Jose Cortez-Mendez v. Matthew Whitaker

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-2389 JOSE MARCIAL CORTEZ-MENDEZ, Petitioner, v. MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 25, 2018 Decided: January 7, 2019 Before WILKINSON and AGEE, Circuit Judges, and James P. JONES, United States District Judge for the Western District of Virginia, sitting by designation. Petition for review denied by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson and Judge Jones joined. ARGUED: Melissa Jill Mitchell, LAW OFFICES OF PAUL A. SUHR, PLLC, Raleigh, North Carolina, for Cortez-Mendez. Robert Michael Stalzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Paul A. Suhr, LAW OFFICES OF PAUL A. SUHR, PLLC, Raleigh, North Carolina, for Cortez-Mendez. Chad A. Readler, Acting Assistant Attorney General, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. AGEE, Circuit Judge: Jose Cortez-Mendez, a native and citizen of El Salvador, seeks review of an order from the Board of Immigration Appeals (“BIA”). The BIA dismissed his appeal following an immigration judge’s (“IJ’s”) denial of his application for withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3), and protection under the United Nations Convention Against Torture (“CAT”), 8 C.F.R. § 1208.16(c). For the reasons below, we deny the petition for review. I. Cortez-Mendez was born in El Salvador. His father, Marcial Cortez, is deaf and mute. People in El Salvador with these physical impairments have suffered routine ridicule and discrimination, despite the existence of anti-discrimination laws. See A.R. 422 (containing U.S. Dep’t of State, El Salvador, 2014 Country Reports on Human Rights Practices). Because of his disabilities, Marcial Cortez could not provide for his family and they moved in with Cortez-Mendez’s aunt. Cortez-Mendez’s mother also abandoned the family when he was seven because of the family’s difficulties. As a teenager, MS-13 and MS-18 gang members began targeting Cortez-Mendez for gang recruitment. They harassed him and “threatened [him] with death, that if [he] did not become a gangster, they were going to kill [him].” A.R. 175. Despite this harassment, the gangs never physically harmed Cortez-Mendez or anyone in his family. To this day, his father, mother, sisters, and aunt live in El Salvador unharmed. 2 Cortez-Mendez illegally entered the United States in 2003. The Department of Homeland Security served him with a Notice to Appear, but he failed to appear at his hearing and was ordered removed to El Salvador in abstentia. Nevertheless, Cortez- Mendez settled in North Carolina with his uncle, girlfriend, and two children. In 2005, gang members called Cortez-Mendez’s mother in El Salvador, demanded money, and demanded Cortez-Mendez’s whereabouts. Through his aunt, Cortez-Mendez learned the gangs told his mother they “remembered [him] as a son of a mute and dumb person” and threatened to “kill [him] and dismember [him]” if he returned to El Salvador. A.R. 176. In 2015, Cortez-Mendez applied for ...

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