Recinos Villanueva v. Holder , 474 F. App'x 28 ( 2012 )

11-2775-ag
Recinos Villanueva v. Holder
BIA
Verrillo, IJ
A094 475 062
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6th day of April, two thousand twelve.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
MARVIN NOE RECINOS VILLANUEVA, AKA
MARVIN NOE RECINOS,
Petitioner,
v. 11-2775-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Glenn T. Terk, Wethersfield,
Connecticut.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Holly M. Smith, Senior
Litigation Counsel; Joseph D. Hardy,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DISMISSED in part and DENIED in part.
Petitioner Marvin Noe Recinos Villanueva, a native and
citizen of El Salvador, seeks review of a June 14, 2011
order of the BIA, affirming the April 1, 2009 decision of
Immigration Judge (“IJ”) Philip Verrillo, pretermitting his
application for asylum and denying his application for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Marvin Noe Recinos
Villanueva, No. A094 475 062 (B.I.A. June 14, 2011), aff’g
No. A094 475 062 (Immig. Ct. Hartford, Conn. Apr. 1, 2009).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well-
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established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. Exhaustion
Under 8 U.S.C. § 1252(d)(1), we “may review a final
order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.”
This jurisdictional rule is absolute with respect to the
requirement that on appeal to the BIA, the alien must raise
each category of relief subsequently raised in this Court.
See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006)
(citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.
2003)). Because Recinos Villanueva failed to challenge the
IJ’s denial of asylum and CAT relief on appeal to the BIA,
we lack jurisdiction to consider any challenges to the
denial of these forms of relief. 8 U.S.C. § 1252(d)(1).
II. Waiver
Although the government contends that Recinos
Villanueva waived any challenge to the agency’s denial of
withholding of removal by failing to raise the issue in his
brief to this Court, see Yueqing Zhang v. Gonzales, 426 F.3d
540, 541 n.1, 545 n.7 (2d Cir. 2005), the agency’s
withholding denial is sufficiently contested to preserve the
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issue for our review. Recinos Villanueva’s brief sets forth
the law applicable to withholding of removal and clearly
indicates that he is challenging the agency’s nexus finding
with respect to his familial social group. However, as
discussed below, the agency did not err in finding that
Recinos Villanueva failed to establish a nexus between the
harm that his family suffered and he feared in El Salvador
and a protected ground.
III. Nexus
An applicant seeking withholding of removal must
establish that his past persecution or fear of future
persecution is on account of his race, religion,
nationality, political opinion, or membership in a
particular social group. See 8 U.S.C. § 1101(a)(42). We
have held that “[t]he protected ground need not be the sole
motive” and that an individual persecuted for multiple
reasons is a refugee as long as one of those reasons is a
protected ground. Aliyev v. Mukasey, 549 F.3d 111, 116 (2d
Cir. 2008) (internal quotation marks omitted).
While the agency noted that Recinos Villanueva’s family
could constitute a social group under the Immigration and
Nationality Act (“INA”), see Vumi v. Gonzales, 502 F.3d 150,
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155 (2d Cir. 2007), it reasonably determined that the harm
they suffered and Recinos Villanueva feared in El Salvador
was not based even in part on their familial membership.
See 8 U.S.C. § 1101(a)(42). Indeed, Recinos Villanueva does
not contest the agency’s finding that gang violence is
widespread in El Salvador, and he testified before the IJ
that he did not know why his family members were targeted by
gangs. Under such circumstances, the agency did not err in
finding that Recinos Villanueva failed to establish that the
harm his family suffered and he fears in El Salvador was on
account of a protected ground. See Tao Jiang v. Gonzales,
500 F.3d 137, 142 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DISMISSED in part, as we lack jurisdiction to review Recinos
Villanueva’s unexhausted challenges to the agency’s denial
of asylum and CAT relief, and DENIED in part, as the agency
reasonably determined that Recinos Villanueva failed to
establish a nexus between the harm his family suffered and
he feared in El Salvador and a protected ground. As we have
completed our review, any stay of removal that the Court
previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
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this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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