Gonzales-Reyes v. Holder , 570 F. App'x 89 ( 2014 )

13-2296
Gonzales-Reyes v. Holder
BIA
Morace, IJ
A097 531 940
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of June, two thousand fourteen.
5
6 PRESENT:
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11
12 _____________________________________
13
14 IVAN ROBERTO GONZALES-REYES,
15 Petitioner,
16
17 v. 13-2296
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Usman B. Ahmad, Long Island City,
25 New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Anthony P. Nicastro, Senior
29 Litigation Counsel; Joanna L.
30 Watson, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED in part and DISMISSED in part.
9 Ivan Roberto Gonzales-Reyes, a native and citizen of
10 Guatemala, seeks review of a May 13, 2013, decision of the
11 BIA affirming the May 29, 2012, decision of Immigration
12 Judge (“IJ”) Philip L. Morace, denying him asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Ivan Roberto Gonzales-Reyes,
15 No. A097 531 940 (B.I.A. May 13, 2013), aff’g No. A097 531
16 940 (Immig. Ct. N.Y. City May 29, 2012). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Because Gonzales-Reyes is removable for having
20 committed a controlled substance offense, we have
21 jurisdiction to review only “constitutional claims or
22 questions of law raised [in his] petition for review.” See
23 8 U.S.C. § 1252(a)(2)(C), (D); see also Maiwand v. Gonzales,
24 501 F.3d 101, 104 (2d Cir. 2007). To determine whether we
2
1 have jurisdiction, we must “study the arguments
2 asserted . . . [and] determine, regardless of the rhetoric
3 employed in the petition, whether [the petition] merely
4 quarrels over the correctness of the factual findings or
5 justification for the discretionary choices.” Maiwand, 501
6 F.3d at 104 (citing Xiao Ji Chen v. Gonzalez, 471 F.3d 315,
7 329) (alteration in original). If the petitioner contests
8 only the IJ’s factual findings or discretionary
9 determinations, we lack jurisdiction to review the petition.
10 Id. However, we maintain jurisdiction to review the
11 application of law to fact. Id. (citing Gui Yin Liu v. INS,
12 475 F.3d 135, 137 (2d Cir. 2007)). For example, a question
13 of law may arise where the petitioner alleges that the
14 agency’s “fact-finding . . . is flawed by an error of law”
15 or “where a discretionary decision is argued to be an abuse
16 of discretion because it was made without rational
17 justification or based on a legally erroneous standard.”
18 Xiao Ji Chen, 471 F.3d at 329.
19 In order to establish eligibility for asylum and
20 withholding of removal, a petitioner “must establish that
21 race, religion, nationality, membership in a particular
22 social group, or political opinion was or will be at least
3
1 one central reason for persecuting the applicant.” 8 U.S.C.
2 § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); see also
3 Matter of J-B-N- and S-M-, 24 I. & N. Dec. 208 (BIA 2007);
4 Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010). To
5 constitute a particular social group under the Immigration
6 and Naturalization Act (“INA”), a group must be:
7 “(1) composed of members who share a common immutable
8 characteristic, (2) defined with particularity, and
9 (3) socially distinct within the society in question.”
10 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014); see
11 also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir.
12 2007).
13 Here, Gonzales-Reyes first argues that the agency
14 committed legal error by overlooking two of his legal
15 theories supporting his claim of membership in a proposed
16 social group. Gonzales-Reyes contends that his familial
17 relationships tie him to two distinct social groups that are
18 subject to persecution in Guatemala: (1) “Guatemalans whose
19 family members have defied, and owe money to, MS-13 Gang
20 Members;” and, (2) “Guatemalans who have U.S. citizen
21 families.” Despite Gonzales-Reyes’s suggestion to the
22 contrary, the agency considered and rejected each of these
4
1 proposed groups. In his oral opinion, the IJ noted that
2 Guatemalan gang members may be aware of Gonzales-Reyes’s
3 connections to the United States, as well as his relatives’
4 resistance to gang intimidation, but ultimately rejected
5 each of these proposed bases for finding that Gonzales-Reyes
6 belonged to a particular social group. Thus, the agency did
7 not commit legal error by denying his asylum and withholding
8 claims on those grounds.
9 Gonzales-Reyes next contends that the agency erred in
10 concluding that his proposed particular social groups are
11 not cognizable under the INA.1 To the extent that he argues
12 that the agency committed legal error, his petition must be
13 denied. Upon reviewing the record, the agency concluded
14 that Gonzales-Reyes failed to present sufficient evidence
15 that members of Guatemalan society viewed any of his
16 proposed groups as distinct or that those groups are at a
17 greater risk of gang violence than the general population of
18 Guatemala. Thus, we cannot say that the agency’s
19 discretionary decision to deny Gonzalez-Reyes’ petition was
20 made without rational justification or based on a legally
1
In addition to proposed social groups based on his familial
ties, Gonzales-Reyes also contends that he will be subject to
persecution as a Guatemalan man who was sought for recruitment by
the MS-13 gang and refused such recruitment.
5
1 erroneous standard. See Ucelo-Gomez, 509 F.3d at 73 (“When
2 the harm visited upon members of a group is attributable to
3 the incentives presented to ordinary criminals rather than
4 to persecution, the scales are tipped away from considering
5 those people a ‘particular social group’ within the meaning
6 of the INA.”); see also Matter of W-G-R-, 26 I. & N. Dec.
7 208, 217 (BIA 2014) (“To have the ‘social distinction’
8 necessary to establish a particular social group, there must
9 be evidence showing that society in general perceives,
10 considers, or recognizes persons sharing the particular
11 characteristic to be a group.”). For these reasons,
12 Gonzales-Reyes’s petition for review of the agency’s denial
13 of his asylum and withholding claims must be denied.
14 Finally, we lack jurisdiction to consider Gonzales-
15 Reyes’s purely factual challenge to the agency’s denial of
16 CAT relief. See 8 U.S.C. § 1252(a)(2)(C), (D); see also
17 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
18 Cir. 2006).
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1 For the foregoing reasons, the petition for review is
2 DENIED in part and DISMISSED in part. As we have completed
3 our review, the pending motion for a stay of removal in this
4 petition is DENIED as moot.
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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