Guartazaca v. Garland ( 2022 )

19-4040
Guartazaca v. Garland
BIA
Wright, IJ
A088 440 840
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 23rd day of February, two thousand
4 twenty-two.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GUIDO CALABRESI,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 CARLOS GUARTAZACA, AKA CARLOS
14 UMBENO GUARTAZA QUINONES,
15 Petitioner,
16
17 v. 19-4040
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
1 _____________________________________
2
3 FOR PETITIONER: Edgar L. Fankbonner, New York, NY.
4
5 FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant
6 Attorney General; Stephen J. Flynn,
7 Assistant Director; Lynda A. Do, Trial
8 Attorney, Office of Immigration Litigation,
9 United States Department of Justice,
10 Washington, DC.
11 UPON DUE CONSIDERATION of this petition for review of a Board of
12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
13 DECREED that the petition for review is DENIED.
14 Petitioner Carlos Guartazaca, a native and citizen of Ecuador, seeks review
15 of a November 7, 2019 decision of the BIA affirming a March 14, 2018 decision of
16 an Immigration Judge (“IJ”) denying withholding of removal and relief under the
17 Convention Against Torture (“CAT”). In re Carlos Guartazaca, No. A 088 440 840
18 (B.I.A. Nov. 7, 2019), aff’g No. A 088 440 840 (Immig. Ct. N.Y. City Mar. 14, 2018).
19 We assume the parties’ familiarity with the underlying facts and procedural
20 history.
21 We have reviewed the IJ’s decision as modified and supplemented by the
22 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005);
23 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
2
1 factual findings for substantial evidence, and we review questions of law de novo.
2 See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
3 An applicant for withholding of removal must show that his “life or
4 freedom would be threatened in th[e] country [of removal] because of . . . race,
5 religion, nationality, membership in a particular social group, or political
6 opinion.” 8 U.S.C. § 1231(b)(3)(A). We find no error in the agency’s conclusion
7 that Guartazaca failed to show a nexus between the motives of his alleged
8 attackers and his membership in his proposed social group of adolescent males
9 taking on patriarchal roles in their families. See Paloka, 762 F.3d at 195 (“Whether
10 the requisite nexus exists depends on the views and motives of the persecutor.”
11 (citation and quotation marks omitted)); see also INS v. Elias-Zacarias, 502 U.S. 478,
12 483 (1992) (requiring “some evidence” of motive, “direct or circumstantial”).
13 Guartazaca argues that the gangs targeted him because of his status as an
14 adolescent male who was acting as the financial head of the family or had a
15 patriarchal role. But he testified that the central motivation for the gangs in
16 extorting people was money and acknowledged that they indiscriminately
17 targeted the entire community. Although there may be “more than one motive
18 for mistreatment,” Guartazaca offered no evidence to show that the gang targeted
19 him because of his status in his family as opposed to a desire for monetary gain or
3
1 to increase its ranks. Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (citation
2 omitted); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (“[H]arm
3 motivated purely by wealth is not persecution.”). And although Guartazaca
4 alleged that crime was ubiquitous in his home village, “general crime conditions”
5 are not a basis for withholding of removal. Melgar de Torres v. Reno, 191 F.3d 307,
6 314 (2d Cir. 1999).
7 We also find no error in the agency’s denial of Guartazaca’s CAT claim.
8 Guartazaca had the burden to show that he will “more likely than not” be tortured
9 by or with the acquiescence of public officials. 8 C.F.R. §§ 1208.16(c)(2),
10 1208.17(a), 1208.18(a)(1). To assess whether torture is more likely than not to
11 occur, the agency considers “all evidence relevant to the possibility of future
12 torture, including, but not limited to” (1) evidence of an applicant’s past torture;
13 (2) evidence that the applicant could safely relocate within the country of removal;
14 (3) evidence of “gross, flagrant[,] or mass” human rights violations in the country
15 of removal; and (4) other relevant information regarding country conditions. Id.16 § 1208.16(c)(3). An applicant “will never be able to show that he faces a more
17 likely than not chance of torture if one link in the chain cannot be shown to be
18 more likely than not to occur. It is the likelihood of all necessary events coming
19 together that must more likely than not lead to torture, and a chain of events
4
1 cannot be more likely than its least likely link.” Savchuck v. Mukasey, 518 F.3d 119,
2 123 (2d Cir. 2008) (quoting In re J–F–F–, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006)).
3 Substantial evidence supports the denial of CAT relief. Guartazaca’s
4 testimony that Ecuadorian gangs extorted and beat him is not sufficient to
5 establish torture. See 8 C.F.R. §§ 1208.18(a)(2), (4) (defining torture as an “extreme
6 form of cruel and inhuman treatment” that “does not include lesser forms of cruel,
7 inhuman[,] or degrading treatment” and requiring, in relevant part, “severe
8 physical pain and suffering” or “threat of imminent death”); Kyaw Zwar Tun v.
9 INS, 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture requires proof of something more
10 severe than the kind of treatment that would suffice to prove persecution.”).
11 Moreover, evidence of general crime does not establish that someone in
12 Guartazaca’s particular circumstances will more likely than not be tortured by
13 gangs in the future, particularly as he alleged that he was targeted previously
14 because he was an adolescent and he is now in his thirties. See Mu-Xing Wang v.
15 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (holding that evidence of incidents of
16 torture in an applicant’s country does not alone establish “that someone in his
17 particular alleged circumstances is more likely than not to be tortured” (emphasis
18 omitted)). Given the absence of evidence of torture, the agency did not err in
19 finding his claim speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
5
1 Cir. 2005) (“In the absence of solid support in the record . . . fear is speculative at
2 best.”).
3 For the foregoing reasons, the petition for review is DENIED. All pending
4 motions and applications are DENIED and stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
6