Villalta Rios v. Garland ( 2023 )

20-2240
Villalta Rios v. Garland
BIA
Mulligan, IJ
A078 219 112
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 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 Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 9th day of March, two thousand twenty-three.
4
5 PRESENT:
6 GUIDO CALABRESI,
7 MICHAEL H. PARK,
8 WILLIAM J. NARDINI,
9 Circuit Judges.
10 _____________________________________
11
12 Marvin Moises Villalta Rios, AKA Marvin Rios,
13 AKA Marvin Moises Villalta Escobar,
14
15 Petitioner,
16
17 v.
18 20-2240
19 Merrick B. Garland, United
20 States Attorney General,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Robert A. Cini, Esq., New York, NY.
26
1 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
2 Attorney General; Dawn S. Conrad,
3 Senior Litigation Counsel, Remi Da
4 Rocha-Afodu, Trial Attorney, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
10 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
11 petition for review is DENIED in part and DISMISSED in part.
12 Petitioner Marvin Moises Villalta Rios, a native and citizen of El Salvador, seeks review
13 of a June 23, 2020, decision of the BIA affirming a January 3, 2020, decision of an Immigration
14 Judge (“IJ”) denying his application for withholding of removal and relief under the Convention
15 Against Torture (“CAT”). In re Marvin Moises Villalta Rios, No. A 078 219 112 (B.I.A. June 23,
16 2020), aff’g No. A 078 219 112 (Immigr. Ct. N.Y.C. Jan. 3, 2020). We assume the parties’
17 familiarity with the underlying facts and procedural history.
18 We have reviewed both the IJ’s and the BIA’s opinions. See Wangchuck v. Dep’t of
19 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The standards of review are well established.
20 See 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any
21 reasonable adjudicator would be compelled to conclude to the contrary[.]”); Paloka v. Holder, 762
22 F.3d 191, 195 (2d Cir. 2014) (reviewing factual findings for substantial evidence and questions of
23 law de novo).
24 I. Withholding of Removal
25 Villalta Rios asserted a fear of persecution and torture based on his prior resistance to gang
26 recruitment and his disability, a head injury he suffered in a fall in the United States. To qualify
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1 for withholding of removal, an applicant must show past persecution or that he would “more likely
2 than not” be persecuted, 8 C.F.R. § 1208.16(b)(2), “because of” his “race, religion, nationality,
3 membership in a particular social group, or political opinion,” 8 U.S.C. § 1231(b)(3)(A). To
4 constitute persecution, “the conduct at issue must be attributable to the government, whether
5 directly because engaged in by government officials, or indirectly because engaged in by private
6 persons whom the government is unable or unwilling to control.” Scarlett v. Barr, 957 F.3d 316,
7 328 (2d Cir. 2020) (quotation marks omitted). Villalta Rios had the burden of showing that his
8 past harm and feared future harm by gang members was or would be on account of a political
9 opinion or membership in a cognizable group of disabled people. The agency did not err in
10 denying withholding of removal on both grounds.
11 A. Political Opinion
12 First, “[t]he applicant must . . . show, through direct or circumstantial evidence, that the
13 persecutor’s motive to persecute arises from the applicant’s political belief,” rather than merely
14 from the persecutor’s own opinion. Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). “The
15 persecution may also be on account of an opinion imputed to the applicant by the persecutor,
16 regardless of whether or not this imputation is accurate.” Hernandez-Chacon v. Barr, 948 F.3d
17 94, 102 (2d Cir. 2020). “[O]pposition to criminal elements such as gangs, even when such
18 opposition incurs the enmity of these elements, does not thereby become political opposition
19 simply by virtue of the gang’s reaction.” Zelaya-Moreno v. Wilkinson, 989 F.3d 190, 201 (2d Cir.
20 2021).
21 Here, Villalta Rios testified that in the late 1990s, before he left El Salvador, gang members
22 beat and cut him because he refused to join them, but he never reported them to the police. He
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1 claims that if he returned, gangs would kill him because “they never forget” and that gang members
2 extort “rent” from people by threatening to kill them. Based on these facts, the agency did not err
3 in concluding that Villalta Rios failed to show a nexus between persecution and a political opinion,
4 actual or imputed. He did not express any opinion to the gangs, provide evidence that he had
5 expressed an opinion publicly or had reported the gangs to the police, or allege that the gangs knew
6 of any political opinion he held.
7 B. Particular Social Group
8 To constitute a particular social group, the group must be “(1) composed of members who
9 share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct
10 within the society in question.” Paloka, 762 F.3d at 196 (quotation marks omitted). Particularity
11 overlaps with social distinction because particularity “require[s] inquiry into whether the group
12 can be described in sufficiently distinct terms that it would be recognized, in the society in
13 question, as a discrete class of persons.” Ordonez Azmen v. Barr, 965 F.3d 128, 135 (2d Cir.
14 2020) (quotation marks omitted).
15 The government argues that Villalta Rios failed to meet his burden of showing “the exact
16 delineation of any particular social group(s) to which []he claims to belong” because he failed to
17 limit his group by any mental or physical disability, the severity of the disability, or its cause.
18 Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (B.I.A. 2018). We need not reach that
19 question because, even if Villalta Rios’s proposed group were cognizable, he failed to present
20 evidence that he would be “a target of persecution primarily on account of his status as a member
21 of the group.” Koudriachova v. Gonzales, 490 F.3d 255, 263 (2d Cir. 2007). Villalta Rios’s
22 evidence does not document persecution of disabled people in El Salvador and, in fact, reflects
4
1 that El Salvador passed laws in 2001 protecting the rights of disabled people to work and to go to
2 school. Given the lack of evidence that in El Salvador disabled people are generally targets of
3 persecution, the record supports the agency’s conclusion that Villalta Rios’s claims fail. See Shao
4 v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner bears the burden of proof,
5 his failure to adduce evidence can itself constitute the ‘substantial evidence’ necessary to support
6 the agency’s challenged decision.”).
7 II. CAT Claim
8 We do not reach the merits of Villalta Rios’s CAT claim. The BIA concluded that he
9 waived the CAT claim by failing to argue it on appeal, and he does not challenge that determination
10 here apart from a single sentence stating that the BIA “incredulously dismissed” the CAT claim
11 based on waiver. Pet’r Br. at 21; Zhang, 426 F.3d at 545 n.7 (deeming claim abandoned where
12 brief addressed it in “only a single conclusory sentence”). Moreover, his brief to the BIA did not
13 argue the government acquiescence issue he raises here. See Zhong v. U.S. Dep’t of Justice, 480
14 F.3d 104, 123 (2d Cir. 2007) (observing that “usually . . . issues not raised to the BIA will not be
15 examined by the reviewing court”). Because we lack jurisdiction to review a CAT claim that was
16 not raised before the BIA, Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006), we dismiss his
17 petition for review with respect to that claim.
18 For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in
19 part. All pending motions and applications are DENIED and stays VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk of Court
22
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