Rodas Rosales v. Barr ( 2020 )

17-2536 (L)
Rodas Rosales v. Barr
BIA
Weisel, IJ
A202 126 402/403
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 15th day of December, two thousand twenty.
PRESENT:
JON O. NEWMAN,
PIERRE N. LEVAL,
MICHAEL H. PARK,
Circuit Judges.*
_____________________________________
GERSON ELISEO RODAS ROSALES,
M.R.G.,
Petitioners,
v. 17-2536 (L);
18-1088 (Con)
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
* Circuit Judge Peter W. Hall, originally a member of the panel,
is currently unavailable. Circuit Judge Jon O. Newman has
replaced Judge Hall on the panel for this matter. See 2d Cir.
IOP E(b).
FOR PETITIONERS: Andrea Sáenz, Brooklyn Defender
Services, Brooklyn, NY.
Nancy Morawetz, Jessica Swensen,
Supervising Attorneys; Devika M.
Balaram; Kevin Siegel, Student
Interns, Washington Square Legal
Services, Inc., New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Shelley R. Goad,
Assistant Director; Carmel A.
Morgan, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 DENIED.
Petitioners Gerson Eliseo Rodas Rosales and M.R.G.,
natives and citizens of El Salvador, seek review of two BIA
decisions: (1) a July 2017, decision affirming a November 2016,
decision of an Immigration Judge (“IJ”) denying Rodas
Rosales’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”), and
(2) a March 2018 decision denying a motion to reopen. In re
Gerson Eliseo Rodas Rosales and M.R.G., No. A 202 126 402/403
(B.I.A. July 31, 2017), aff’g Nos. A 202 126 402/403 (Immig.
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Ct. N.Y. City Nov. 16, 2016); In re Gerson Eliseo Rodas
Rosales and M.R.G., Nos. A 202 126 402/403 (B.I.A. Mar. 22,
2018). We assume the parties’ familiarity with the
underlying facts and procedural history.
I. Lead Case
Under the circumstances, we have reviewed the IJ’s
decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
agency’s legal conclusions de novo and its factual findings
under the substantial evidence standard. See Y.C. v. Holder,
741 F.3d 325, 332 (2d Cir. 2013).
A. Asylum and Withholding of Removal
For asylum and withholding of removal, an “applicant must
establish that race, religion, nationality, membership in a
particular social group, or political opinion was or will be
at least one central reason for” the claimed persecution. 8
U.S.C. §§ 1158(b)(1)(B)(i) (asylum), 1231(b)(3)(A)
(withholding); see also Matter of C-T-L, 25 I. & N. Dec. 341,
346 (BIA 2010) (holding that the “one central reason” standard
also applies to withholding of removal). To constitute a
particular social group, a group must be “(1) composed of
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members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct
within the society in question.” Matter of M-E-V-G-, 26 I.
& N. Dec. 227, 237 (BIA 2014); see also Paloka v. Holder, 762
F.3d 191, 195–97 (2d Cir. 2014) (deferring to BIA’s particular
social group requirements). “To be socially distinct, a
group . . . must be perceived as a group by society.” Matter
of M-E-V-G-, 26 I. & N. Dec. at 240.
1. Security Guards
The agency did not err in determining that Rodas
Rosales’s proposed social group of security guards was not
cognizable. Rodas Rosales has waived any challenge to the
agency’s social distinction determination by failing to
address it in his opening brief. See Norton v. Sam’s Club,
145 F.3d 114, 117 (2d Cir. 1998).
Additionally, the agency reasonably determined that
employment as a security guard was not an immutable
characteristic. An “immutable characteristic” is one that
members of the group “either cannot change, or should not be
required to change because it is fundamental to their
individual identities or consciences.” Ucelo-Gomez v.
