Constanza v. Holder

47 Citing cases

  1. Gaitan v. Holder

    671 F.3d 678 (8th Cir. 2012)   Cited 28 times
    Holding that "young males from El Salvador who have been subjected to recruitment by MS-13 and who have rejected or resisted membership in the gang based on personal opposition to the gang" is not a cognizable social group

    “Where ... the BIA issues an independent decision without adopting the IJ's conclusions, we review only the BIA decision.” Constanza v. Holder, 647 F.3d 749, 753 (8th Cir.2011) (per curiam). “A denial of asylum is reviewed for abuse of discretion; underlying factual findings are reviewed for substantial support in the record.

  2. Antonio-Fuentes v. Holder

    764 F.3d 902 (8th Cir. 2014)   Cited 3 times
    Rejecting a family-based social group—“member of a household” including cousin “killed by a gang”—because petitioner did not establish gangs specifically targeted his family as a group, thus no “different than any other Salvadoran family that has experienced gang violence”

    Relying on decisions of this court, the Board concluded that none of Fuentes's asserted social groups—“men in El Salvador who fear gang violence because of a former gang member who is also their family member,” a “member of a household of such a person who was killed by a gang,” and “individuals returning to El Salvador after working in the United States who may be perceived to be wealthy”—was recognized as a “particular social group” under the Act. See Matul–Hernandez v. Holder, 685 F.3d 707 (8th Cir.2012); Constanza v. Holder, 647 F.3d 749 (8th Cir.2011). The Board concluded that Fuentes waived his argument that he feared persecution based on political opinion because he failed to assert it before the immigration judge.

  3. Uriostegui-Teran v. Garland

    72 F.4th 852 (8th Cir. 2023)   Cited 10 times
    Rejecting "families of gang kidnapping and gang extortion victims" and other proposed social groups for lack of particularity

    Instead, the groups "could include fathers, mothers, siblings, uncles, aunts, nieces, nephews, grandparents, cousins, and others." Id. at 585; cf. Constanza v. Holder, 647 F.3d 749, 753-54 (8th Cir. 2011) (agreeing with the BIA that petitioner's membership in "a family that experienced gang violence" lacked the "particularity required to constitute a social group").

  4. Shazi v. Wilkinson

    988 F.3d 441 (8th Cir. 2021)   Cited 9 times
    Rejecting a categorical bar to considering mental health evidence in particularly serious crime inquiry

    Insofar as Shazi's arguments relate to his claim for statutory withholding of removal, "[o]ur jurisdiction is limited to constitutional claims and questions of law" because Shazi "is removable as a ‘criminal alien.’ " Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam); 8 U.S.C. § 1252(a)(2)(C)-(D). Whether the BIA applied the correct legal framework in its particularly serious crime determination is a question of law and reviewable even under our limited jurisdiction.

  5. Marambo v. Barr

    932 F.3d 650 (8th Cir. 2019)   Cited 13 times
    Finding that petitioner's "failure to raise [an] issue before the BIA means he has not exhausted his administrative remedies, and we are unable to review his claim for the first time on a petition for review."

    Marambo now petitions this Court for review, asserting that the IJ and BIA erred in concluding that his conviction for unlawful possession of a firearm was a particularly serious crime, and in concluding that he was ineligible for CAT relief because the BIA applied an improper legal standard and, under either standard, he had shown entitlement to relief. Where, as here, the petitioner "is removable as a ‘criminal alien,’ our jurisdiction is limited to constitutional claims and questions of law." Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam) (internal quotation marks omitted). "We review questions of law de novo but accord substantial deference to the BIA’s interpretation of immigration statutes and regulations."

  6. Ngugi v. Lynch

    826 F.3d 1132 (8th Cir. 2016)   Cited 27 times
    Holding that "merely having seen or experienced crime" does not satisfy the particularity or social distinction prongs

    With respect to Ngugi's argument that witnesses to the criminal activities of the Mungiki constitute a particular social group, Ngugi presented no evidence to support the conclusion that merely having seen or experienced crime would satisfy the particularity or social-distinction prongs. Cf. Constanza v. Holder , 647 F.3d 749, 754 (8th Cir. 2011) (rejecting social groups that “are too diffuse to be recognized as a particular social group”). Furthermore, Ngugi presented no evidence that he ever served as a witness against the Mungiki in any public proceedings or, even if he had, that Kenyan society “recognizes the unique vulnerability of people who testify against gang members in criminal proceedings.”

