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Castellanos-Pineda v. Holder

United States Court of Appeals, Tenth Circuit

September 20, 2013

ERIC H. HOLDER, JR., United States Attorney General, Respondent

Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior Circuit Judge.


Wade Brorby Senior Circuit Judge

Deysi Castellanos-Pineda petitions for review of the Board of Immigration Appeals' ("BIA") denial of her applications for restriction on removal and protection under the Convention Against Torture ("CAT"). Because we conclude we lack jurisdiction to review any of Ms. Castellanos-Pineda's claims, we dismiss her petition for review.


Ms. Castellanos-Pineda is a native and citizen of El Salvador who entered the United States illegally in 2006. The Department of Homeland Security served her with a notice to appear, and she conceded removability. In 2010, she submitted applications for asylum, restriction on removal, [1] and protection under the CAT, claiming a fear of persecution in El Salvador based on her membership in a particular social group comprised of business owners.

Ms. Castellanos-Pineda testified at a hearing before an immigration judge ("IJ") that she had sold grains, sugar, beans, and rice out of her garage in El Salvador. In the summer of 2005, after she had operated her store for two years, members of the MS 18 gang approached her, showed her their guns, and demanded that she pay "rent." She testified that she did not report the gang members' demand for money to the police because they threatened to kill her if she refused to pay. She further testified that other shop owners were also required to pay rent to MS 18, and one shop owner was killed when he stopped making payments.

Ms. Castellanos-Pineda continued to make weekly $50 payments to the gang for about six months. She stopped paying in January 2006 because she did not have enough money. On the evening of the day that she refused to pay, she heard noises coming from her roof. She did not see what or who made the noises, but she believed it was members of the MS 18 gang trying to enter her home to harm her. The next morning, Ms. Castellanos-Pineda left for her mother's house in another town about 45 minutes away. She lived with her mother for four months before she decided to leave for the United States because she feared that the gang would come after her. Ms. Castellanos-Pineda initially left her son with her mother in El Salvador. She later brought him to the United States after gang members demanded money from her mother and threatened to kidnap her son because they knew she was living in the United States. After her son left El Salvador, the MS 18 gang has not contacted her parents, who continue to live in El Salvador, as do her grandmother and her brother. The MS 18 gang never physically harmed her.

The IJ granted Ms. Castellanos-Pineda voluntary departure but denied all other relief. The BIA dismissed her appeal.

Standards of Review

Because a single member of the BIA affirmed the IJ's decision in a brief order pursuant to 8 C.F.R. § 1003.1(e)(5), we review the BIA's decision as the final order of removal. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). "We look to the record for substantial evidence supporting the agency's decision . . . ." Id. (internal quotation marks omitted). We review legal questions de novo. Ferry v. Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006).

Denial of Asylum

The Attorney General initially argues that we should dismiss Ms. Castellanos-Pineda's petition for lack of jurisdiction to the extent that she challenges the BIA's denial of her asylum application. The BIA denied asylum because she failed to file her application by the one-year statutory deadline. The BIA further concluded that she did not establish eligibility for an exception to the time limit by presenting evidence of changed circumstances in El Salvador or extraordinary circumstances. We agree with the Attorney General that we lack jurisdiction to review these determinations. See 8 U.S.C. § 1158(a)(3). But we do not construe Ms. Castellanos-Pineda's petition as raising any claim regarding the BIA's denial of asylum. Rather, she challenges only the BIA's denial of restriction on removal and protection under the CAT. We address below why we lack jurisdiction to review the claims that she asserts with respect to the BIA's denial of those forms relief.

Denial of Restriction on Removal and Protection Under the CAT

Ms. Castellanos-Pineda may not be removed to El Salvador "if the Attorney General decides that [her] life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). In order to be eligible for restriction on removal, Ms. Castellanos-Pineda must establish a clear probability of persecution on account of one of the protected grounds. See Woldemeskel v INS, 257 F.3d 1185, 1193 (10th Cir. 2001). A "clear probability" means the persecution is "more likely than not" to occur upon return to the country of removal. Id. "And the persecution must be committed by the government or forces the government is either unable or unwilling to control." Neri-Garcia v. Holder, 696 F.3d 1003, 1009 (10th Cir. 2012) (internal quotation marks omitted). "An alien can establish a presumptive entitlement to restriction on removal on the basis of past persecution." Id. "To receive the protections of the CAT, an alien must demonstrate that it is more likely than not that ...

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