Sebastian Duarte-Salagoza v. Eric Holder, Jr.

In the

United States Court of AppealsSoun

For the Seventh Circuit

No. 14-2276

SEBASTIAN DUARTE-SALAGOSA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

A200-558-692

ARGUED NOVEMBER 12, 2014 — DECIDED DECEMBER 30, 2014

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge. Sebastian Duarte-Salagosa seeks

review of a decision of the Board of Immigration Appeals

(Board) that affirmed a ruling by an immigration judge (IJ)

denying his claim for asylum and withholding of removal.

Because we lack jurisdiction to review the Board’s ruling that

the asylum claim was untimely, we dismiss that claim. For the

reasons set forth in this opinion, we also deny the petition for

2 No. 14-2276

withholding of removal and protection under the Convention

Against Torture.

I. Background

The factual record in this case is spare and largely confined

to the procedural history, none of which is favorable to our

petitioner, Sebastian Duarte-Salagosa (Duarte). A native and

citizen of Mexico, Duarte entered the United States without

inspection at some time around June 1, 2000. Almost eleven

years later, following a trial in which he was acquitted of

charges of heroin trafficking, the Department of Homeland

Security issued a Notice to Appear on February 22, 2011.

Duarte did not appear for his hearing, and a removal order

was issued in absentia on March 24, 2011.

After Duarte sent a letter to the IJ in which he claimed to

have been unaware of the notice, the IJ reopened the

proceedings, whereupon Duarte applied for asylum,

withholding of removal, and protection under the Convention

Against Torture (CAT). In his application for asylum, Duarte

claimed that he feared returning to Mexico because he had

cooperated with the United States Drug Enforcement Agency

(DEA) and feared retribution from the Zeta drug cartel.

At the hearing, the IJ questioned Duarte, who denied that

he cooperated with the DEA or that he was threatened by the

Zeta cartel as a result of any purported association with law

enforcement. Instead, he claimed that the conflict stemmed

from a run-in that he had with the cartel almost fifteen years

earlier. Prior to entering the United States, Duarte—who was

in the business of selling used cars—was kidnapped by cartel

members and held for ransom. He ultimately escaped, earning

No. 14-2276 3

not only his freedom but also the consternation of the cartel,

which duly responded by issuing death threats against him. At

the hearing, Duarte insisted that the threats were ongoing. He

submitted an affidavit from a friend in Mexico who received

phone calls from persons suspected to be cartel members

warning that Duarte would face retribution if he returned to

that country. The IJ denied Duarte’s application for asylum and

withholding of removal but granted him voluntary departure.

On appeal, the Board held that Duarte’s asylum petition

failed as it neither met the statutory filing deadline nor

established that he qualified for an exception due to “changed

circumstances.” For his petition for withholding of removal,

Duarte asserted for the first time on appeal that he was

targeted for persecution because of his “membership in the

particular group of successful business[men] who have come

under extortionate attacks by the ever-increasing influence of

the Zeta drug cartels fighting for the heart and soul of Mexico’s

business and economic structure.” Pet’r. Br. Ex. 2 at 2. The

Board held that Duarte had failed to preserve this issue

because he did not make this argument in his initial application

or with the IJ. Nonetheless, the Board considered Duarte’s

testimony about his kidnapping at the hands of cartel members

and determined that the cartel detained him for the purposes

of obtaining money rather than to persecute him for his race,

religion, or any other grounds recognized by law.

Finally, although Duarte raised a claim for CAT protection

in his application, he did not argue this claim before either the

IJ or the Board, nor did he submit any evidence to suggest the

possibility of torture at the hands (or with the acquiescence) of

government actors. As a result, neither the IJ nor the Board

4 No. 14-2276

ruled on this claim. Nonetheless, Duarte contends that the

evidence in the record is sufficient to preserve his claim for

CAT protection and asks us to review it now.

II. Analysis

A. Asylum Claim

An alien must file an application for asylum within one

year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B).

Although Duarte’s claim—filed eleven years after arriving in

this country—is clearly untimely, he could still proceed with

his petition if he were to demonstrate “either the existence of

changed circumstances which may materially affect his

eligibility for asylum or extraordinary circumstances relating

to the delay in filing the application within the one year time

period.” Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir. 2013).

However, for us to review his claim, Duarte must also establish

an additional factor, namely the existence of a constitutional

question or question of law related to the timely filing of an

asylum application. Id. (citing 8 U.S.C. § 1252(a)(2)(D)). Absent

a question of this nature, the court may not review the Board’s

denial of asylum. Id.; Khan v. Filip, 554 F.3d 681, 687–88 (7th

Cir. 2009).

Duarte presents neither a timely claim nor a question of

law—constitutional or otherwise—related to the timeliness of

the filing. He merely asks us to review the Board’s factual

determination that no changed or extraordinary circumstances

existed to excuse his late filing. We lack jurisdiction to do this.

Tian v. Holder, 745 F.3d 822, 825–26 (7th Cir. 2014); 8 U.S.C.

§ 1158(a)(3).

No. 14-2276 5

B. Withholding of Removal

In addition to denying his asylum claim, the IJ denied

Duarte’s petition for withholding of removal. The Board

provided its own analysis to support its decision to deny

withholding of removal. Accordingly, we review both

decisions. Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013).

The standard of review is a deferential one: we will not reverse

an agency decision simply because we would have decided the

case differently; we reverse only if any reasonable adjudicator

would be compelled to conclude the contrary. Bueso-Avila v.

Holder, 663 F.3d 934, 937 (7th Cir. 2013). An alien is entitled to

withholding of removal under the INA if he can show through

direct or circumstantial evidence a “clear probability” that his

“life or freedom would be threatened … because of the alien’s

race, religion, nationality, membership in a particular social

group, or political opinion. 8 U.S.C. § 1231(b)(3)(A); Khan, 554

F.3d at 690; Bueso-Avila, 663 F.3d at 937.

