Mirna Cruz-Diaz v. Attorney General United States


NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ Nos: 20-1802 and 20-3530 _______________ MIRNA LUZ CRUZ-DIAZ, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________ On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1: A209-220-377) Immigration Judge: John B. Carle _______________ Submitted Under Third Circuit LAR 34.1(a) September 20, 2021 Before: JORDAN, PORTER, and RENDELL, Circuit Judges (Filed: December 21, 2021) _______________ OPINION _______________ JORDAN, Circuit Judge. Mirna Luz Cruz-Diaz, a native and citizen of El Salvador, applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).  This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. The Immigration Judge (“IJ”) denied her application, and the Board of Immigration Appeals (“BIA”) dismissed her appeal of that denial. Cruz-Diaz’s motion to reopen her asylum case, claiming ineffective assistance of counsel, was also denied by the BIA. She has filed two petitions seeking review of those BIA decisions. For the following reasons, we will deny the petitions. I. BACKGROUND Cruz-Diaz entered the United States in June 2016, without being admitted or paroled. In August 2016, the Department of Homeland Security initiated removal proceedings against her. Cruz-Diaz then applied for asylum, withholding of removal, and protection under the CAT. She was initially represented in her removal proceedings by attorney Douglas Grannan. At the final merits hearing, however, Cruz-Diaz was represented by Arkadiy Rafailov, another attorney from Grannan’s law firm. At that merits hearing, Rafailov argued that Cruz-Diaz was eligible for asylum because she had been persecuted in El Salvador on account of her membership in a particular social group (“PSG”) that Rafailov defined as “El Salvadoran female victims of sexual assault and/or rape who are unable to report the crimes to police[.]” (20-3530 AR at 214.) In furtherance of that argument, Cruz-Diaz testified that she left El Salvador because a gang member known as “Marlin” had been threatening to harm her and her family if she did not agree to have sexual relations with him. Eventually, he attacked her as she was walking to her employer’s home, but her employer was able to thwart the attack. Still, Marlin’s threats against her family continued. She testified that she did not 2 contact the police because she feared that Marlin would find out and the police would not help anyway. Although the IJ found Cruz-Diaz to be a credible witness, he denied her application for asylum and withholding of removal. The IJ concluded that her proposed PSG was not legally cognizable because it was partly defined by the harm it sought to protect her from. The IJ also determined that Cruz-Diaz’s harm had resulted from Marlin’s personal, criminal motivations and not from Cruz-Diaz’s membership in any cognizable PSG. The IJ likewise rejected the application for protection under the CAT, because Cruz-Diaz had not shown that she was likely to be tortured in El …

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