  7. Ortiz-Franco v. Holder

    782 F.3d 81 (2d Cir. 2015)   Cited 55 times
    Holding that appellate jurisdiction to review removal orders is limited to constitutional claims and questions of law

    See Escudero–Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir.2012) (“Escudero asserts only factual issues on appeal.... Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero's petition for review of the BIA's denial of ... protection under the CAT.”); Pieschacon–Villegas v. Att'y Gen., 671 F.3d 303, 309–10 (3d Cir.2011) (“This Court would lack jurisdiction to consider” petitioner's “disagreement with the BIA's determination that he failed to sufficiently demonstrate that public officials in Colombia would likely acquiesce in his torture.... This Court does, however, have jurisdiction over constitutional claims or questions of law [including] ... whether the Board adjudicated [petitioner's] application for deferral of removal under an incorrect legal standard.” (internal quotation marks and citations omitted)); Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011) (same); Saintha v. Mukasey, 516 F.3d 243, 249–51 (4th Cir.2008) (finding that because alien was removable by reason of an aggravated felony conviction, § 1252(a)(2)(C) prohibited evaluation of the factual merits of his CAT claim and alien could not “repackage[ ] his ... argument ... in an attempt to create a reviewable legal question where there is none”); Jean–Pierre v. U.S. Att'y Gen., 500 F.3d 1315, 1320 (11th Cir.2007) (same); Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir.2006) ( “Pursuant to § 1252(a)(2)(C) and (D), our review of Tran's CAT claim is limited to questions of law or constitutional issues.”). But see Issaq v. Holder, 617 F.3d 962, 970 (7th Cir.2010) (holding “a decision under the CAT to deny even deferral of removal [does not] fall[ ] within the jurisdiction-stripping provisions of either § 1252(a)(2)(B) or § 1252(a)(2)(C) ”); Lemus–Galvan v. Mukasey, 518 F.3d 1081, 1083–84 (9th Cir.2008) (same).

  8. Chilel v. Holder

    779 F.3d 850 (8th Cir. 2015)   Cited 22 times
    Endorsing BIA's interpretation

    “A group of persons defined as those who suffer violence because they refused to join criminal gangs lacks the visibility and particularity required to constitute a social group for purposes of 8 U.S.C. § 1101(a)(42)(A).” Ortiz–Puentes v. Holder, 662 F.3d 481, 483 (8th Cir.2011) (quotation omitted); see also Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011) (“[P]ersons resistant to gang violence are too diffuse to be recognized as a particular social group.” (Quotation omitted)).

  9. Chilel v. Holder

    779 F.3d 850 (8th Cir. 2014)

    “A group of persons defined as those who suffer violence because they refused to join criminal gangs lacks the visibility and particularity required to constitute a social group for purposes of 8 U.S.C. § 1101(a)(42)(A).” Ortiz–Puentes v. Holder, 662 F.3d 481, 483 (8th Cir.2011) (quotation omitted); see also Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011) (“[P]ersons resistant to gang violence are too diffuse to be recognized as a particular social group.” (Quotation omitted)).

  10. Brikova v. Holder

    699 F.3d 1005 (8th Cir. 2012)   Cited 9 times
    Finding arguments regarding factual disputes and weighing evidence outside the court's jurisdiction

    This provision, sometimes referred to as the “criminal alien bar,” precludes this court's review of the BIA's decision on Job's applications for asylum, withholding of removal, and CAT protection, save for questions of law or constitutional claims. See8 U.S.C. § 1252(a)(2)(C)-(D); Constanza v. Holder, 647 F.3d 749, 753 (8th Cir.2011). This court has held, however, that despite the criminal alien bar, it “has jurisdiction to determine any preliminary jurisdictional issues,” and this jurisdiction includes the ability to “consider whether [a] petitioner is removable because of [a] conviction.”