Monsalve v. Holder, Jr. , 569 F. App'x 6 ( 2014 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1721
MARIA CHRISTINA MONSALVE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Jeffrey B. Rubin and Law Offices of Jeffrey B. Rubin, P.C. on
brief for petitioner.
David H. Wetmore, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Assistant
Attorney General, Civil Division, and John S. Hogan, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
July 7, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SOUTER, Associate Justice. Maria Christina Monsalve, a
native and citizen of Colombia, petitions for review of an order of
the Board of Immigration Appeals (BIA) dismissing her appeal from
an order of an Immigration Judge (IJ) denying her applications for
relief from removal. We dismiss in part and deny in part the
petition.
I.
The evidence and testimony provided by Monsalve during
the administrative proceedings show the following facts, as well as
factual disputes of no consequence to the resolution of her claims.
Between 2003 and 2005, Monsalve lived in Colombia with her
boyfriend, who fell in with the wrong crowd and became involved in
illegal activities. The exact subjects of his unlawful behavior
are uncertain, however, as is the possibly paramilitary activity of
his associates and their reliance on protection by corrupt police.
What is certain is that Monsalve learned of the
boyfriend's criminal dealings and confronted him about them, even
threatening to call the authorities. This exchange occurred in
their house, where both Monsalve's father and cousin were asleep
elsewhere at the time. The boyfriend drew a gun, and on one
account of the facts Monsalve was struggling for possession of it
when it fired twice, hitting the boyfriend. In another version,
Monsalve got the gun and ran to the room where her father was
sleeping, where she shot the boyfriend as he closed in on her.
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By all accounts, Monsalve, her father, and her cousin
took the victim to the hospital, and he died of his wounds there.
The police questioned and arrested all three, though eventually the
killing was ruled to be self-defense and charges were dropped.
After Monsalve's release, the boyfriend's former
associates began to harass her and her family, demanding that they
hand over possessions and even threatening them with death.
Monsalve went into hiding and, in 2007, illegally entered the
United States.
In 2009, she was charged with removability. She conceded
this but applied for asylum, withholding of removal, protection
under the Convention Against Torture (CAT), and voluntary
departure, arguing that she feared harm from the criminal
associates if she were to return to Colombia. While her
applications were pending, Monsalve's cousin, who was in the house
the night of the shooting, was killed, allegedly by the boyfriend's
gang.
The IJ denied Monsalve's asylum application as untimely,
having been filed more than one year after she arrived in the
United States. Her application for withholding of removal was
denied on two grounds. First, the IJ discredited those portions of
her testimony connecting the former associates to either a
paramilitary group or a corrupt police force, because these
allegations had not appeared in Monsalve's previously submitted
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materials. Alternatively, the IJ concluded that, even crediting
the testimony, at most it demonstrated that she faced threats of a
personal vendetta, which is not one of the statutorily protected
grounds required for withholding of removal. The IJ also denied
Monsalve's CAT claim, but granted her the option of voluntary
departure on condition that she post a bond.
She appealed to the BIA, which adopted and affirmed the
IJ's decision with respect to the applications for asylum and
withholding of removal. The BIA noted that Monsalve did not
challenge the IJ's denial of her CAT claim, and thus waived it.1
And because she had failed to post the required bond, the BIA
refused to reinstate the voluntary departure period.2 This
petition for review followed.
II.
The petition raises two issues. Monsalve says that,
because she showed extraordinary circumstances, the BIA and the IJ
erred in denying her asylum application as untimely. And as to the
application for withholding of removal, she contends that it was
error for the BIA and the IJ to discredit her testimony. We lack
1
Although Monsalve's petition to this court cursorily
mentions her CAT claim, her failure to raise it before the BIA
precludes our review. See Sela v. Mukasey, 520 F.3d 44, 47 (1st
Cir. 2008).
2
Monsalve does not press the issue of voluntary departure in
her petition to his court.
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jurisdiction to entertain the first argument and we find the second
beside the point.
Because Monsalve failed to file her asylum application
within one year of entering the United States, she must demonstrate
"either the existence of changed circumstances which materially
affect [her] eligibility for asylum or extraordinary circumstances
relating to the delay." 8 U.S.C. § 1158(a)(2)(D); see also id.§ 1158(a)(2)(B). The BIA and the IJ concluded that Monsalve
demonstrated neither. While Monsalve's petition is silent as to
whether circumstances have changed, it argues that the BIA and the
IJ failed to credit her limited English, lack of access to counsel,
and distress over the incidents in Colombia as adding up to
extraordinary circumstances sufficient to excuse her inaction by
the deadline.
We lack jurisdiction to review a determination that an
untimely asylum application does not qualify for an exception to
the deadline, unless that determination raises a constitutional
claim or a question of law. Id. §§ 1158(a)(3), 1252(a)(2)(D). A
reviewable legal issue may arise where, for instance, the IJ
employs the wrong standard, such as requiring that circumstances be
"exceptional" rather than "extraordinary." See Lumataw v. Holder,
582 F.3d 78, 85 (1st Cir. 2009) (citing Tariq v. Keisler, 505 F.3d
650, 656 (7th Cir. 2007)). But Monsalve points to no
constitutional or legal claim raised by the factual determination
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that her circumstances were not extraordinary, see Lordes v.
Mukasey, 288 F. App'x 712, 715 (1st Cir. 2008), and we accordingly
have no jurisdiction to review.
We do have jurisdiction to review the denial of
Monsalve's application for withholding of removal, however, but her
argument that the BIA and the IJ erred in discrediting her
testimony is unavailing. This is so because the denial of her
withholding of removal application rested on an alternative
foundation, which she fails to challenge and which is well
supported. Both the BIA and the IJ determined that, even if her
testimony were fully credited, Monsalve failed to show that the
threats she faced in Colombia were tied to one of the grounds
efficacious under the statute: race, religion, nationality,
membership in a particular social group, or political opinion. See
8 U.S.C. § 1231(b)(3)(A).
Substantial evidence supports those determinations that
any threats against Monsalve are not based on one of the protected
grounds. See Costa v. Holder, 733 F.3d 13, 16-17 (1st Cir. 2013)
(standard of review is for substantial evidence). She claims that
the harm she faces is motivated by her late boyfriend's associates'
desire to avenge his killing, which occurred in the course of an
altercation that was strictly personal in nature, as any ensuing
resentment likewise appears to be. Nothing in the record compels
the conclusion that the threats against Monsalve are based on her
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race, religion, nationality, membership in a social group, or
political opinion. Here, even assuming for the sake of argument
that the BIA and the IJ erred in discrediting Monsalve's testimony,
the denial of her application must still stand on the alternative
ground that she failed to demonstrate a necessary condition of
entitlement to withholding of removal.
III.
The petition for review is DENIED in part and DISMISSED
in part.
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