saravia wishes to challenge USCIS’s denial of an

11   interview, the correct course of action is to appeal the

12   USCIS decision to the federal district court.    ABC, 760 F.

13   Supp. at 810 (¶ 35) (stating that individual class members

14   are “entitled to seek enforcement of the provisions hereof

15   by initiating a separate proceeding in any federal district

16   court”).

17        Moreover, Saravia has not been deprived of due process

18   as he was provided an opportunity to present his asylum

19   claim before the IJ and BIA.   See ABC, 760 F. Supp. at 822

20   (“The purpose of the interviews of ABC class members is to

21   provide these asylum applicants with an opportunity to fully

22   present their claims for asylum without regard to any prior


                                    3
 1   decision regarding their claim.”); see also 8 C.F.R.

 2   § 1240.70(f)(2) (providing that where result of USCIS

 3   interview is denial of asylum, an applicant may proceed

 4   before an IJ).    Saravia has not argued how the failure to

 5   first have an ABC asylum interview damaged his chance of

 6   obtaining asylum.    See generally Garcia-Villeda v. Mukasey,

 7   531 F.3d 141, 149 (2d Cir. 2008) (finding no due process

 8   violation when the petitioner could not demonstrate

 9   prejudice).

10   II. NACARA/Special Rule Cancellation

11       Pursuant to 8 U.S.C. § 1252(a)(2)(B)(I), we lack

12   jurisdiction to review the denial of special rule

13   cancellation of removal.    See also NACARA, § 203(a)(1).     We

14   retain jurisdiction, however, to review constitutional

15   claims or questions of law.    8 U.S.C. § 1252(a)(2)(D).    The

16   only question of law Saravia raises is whether he was

17   entitled to a presumption of hardship.

18       As an ABC class member, Saravia was eligible for

19   special cancellation of removal.    8 C.F.R. §§ 1240.61,

20   1240.66.   Because of his criminal conviction, however, he

21   was subject to the heightened standards under 8 C.F.R.

22   § 1240.66(c).    Although a presumption of “extreme hardship”


                                    4
 1   exists for ABC class members, see 8 C.F.R. § 1240.64(d), the

 2   presumption does not apply to applicants like Saravia who

 3   are inadmissible based on criminal convictions and are

 4   required to show “exceptional and extremely unusual

 5   hardship.”   See Gonzalez-Ruano v. Holder, 662 F.3d 59, 61

 6   (1st Cir. 2011). (“[An] applicant [for relief under 8 C.F.R

 7   § 1240.66©] loses the benefit of the presumption under the

 8   hardship prong.” (citing 8 C.F.R. § 1240.64(d))).     Because

 9   the agency applied the proper hardship standard, and we lack

10   jurisdiction to further review the merits of the hardship

11   determination, we dismiss this part of the petition for lack

12   of jurisdiction.     See Barco-Sandoval v. Gonzales, 516 F.3d

13   35, 39-40 (2d Cir. 2008).

14   III. Asylum, Withholding, and CAT

15       With respect to asylum, Saravia argues the agency

16   failed to afford him the proper presumptions and to consider

17   all his evidence.     Even assuming we retain jurisdiction to

18   review his arguments, see 8 U.S.C. § 1252(a)(2)© & (D), they

19   are without merit.     See Ivanishvili v. U.S. Dep’t of

20   Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006).

21       Saravia argues that the IJ failed to make credibility

22   and past persecution findings, and failed to accord him a

23   presumption of a well-founded fear of persecution based on
                                     5
 1   his demonstration of past-persecution.   However, the IJ

 2   assumed both credibility and past persecution were

 3   established, as he concluded that the government had

 4   demonstrated changed country conditions in El Salvador, an

 5   analysis which necessarily presumes credible testimony and

 6   past persecution.    See 8 C.F.R. § 1208.13(b)(1)(i)(A).

 7   Because Saravia did not allege that the Salvadoran

 8   government was now looking for him, and the harm he suffered

 9   due to the civil war was the sole basis for his claim, the

10   end of the war constituted a change in circumstances such

11   that he no longer had a well-founded fear.    See Melgar de

12   Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (citing to

13   State Department Reports on El Salvador for the proposition

14   that “since the signing of the peace accords in January

15   1992, the country’s political and social conditions have

16   materially changed.”).

17       Saravia also argues that the death of his sister and

18   his father’s assault are sufficient examples of harm to

19   rebut the showing of changed circumstances and establish a

20   well-founded fear.   However, the agency correctly noted that

21   Saravia was unable to establish any political motive for his

22   sister’s killing, and failed to demonstrate that his father

23   was attacked and robbed for anything other than financial
                                    6
 1   gain.   See Melgar de Torres, 191 F.3d at 314 & n.3 (noting

 2   that “general crime conditions are not a stated ground [for

 3   asylum]” and “[g]eneral violence in El Salvador does not

 4   constitute persecution”).    Because Saravia’s claims are all

 5   based on the same factual predicate, and he was unable to

 6   meet the lower burden for asylum, he necessarily is unable

 7   to meet the higher standard required for withholding of

 8   removal or CAT relief.   See Gomez v. INS, 947 F.2d 660, 665

 9   (2d Cir. 1991).

10       For the foregoing reasons, the petition for review is

11   DISMISSED in part and DENIED in part.   As we have completed

12   our review, petitioner’s pending motion for a stay of

13   removal is DENIED as moot.

14                                FOR THE COURT:
15                                Catherine O’Hagan Wolfe, Clerk

16




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