Ruben Cambara-Cambara v. Loretta E. Lynch

837 F.3d 822, 2016 U.S. App. LEXIS 16707, 2016 WL 4758488
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 13, 2016
Docket15-1916, 15-1917
StatusPublished
Cited by31 cases

This text of 837 F.3d 822 (Ruben Cambara-Cambara v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruben Cambara-Cambara v. Loretta E. Lynch, 837 F.3d 822, 2016 U.S. App. LEXIS 16707, 2016 WL 4758488 (8th Cir. 2016).

Opinion

LOKEN, Circuit Judge.

Ruben and Mario Cambara-Cambara (“the Cambaras”) are brothers who left their native country of Guatemala and entered the United States without inspection in February 2001 and August 2004, respectively. They filed separate applications for asylum, withholding of removal to Guatemala, and relief under the Convention Against Torture (“CAT”) in 2009. The immigration judge (“U”) denied the applications for asylum as untimely and ruled that the brothers did not prove they were eligible for asylum, withholding of removal, or CAT relief. The Board of Immigration Appeals (“BIA”) affirmed in separate opinions. We consolidated and now deny their separate petitions for review.

*824 “To be eligible for withholding of removal to a particular country, an alien must show a ‘clear probability’ that he would suffer persecution on account of a protected ground such as political opinion or membership in a social group.” Miah v. Mukasey, 519 F.3d 784, 787 (8th Cir.2008), citing 8 U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A), and Alemu v. Gonzalez, 403 F.3d 572, 576 (8th Cir.2005). The Cambar-as testified at their March 2012 hearings that they were likely to suffer persecution if they returned to Guatemala due to their membership in two particular social groups: the Cambara family and educated Guatemalan landowners and farmers. 1

Mario testified that Maras 18 gang members targeted various members of his family in Guatemala, for extortionate. demands because they were wealthy landowners. In 1995, the gang made death threats in demanding money from his uncle; when his uncle stopped making payments, they tried to burn his house down with his family inside and then shot and stabbed him to .death. Three months later, the gang made death threats to another uncle and attacked him when he did not pay their extortion demand, causing physical and psychological trauma. Gang members extorted money from his father for many years by threatening him and his family, and attacked his father with machetes when he stopped paying in December 2008. Ruben testified that,' in 2009, gang members threatened a Cambara cousin’s family when he could no longer make the demanded payments, then shot and killed his son shortly thereafter. Mario testified that the family reported these incidents to the police, but the responsible parties have not been captured, Ruben testified that he agreed with Mario’s testimony and believed his family was extorted because of their property.

Both Mario and Ruben testified that they were never personally harmed or threatened by Maras 18 gang members. Two of Mario’s daughters still live in his hometown with his wife’s mother and have not been threatened. One of Ruben’s daughters lives in.Guatemala, and he sent two American-born daughters to Guatemala for approximately one month to meet his grandmother. The Cambaras have another brother who is an officer in Guatemala’s National Civil Police Force.

The IJ found that both asylum applications were untimely, because they were filed more than a year after the Cambaras entered the United States, and neither brother established changed or extraordinary circumstances that excused his untimely filing. Alternatively, the IJ concluded that the asylum applications, if timely, were denied because, although their testimony was credible, neither brother proved that (1) he had suffered past persecution, (2) he was a member of a cognizable social group, and (3) he would be persecuted in the future on account of his membership in that social group. The IJ concluded there was evidence the fámily may have been targeted based on wealth, but perceived wealth alone is not a cognizable social group. The IJ further concluded that, as the Cambarás did not meet the standard for asylum, they did not meet the higher standards for withholding of removal or CAT relief.

The BIA affirmed the IJ’s opinions and dismissed the Cambaras’ appeals. The BIA rejected their claim that the December 2008 attack on their father constituted changed or extraordinary circumstances because the brothers testified to ongoing threats and harm to family members be *825 fore they departed Guatemala. The BIA alternatively concluded that the Cambaras were not eligible for asylum because they failed to prove past persecution or a well-founded fear of future persecution on account of their membership in particular social groups. The brothers admitted they had never been threatened or harmed, and the BIA found there was no “nexus” between their feared future harm and their status as members of the Cambara family. “Although members of the Cambara family have been targeted for harm and mistreatment by the gangs in Guatemala, the [brothers have] not established that [their] family members have been specifically targeted due to their familial relationship, particularly where some members of the family have not received threats or been harmed.” The BIA also ruled that “educated landowners and farmers”; is not a cognizable social group, and that-the Cambaras failed to satisfy the higher burden ■ for withholding of removal, and did not prove they were eligible for CAT relief. We review both the BIA and IJ decisions “[because the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning.” Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004).

A. Asylum. An asylum applicant must “demonstrate[ ] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An untimely application may be considered if the alien “demonstrates to the satisfaction of the Attorney General either ... changed circumstances which materially affect the applicant’s eligibility ...... .or extraordinary circumstances” that justify the late application. § 1158(a)(2)(D). ..The Cambaras concede that they filed, their application more than a year after they arrived in .the United States, but they contend that the attack on their father in 2008 constituted changed circumstances.

“No court shall have jurisdiction to review any determination of the Attorney General” as to whether changed or extraordinary circumstances warrant consideration of an untimely asylum application. 8 U.S.C, § 1158(a)(3). Thus, we do not have “jurisdiction to review a determination that an application for asylum is untimely, except when the petition seeks review of constitutional claims or questions of law.” Bin Jing Chen v. Holder, 776 F.3d 597, 601 (8th Cir.2015) (quotation omitted); see 8 U.S.C. § 1252(a)(2)(D). The BIA’s “factual findings or discretionary judgments ... are insulated from judicial review,” including whether the applicant has demonstrated changed or extraordinary circumstances.

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Bluebook (online)
837 F.3d 822, 2016 U.S. App. LEXIS 16707, 2016 WL 4758488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruben-cambara-cambara-v-loretta-e-lynch-ca8-2016.