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Mukasey, 509 F.3d 70, 72–73 (2d Cir. 2007) (internal quotation
marks omitted). The BIA has held that employment generally
is not an immutable characteristic and that “the
internationally accepted concept of a refugee simply does not
guarantee an individual a right to work in the job of his
choice.” Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA
1985), overruled in part on other grounds by Matter of
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Rodas Rosales
does not explain why his employment as a security guard is a
characteristic that he “cannot . . . or should not be
required to change.” Ucelo-Gomez, 509 F.3d at 73.
Accordingly, the agency did not err in determining that Rodas
Rosales’s proposed social group of security guards was not
cognizable and thus that his past harm was not persecution on
account of a protected ground as required for asylum and
withholding of removal. See Matter of M-E-V-G-, 26 I. & N.
Dec. at 237. Because the lack of a cognizable social group
is dispositive of this claim of past harm, we do not reach
whether Rodas Rosales’s status as a security guard was “one
central reason” for the harm he suffered. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
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and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”).
2. Former Security Guards
Rodas Rosales argues that the IJ overlooked his proposed
social group of former security guards and that the BIA then
engaged in impermissible factfinding by addressing this claim
on appeal. We find no error. The BIA reviews an IJ’s factual
findings for clear error and reviews de novo “questions of
law, discretion, and judgment and all other issues in appeals
from [IJ] decisions.” 8 C.F.R. § 1003.1(d)(3)(i), (ii).
“Except for taking administrative notice of commonly known
facts . . . or the contents of official documents, the Board
will not engage in factfinding in the course of deciding
appeals.” 8 C.F.R. § 1003.1(d)(3)(iv).
Although the BIA may not make findings of fact in the
first instance, the BIA was permitted to evaluate the record
to determine whether the IJ overlooked a viable claim. See
Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010) (“[I]f
incomplete findings of fact are entered by an IJ and the BIA
cannot affirm . . . on the basis that he or she decided the
case and if the dispositive issue is [not] sufficiently clear,
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[the] BIA has said it will remand to the IJ for further fact-
finding.” (internal quotation marks omitted)); see 8 C.F.R.
§ 1003.1(d)(3)(iv) (“A party asserting that the Board cannot
properly resolve an appeal without further factfinding must
file a motion for remand. If further factfinding is needed
in a particular case, the Board may remand the proceeding to
the [IJ] . . . .”). The BIA reasonably determined that there
was not a sufficient basis for remand for factfinding on a
proposed social group of former security guards.
In closing, Rodas Rosales’s counsel stated that Rodas
Rosales would face persecution based on his former employment
as a security guard. But the statements of counsel are not
evidence. See INS v. Phinpathya, 464 U.S. 183, 188 n.6
(1984). Rodas Rosales did not testify that gang members
would harm him in the future because he was a former security
guard and his testimony reflects that gangs target security
guards because of their current employment, i.e., for their
weapons, because they are protecting a place that gangs want
to enter, or because they interfere with the gangs’
extortion activities. And there was no country conditions
evidence regarding the targeting of former security guards or
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that Salvadoran society perceives former security guards as
a group. Accordingly, the BIA did not err in declining to
remand. See 8 C.F.R. § 1003.1(d)(3)(iv).
B. CAT
An applicant for CAT relief has the burden to show that
“it is more likely than not” that he will be tortured, but he
need not show any connection to a protected ground. See 8
C.F.R. § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161,
168 (2d Cir. 2004). To constitute torture under the CAT, the
likely harm must be “inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1). “Acquiescence of a public official requires
that the public official, prior to the activity constituting
torture, have awareness of such activity and thereafter
breach his or her legal responsibility to intervene to prevent
such activity.” Id. § 1208.18(a)(7). Cognizable
acquiescence “requires only that government officials know of
or remain willfully blind to an act and thereafter breach
their legal responsibility to prevent it.” Khouzam, 361 F.3d
at 171.
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The agency did not err in concluding that Rodas Rosales
failed to show that Salvadoran authorities would more likely
than not acquiesce to his torture by gang members. Because
Rodas Rosales did not report any threats to the police, he
could not establish that the Salvadoran police knew about or
were willfully blind to the gang members’ specific threats.
