Saravia v. Holder ( 2009 )

08-3978-ag
Saravia v. Holder
BIA
Straus, IJ
A 200 127 793
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7 th day of December, two thousand nine.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 ______________________________________
12
13 GERMAN SARAVIA,
14 Petitioner,
15
16 v. 08-3978-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, *
20 Respondent.
21 ______________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Hamza Ma’ayergi, Stamford,
2 Connecticut.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General; Anthony P. Nicastro, Senior
6 Litigation Counsel; Drew C.
7 Brinkman, Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 German Saravia, a native and citizen of El Salvador,
17 seeks review of a July 15, 2008 order of the BIA affirming
18 the August 27, 2007 decision of Immigration Judge (“IJ”)
19 Michael W. Straus, which denied Saravia’s application for
20 asylum, withholding of removal, and relief under the
21 Convention Against Torture (“CAT”). In re German Francisco
22 Saravia, No. A 200 127 793 (B.I.A. July 15, 2008), aff’g No.
23 A 200 127 793 (Immig. Ct. Hartford, CT Aug. 27, 2007). We
24 assume the parties’ familiarity with the underlying facts
25 and procedural history in this case.
26 When the BIA adopts the decision of the IJ and
27 supplements the IJ’s decision, we review the decision of the
2
1 IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
2 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
3 factual findings under the substantial evidence standard.
4 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d
5 281, 289 (2d Cir. 2007). We review de novo questions of law
6 and the application of law to undisputed fact. See
7 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
8 The agency did not err in denying Saravia’s application
9 for asylum. In order to establish eligibility for asylum
10 based on membership in a particular social group, the alien
11 must establish both that the group itself was cognizable
12 (i.e. defined with sufficient particularity and socially
13 visible), see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d
14 Cir. 2007), and that the alleged persecutors targeted the
15 alien “on account of” his membership in that group, see
16 8 U.S.C. § 1101(a)(42). Moreover, the applicant’s status as
17 a member of that group, and not some other factor, must be a
18 central reason why that individual is targeted for
19 persecution. See 8 U.S.C. § 1158(b)(1)(B). Here, the BIA
20 apparently assumed that Saravia’s proposed group, his
21 family, was cognizable. See Gonzales v. Thomas, 547 U.S.
22 183, 184-87 (2006) (remanding to the agency to determine
3
1 whether membership in a family may constitute a particular
2 social group for purposes of asylum eligibility). Instead,
3 it found that Saravia failed to establish that he would be
4 persecuted “on account of” his family ties. That finding
5 was not in error.
6 Saravia argues that his brother’s murder “was not just
7 a random act of violence motivated by financial gain” but
8 rather “a direct act of violence taken by the gang based on
9 their envy of the Saravia family since they lived their life
10 by rule of law, refusing to participate in criminal acts.”
11 However, in finding that Saravia failed to establish a nexus
12 to a protected ground, the IJ determined that: (1) the fact
13 that the gang stole Saravia’s brother’s wallet indicated
14 that robbery, not family kinship, was the motivating factor
15 behind the crime; (2) the threats made to Saravia’s family
16 members were due to the gang’s fear of “vengeance” and the
17 perception that Saravia may have money after relocating to
18 the United States; and (3) the gang’s subsequent murder of
19 two other individuals unrelated to Saravia indicated that
20 “the situation faced by [Saravia] is, unfortunately, the
21 same that faces a lot of people in El Salvador, namely, the
22 random violence that goes on in that country.” The BIA made
4
1 similar findings. Because substantial evidence supports the
2 agency’s determination that the harm Saravia feared would
3 not be perpetrated “on account of” his status as a member of
4 his family, it did not err in denying Saravia’s application
5 for asylum. 8 U.S.C. §§ 1158(b)(1)(B); 1252(b)(4)(B).
6 Finally, Saravia waived his claims for withholding of
7 removal and CAT relief by failing to raise those claims in
8 his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
9 n.1, 545 n.7 (2d Cir. 2005).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
22 By:___________________________
5