DON R. WILLETT, Circuit Judge:
Jose Cruz, a former Salvadoran police officer, fled his home country and illegally entered the United States with his son after receiving threats from the Revolutionaries—a faction of the Barrio 18 gang. Conceding his removability, Cruz requested asylum, withholding of deportation, and protection under the United Nations Convention Against Torture.
The Immigration Judge denied all relief, as did the Board of Immigration Appeals, which accepted the Immigration Judge's key findings that (1) Cruz did not suffer past persecution in El Salvador, (2) Cruz failed to satisfy his burden of establishing a well-founded fear of future persecution, and (3) because Cruz failed to make a prima facie showing on his asylum claim, he necessarily failed to make the more stringent showing for withholding of removal. The Board denied relief across the board, and Cruz brought this petition for review.
Under the highly deferential standards of review that guide our analysis, we conclude that the Board committed no reversible error. We DENY Cruz's petition for review.
In El Salvador, Cruz patrolled his hometown of Zacatecoluca. The Revolutionaries didn't like that and threatened Cruz. The first threat came when Cruz was sitting in a car with his son. Gang members approached Cruz and told him "they knew him, knew where he lived, and wanted him out of the territory." One member raised his shirt to show his gang tattoos and a gun in his waistband. They told Cruz that they weren't going to kill him then and there because his son was with him, and there were too many witnesses. Cruz reported the incident to police officials the next day and then asked for (and received) a three-year leave of absence.
The next threat, not long after, was a threatening note left on Cruz's door: "We don't want to see you in our neighborhood again, or you are going to regret it." Later that day, the gang's leader called Cruz and told him that he'd been given the green light to murder Cruz and his son unless Cruz left town. So Cruz fled the country with his son later that month. His mother continues to live in their Salvadoran home, though, and has not received any additional threats or harassment.
Cruz entered the United States illegally and was apprehended. Admitting he was removable, Cruz applied for asylum, withholding of removal, and protection under the Convention Against Torture.
The Immigration Judge denied all relief. Although the IJ sympathized with Cruz and his family, he nonetheless held that Cruz "failed to meet his burden of proof to establish he was persecuted, or suffered past persecution, or has a well-founded fear of future persecution on account of a protected ground if he is returned to El Salvador." As the IJ saw it, the threats Cruz received "did not arise to the level
Cruz appealed the IJ's decision to the Board, which found no error: "The record [did] not demonstrate that [Cruz was] subjected to extreme conduct constituting past persecution." Nor did the Board buy Cruz's well-founded-fear-of-future-persecution claim. The Board believed he could've reasonably avoided persecution by relocating to another part of El Salvador
Concerning Cruz's petition for protection under the Convention, the Board found that Cruz did not show that it is more likely than not that a "person acting in a public capacity" would "inflict," "acquiesce," or "give consent to ... torture."
Cruz filed a timely motion seeking to reopen proceedings and to reconsider the Board's decision. The Board denied the motion. Cruz then appealed both the Board's decision affirming the IJ and the denial of his motions to reconsider and to reopen proceedings. We consolidated the appeals. Cruz does not appeal the Board's denial of relief under the Convention Against Torture, so those arguments are waived.
Our review is limited and deferential. Motions to reopen removal proceedings are disfavored,
Let's begin with the motion to reconsider. It is Cruz's burden to identify an error of law or an argument that slipped through the cracks. Cruz contends that the Board applied the wrong standard of review to the IJ's finding (that Cruz did not suffer past persecution), a legal error if he can prove it. Unfortunately, he fails to cite pertinent authority to support this proposition. As explained below, the Board did not misstep.
Under 8 U.S.C. § 1229a(c)(6)(C), a motion to reconsider must "specify the errors of law or fact in the previous order and shall be supported by pertinent authority."
Congress has granted the Board abundant leeway, and we review the Board's denial of a motion to reopen "under a highly deferential abuse of discretion standard."
Cruz asserts that the Board applied the wrong standard of review to the IJ's lack-of-past-persecution finding—reviewing the decision for clear error, rather than de novo. Cruz says that the Board compounded this error when it denied his motion to reconsider. He maintains that "[w]hile an IJ's factual determinations can be reviewed only for clear error, an IJ's decisions based upon law or judgment may be reviewed de novo."
The government replies that Cruz can't cite any legal authority for this proposition. And since he provided the Board with no legal basis to grant his motion to reconsider, the Board didn't abuse its discretion when it denied the motion.
We agree with the Government on this point. The Board did not abuse its discretion
The Board held that the IJ could reasonably have found that Cruz didn't suffer past persecution and didn't have a well-founded fear of future persecution. Even though Cruz presented plenty of evidence to demonstrate past and future persecution, we can't say that the evidence compels a finding of persecution; accordingly, the Board did not abuse its discretion.
The Attorney General has discretion to grant asylum to "refugees"
Although Cruz submitted evidence about the threats he received, why he believed these threats were credible, and how prevalent gang activity is in El Salvador, our review is limited, focusing only on whether there is substantial evidence to support the Board's finding.
We think substantial evidence supports the Board's no-past-persecution finding. Although Cruz testified that the gang's threats were against his entire family, he admitted that his family members who still live in El Salvador have experienced no problems with the Revolutionaries. His mother still lives in the home where the threatening note was posted, and she has encountered no difficulties with the gang.
For the same reasons, we cannot say the Board abused its discretion in finding a lack of well-founded fear of future persecution—the rest of the Cruz family has been safe. But there's a small, additional step to our future-persecution inquiry. When the applicant has not demonstrated past persecution, he has the burden to demonstrate that relocating within his home country would be unreasonable.
In sum, we cannot say that the Board went so far afield "that no reasonable factfinder could reach a contrary conclusion."
For these reasons, we DENY Cruz's petition for review.