Thursday, January 20, 2011

Lizama v. Holder: "Young, Americanized, well-off, Salvadoran male deportees with criminal histories who oppose gangs" not a social group for Asylum and Withholding

In Lizama v. Holder the petitioner, Carlos Lizama, sought judicial review of an order of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

Carlos Lizama, a native and citizen of El Salvador, entered the United States in 1992 and was placed in removal proceedings in 2006.  As a defense to removal he petitioned for asylum, withholding of removal, and protection under CAT. The Immigration Judge denied Mr. Lizama's application for relief. He appealed the Immigration Judge's decision to the BIA, which affirmed.  

The U.S. Court of Appeals for the Fourth Circuit dismissed Mr. Lizama's claim for asylum for lack of jurisdiction in that he had not applied for asylum within one year of entry (8 U.S.C. 1158(a)(2)(B)), and reasoned that recently accumulated wealth did not constitute "changed" or "extraordinary" circumstances which excused his failure to file a timely asylum application. The Court also denied Mr. Lizama's petition for review of his withholding of removal under 8 U.S.C. section 1231(b)(3) holding that being a "young, Americanized, well-off Salvadoran male deportee with a criminal history who opposes gangs" did not qualify him for membership in a social group possessing the common, immutable characteristics and recognized level of visibility and particularity required by BIA precedent.  Finally, the court agreed with the Immigration Judge who held that Mr. Lizama did not qualify for CAT protection because he had failed to establish he would "more likely than not" be tortured if removed to El Salvador.