         09-5166-ag
         Cedillos-Alvarado v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A071 596 796
                                                                               A099 558 475
                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21st day of October, two thousand ten.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                PETER W. HALL,
 9                GERARD E. LYNCH,
10                      Circuit Judges.
11       ______________________________________
12
13       RAUL ENRIQUE CEDILLOS-ALVARADO, also
14       known as RAUL ENRIQUE IEDILLOS, also
15       known as RAUL CEDILLOS, also known as
16       RAUL EMRIGUE CEDILLOS, also known as
17       RAUL ENRIQUE CEDILLOS-ALVARADO, also
18       known as E RAUL CEDILLOS, also known
19       as CEDILLOS RAUL E., also known as
20       CEDILLOS E. RAUL; JUANA YANETH
21       CEDILLOS, AKA JUANA YANETH CORTEZ,
22                Petitioners,
23
24                           v.                                 09-5166-ag
25                                                              NAC
26       ERIC H. HOLDER, JR.,
27       UNITED STATES ATTORNEY GENERAL,
28                Respondent.
29       ______________________________________
 1   FOR PETITIONERS:       Elyssa N. Williams, Formica, P.C.,
 2                          New Haven, Connecticut.
 3
 4   FOR RESPONDENT:        Tony West, Assistant Attorney
 5                          General; Francis W. Fraser, Senior
 6                          Litigation Counsel; W. Daniel Shieh,
 7                          Trial Attorney, Office of
 8                          Immigration Litigation, United
 9                          States Department of Justice,
10                          Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   is DENIED.

16       Raul Enrique Cedillos-Alvarado and Juana Yaneth

17   Cedillos, natives and citizens of El Salvador, seek review

18   of a November 18, 2009, decision of the BIA denying their

19   motion to remand and affirming the November 6, 2008,

20   decision of Immigration Judge (“IJ”) Michael W. Straus,

21   which denied petitioners’ application for asylum,

22   withholding of removal, and relief under the Convention

23   Against Torture (“CAT”).   In re Raul Enrique Cedillos-

24   Alvarado, Juana Yaneth Cedillos, Nos. A071 596 796, A099 558

25   475 (BIA Nov. 18, 2009), aff’g Nos. A071 596 796, A099 558

26   475 (Immig. Ct. Hartford Nov. 6, 2008).   We assume the

27   parties’ familiarity with the underlying facts and

28   procedural history in this case.

                                   2
 1       Under the circumstances of this case, we review the

 2   decision of the IJ as supplemented by the BIA.     See Yan Chen

 3   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The agency’s

 4   factual findings are reviewed for “substantial evidence,”

 5   and will be upheld unless any reasonable adjudicator would

 6   be compelled to conclude to the contrary. Id.; 8 U.S.C. §

 7   1252(b)(4)(B). An alien who demonstrates past persecution

 8   benefits from a presumption that he faces a threat of future

 9   persecution for the purposes of both asylum and withholding

10   of removal.   See 8 C.F.R. §§ 1208.13(b)(1),

11   1208.16(b)(1)(i).     The burden rests with the government to

12   rebut this presumption by showing, by a preponderance of the

13   evidence, inter alia, a “fundamental change in circumstances

14   such that the applicant no longer has a well-founded fear of

15   persecution in the applicant’s country of nationality” or

16   the reasonable possibility of internal relocation within the

17   country of removal.     8 C.F.R. §§ 1208.13(b)(1)(i)-(ii),

18   1208.16(b)(1)(i)-(ii).

19       The BIA did not err in affirming the IJ’s finding that

20   assuming, arguendo, that petitioners had suffered past

21   persecution, they no longer had a well-founded fear of

22   future persecution because conditions in El Salvador had

                                     3
 1   fundamentally changed.   The agency reasonably found that the

 2   government had met its burden of establishing a fundamental

 3   change in circumstances. See Melgar de Torres v. Reno, 191

 4   F.3d 307, 314 (2d Cir. 1999) (recognizing that conditions in

 5   El Salvador have materially changed and that the increase in

 6   general criminal violence does not lend support to an asylum

 7   claim).   A U.S. Department of State report in the record

 8   indicated that the civil war in El Salvador ended in 1992,

 9   that former guerilla forces have not been targeting

10   individuals who fought on the opposing side in that war, and

11   that “there have not been politically motivated crimes in El

12   Salvador in years.”   Bureau of Democracy, Human Rights, and

13   Labor, U.S. Department of State, El Salvador – Profile of

14   Asylum Claims & Country Conditions – April 2003, at 5.      Such

15   a U.S. Department of State report “[c]onsidered by itself .

16   . . [can] constitute[] substantial evidence of a fundamental

17   change in . . . country conditions sufficient to rebut any

18   presumption of a well-founded fear of future persecution.”

19   Lecaj v. Holder, 616 F.3d 111, 116 (2d Cir. 2010).

20       Because the agency’s finding that conditions in El

21   Salvador had changed is dispositive of their claim of a

22   well-founded fear of persecution, 8 C.F.R. § 1208.13(b)(1),


                                   4
 1   and all of petitioners’ claims were based on the same

 2   factual predicate, the agency reasonably denied their

 3   applications for asylum, withholding of removal, and CAT

 4   relief.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 5   2006).

 6       Nor did the BIA abuse its discretion in denying

 7   petitioners’ motion to remand to apply for cancellation of

 8   removal.     A decision on a motion to remand is reviewed for

 9   abuse of discretion.     Li Yong Cao v. U.S. Dep’t of Justice,

10   421 F.3d 149, 156 (2d Cir. 2005).     “A motion to remand that

11   does not simply articulate the remedy sought on appeal will

12   be held to the substantive standards applicable either to a

13   motion to reconsider or to reopen.”     Id.   Cancellation of

14   removal requires, inter alia, a showing that the alien’s

15   “removal would result in exceptional and extremely unusual

16   hardship to the alien’s spouse, parent, or child, who is a

17   citizen of the United States.” 8 U.S.C. § 1229b(b)(1)(D).

18   However, petitioners failed to provide any detailed evidence

19   regarding their U.S. citizen son’s medical condition or

20   treatment.     The BIA therefore did not err in concluding that

21   they failed to demonstrate a likelihood that their

22   application for cancellation of removal would succeed on the


                                     5
 1   merits.   See INS v. Abudu, 485 U.S. 94, 104 (1988)

 2   (recognizing that failure to offer evidence establishing a

 3   prima facie case for the underlying substantive relief

 4   sought is a proper ground for denying a motion to reopen);

 5   see also In re M-S-, 22 I.&.N. Dec. 349, 357 (BIA 1998)

 6   (“[W]here an alien is seeking previously unavailable relief

 7   and has not had an opportunity to present her application

 8   before the [IJ], the Board will look to whether the alien

 9   has proffered sufficient evidence to indicate that there is

10   a reasonable likelihood of success on the merits.”).

11       For the foregoing reasons, the petition for review is

12   DENIED.   Petitioner’s motion for a stay of removal is

13   DISMISSED as moot.

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk
16
17
18




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