He asserted that he heard about the police informing the gangs
when people made complaints. He did not have specific
examples or explain how he learned this information;
therefore, although the agency found him credible, it was not
required to accept his conclusions regarding country
conditions. Although there is country conditions evidence
of police corruption and collusion between some police
officers and gang members, Rodas Rosales did not establish
widespread corruption of the police forces by gang members or
that the police would acquiesce specifically to harm that he
might suffer. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130,
144 (2d Cir. 2003) (holding that an applicant for CAT relief
must show a likelihood of torture in “his particular alleged
circumstances”). And he did not provide evidence as to what
steps the police would take if he reported threats from gang
9
members. Accordingly, given the limited evidence of
collusion between gang members and the police and the lack of
particularized evidence that government officials would
acquiesce to his torture, the evidence does not compel a
finding that Rodas Rosales will more likely than not be
tortured by gangs with the acquiescence of the Salvadoran
authorities. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.”).
Additionally, although the IJ’s reliance on Matter of S-
V- was misplaced because torture by entities a government is
unable to control may be sufficient to state a CAT claim where
there is evidence that the harm is likely to occur and the
government is or should be aware of that likely harm, see
Khouzam, 361 F.3d at 171, remand would be futile because Rodas
Rosales presented minimal evidence of torture in his
particular circumstance or that that the government would
remain willfully blind to his torture by gang members. See
Mu-Xing Wang, 320 F.3d at 144.
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II. Consolidated Case – Motion to Reopen
We review the BIA’s denial of a motion to reopen for
abuse of discretion but review factual findings regarding
country conditions for substantial evidence. See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). “[A]
motion to reopen shall state the new facts that will
be proven at a hearing to be held if the motion is granted,
and shall be supported by affidavits or other evidentiary
material.” 8 U.S.C. § 1229a(c)(7)(B); see 8 C.F.R.
§ 1003.2(c)(1). “A motion to reopen proceedings shall not
be granted unless . . . evidence sought to be offered is
material and was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104
(1988).
The BIA did not abuse its discretion by denying Rodas
Rosales’s motion to reopen. First, an expert opinion could
have been obtained and presented at the merits hearing.
Although the expert cites killings of security guards in 2017,
the expert does not explain how this is a significant change
from 2016 and noted that infiltration of gangs into the police
11
and information sharing between gangs and the police
“continued unabated in 2017.” See 8 C.F.R. § 1003.2(c)(1).
Second, although Rodas Rosales presented news articles
and reports that postdated his hearing before the IJ, the
evidence was cumulative of or reinforced country conditions
evidence already in the record. For example, before the IJ,
Rodas Rosales submitted evidence that 60 private security
guards were killed in 2016 and that 90 employees of private
security guards were killed in 2015. Thus, the BIA
reasonably determined that evidence of more killings of
security guards in 2017 was not new or material evidence as
required for remand. Relatedly, the BIA did not apply an
incorrect standard for reopening. See Jian Hui Shao, 546
F.3d at 168 (requiring a movant to, “show a realistic chance
that []he will be able to obtain . . . relief” and requiring
“alien to carry the heavy burden of demonstrating that the
proffered new evidence would likely alter the result in h[is]
case.” (internal quotation marks and citations omitted)).
Moreover, Rodas Rosales did not demonstrate a realistic
chance that he would be eligible for relief because his new
evidence did not remedy the defects in his claim: working as
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a security guard is not an immutable characteristic and his
evidence did not reflect that gangs target former security
guards. The BIA was not required to provide further
explanation regarding specific pieces of evidence. See id.
at 169 (“[W]e do not demand that the BIA expressly parse or
refute on the record each individual argument or piece of
evidence offered by the petitioner.” (internal quotation
marks omitted)); Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
Cir. 2006) (“While the BIA must consider such evidence, it
may do so in summary fashion without a reviewing court
presuming that it has abused its discretion.”).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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