The record in this case is devoid of any evidence suggesting

that Duarte has been or will be subject to persecution on

account of his race, religion, nationality, membership in a

political group or political opinion. When questioned by the IJ,

Duarte disclaimed the rationale put forth in his application,

namely that he faced likely retribution from the Zeta cartel on

account of his cooperation with law enforcement. Instead, he

claimed that he faced persecution because the cartel, after

fifteen years, still harbored resentment because he escaped

their captivity without paying ransom. The IJ found this reason

insufficient, informing Duarte that: “[t]he fact that [cartel

members] are angry at you, and want revenge against you,

6 No. 14-2276

does not qualify you for asylum or withholding of removal.”

Pet’r. Br. Ex. 3 at 36.

Duarte refined his argument on appeal to the Board,

introducing for the first time a claim that he was targeted for

persecution on account of his “membership in the particular

social group of successful businesses who have come under

extortionate attacks by the ever-increasing influence of the

dangerous Zeta drug cartels fighting for the heart and soul of

Mexico’s business and economic structure.” Pet’r. Br. Ex. 2 at

2. The Board found that Duarte had not raised this claim to the

IJ and therefore failed to preserve it. Undaunted, Duarte

unveiled yet another version of this claim in his petition to this

court, claiming that the Board and IJ failed to consider his

membership in a group consisting of “Mexican businessmen in

an area known for widespread kidnappings and extortion,

where the Mexican government is unwilling or unable to

effectively intervene and where corruption makes it all but

impossible to tell the good law enforcement from the bad.”

Pet’r. Br. 10.

Duarte failed to exhaust his administrative remedies by

presenting this particular social group for the first time in his

petition to this court. The record reflects that Duarte did not

represent to the IJ that he was a member of any social group

involving businessmen who had been kidnapped by cartel

members. In fact, he expressly disclaimed such arguments.

When asked by the IJ whether the kidnapping formed the basis

for the asylum claim, Duarte’s counsel expressly denied that it

did. Pet’r. Br. Ex. 3 at 28. Instead, he raised the argument for

the first time on appeal, and the Board properly declined to

review it as it had never been presented to the IJ.

No. 14-2276 7

Had the Board considered his social group—and had the

government failed to oppose sufficiently this

consideration—Duarte might have an argument that we

should also consider the matter. This was not the case; instead,

in his petition to this court, Duarte offers still another

formulation of his social group and one that has not been

reviewed in any proceeding. 8 U.S.C. § 1252(d)(1) allows courts

to review final orders of removal only where a party has

exhausted his administrative remedies. It does not direct us to

review issues that have not been raised at any point in the

earlier proceedings. We therefore decline to review either of

Duarte’s purported social groups.

Regardless of this, Duarte’s claim for withholding of

removal suffers from a more immediate defect, namely, that

his feared persecution emanates from a personal dispute rather

than one of the protected grounds covered by the Immigration

and Nationality Act. The possibility of private violence based

on personal grudges, and the inability of a country to protect

its citizens from this, is not a basis for asylum or withholding

of removal. Jonaitiene v. Holder, 660 F.3d 267, 270 (7th Cir. 2011).

Accordingly, we deny Duarte’s claim for withholding of

removal.

C. CAT Protection Claim

A failure to exhaust administrative remedies usually

forecloses a petitioner from raising an issue in federal court

that was not raised before the immigration tribunal. Young

Dong Kim v. Holder, 737 F.3d 1181, 1187 (7th Cir. 2013). To

exhaust an administrative remedy an applicant must “present

to the Board any arguments that lie within its power to

8 No. 14-2276

address.” FH-T v. Holder, 723 F.3d 833, 841 (7th Cir. 2013).

Here, the record establishes that Duarte failed to raise

expressly the issue of CAT protection to either the IJ or to the

Board. Duarte argues that he was not required to address the

issue directly because his testimony and the affidavit from his

friend provided sufficient evidence for the IJ and the Board to

infer that he would be subject to torture upon his return to

Mexico. Such evidence, he claims, was sufficient to preserve his

CAT claim.

We disagree. In the past we have recognized a limited class

of exceptions to the administrative exhaustion requirement to

include, among others, where a party has waived or forfeited

objections, where the Board has addressed an issue on its own,

or for other discretionary reasons. Arobelidze v. Holder, 653 F.3d

513, 517 (7th Cir. 2011). Duarte’s case presents none of these

exceptions, nor does he present any facts or arguments to

convince us that we should exercise our discretion to excuse

him from a requirement that is binding on all other applicants.

While Duarte may have requested that the IJ and the Board

consider the same evidence for other claims, he did not ask

them to consider the same arguments that he now asks us to

consider. To determine whether an issue has been raised at an

earlier proceeding, courts look to whether a party actually

argued it, not whether the argument bears some relation to the

evidentiary record. Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th

Cir. 2010). To do otherwise would effectively eliminate waiver

and preserve every issue for review. At no point in the earlier

proceedings did Duarte argue that he would be tortured upon

return to Mexico. Because no such arguments were made,

neither the IJ nor the Board issued a ruling on the matter. For

No. 14-2276 9

us to review this issue, we would have to speculate about

which arguments Duarte would have made in earlier

proceedings as well as the specific grounds for denying them.

In other words, there is nothing for us to review.

Duarte has failed to exhaust his administrative remedies.

We therefore DENY his petition for review to the extent that it

concerns withholding of removal and the CAT, and we

DISMISS the petition for want of jurisdiction to the extent that

it concerns the request for asylum.