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Keywords

torthearingasylumretribution
jurisdictionhearingtrialwillasylumretribution

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Duarte-Salagosa v. Holder

Facts

Sebastian Duarte-Salagosa, a native and citizen of Mexico, entered the U.S. without inspection around June 1, 2000. After being acquitted of heroin trafficking charges, he received a Notice to Appear in 2011 but did not attend his hearing, resulting in a removal order. After reopening the proceedings, Duarte applied for asylum and withholding of removal, claiming fear of retribution from the Zeta drug cartel due to past kidnapping and ransom demands. However, during the hearing, he denied any cooperation with law enforcement and attributed his fears to a personal dispute with the cartel.

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.

Issue

Did the alien exhaust his administrative remedies, and does his claim for withholding of removal meet the necessary legal standards under the Immigration and Nationality Act?

Did the alien exhaust his administrative remedies, and does his claim for withholding of removal meet the necessary legal standards under the Immigration and Nationality Act?

Rule

An alien must file an application for asylum within one year of arriving in the U.S. and must demonstrate a clear probability of persecution based on protected grounds to qualify for withholding of removal under the INA.

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).

Analysis

The court determined that Duarte failed to exhaust his administrative remedies by not presenting his social group argument to the IJ. Furthermore, the court found that his feared persecution was based on personal grievances rather than the protected grounds required for asylum or withholding of removal. The IJ's findings indicated that the threats from the cartel were not sufficient to establish a claim under the INA.

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.

Conclusion

The court dismissed Duarte's asylum claim and denied his petition for withholding of removal and protection under the Convention Against Torture.

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.

Who won?

The government prevailed in this case as the court upheld the denial of Duarte's claims based on his failure to exhaust administrative remedies and the nature of his persecution claims.

The government prevailed in this case as the court upheld the denial of Duarte's claims based on his failure to exhaust administrative remedies and the nature of his persecution claims.

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