Loja-Moreno v. Barr ( 2020 )

18-3518
Loja-Moreno v. Barr
BIA
IJ Verrillo
A205 497 521
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 15th day of December, two thousand twenty.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 JOSEPH F. BIANCO,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 JUAN LEONARDO LOJA-MORENO,
14 Petitioner,
15
16 v. 18-3518
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory Osakwe, Esq., Hartford,
24 CT.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General;
28 Matthew B. George, Senior
1 Litigation Counsel; Sherry D.
2 Soanes, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner, Juan Leonardo Loja-Moreno, a native and
11 citizen of Ecuador, seeks review of an October 29, 2018,
12 decision of the BIA affirming a November 27, 2017, decision
13 of an Immigration Judge (“IJ”) denying asylum, withholding of
14 removal, and relief under the Convention Against Torture
15 (“CAT”). In re Juan Leonardo Loja-Moreno, No. A205 497 521
16 (B.I.A. Oct. 29, 2018), aff’g No. A205 497 521 (Immig. Ct.
17 Hartford Nov. 27, 2017). We assume the parties’ familiarity
18 with the underlying facts and procedural history.
19 We have reviewed both the IJ’s and the BIA’s decisions
20 “for the sake of completeness.” Wangchuck v. Dep’t of
21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
22 applicable standards of review are well established. See
23 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195
24 (2d Cir. 2014) (reviewing de novo whether a group constitutes
2
1 a particular social group under the Immigration and
2 Nationality Act); Edimo-Doualla v. Gonzales, 464 F.3d 276,
3 281-83 (2d Cir. 2006) (applying substantial evidence standard
4 to nexus determination); Yanqin Weng v. Holder, 562 F.3d 510,
5 513, 516 (2d Cir. 2009) (applying substantial evidence
6 standard to CAT claim).
7 To obtain asylum or withholding of removal, an applicant
8 must establish past persecution or a fear of future
9 persecution on account of a protected ground. See 8 C.F.R.
10 §§ 1208.13(b), 1208.16(b)(1), (2). Loja-Moreno asserts past
11 harm and a fear of future harm on account of his membership
12 in a particular social group. To demonstrate eligibility on
13 this basis, an applicant “must establish both that the group
14 itself was cognizable, . . . and that the alleged persecutors
15 targeted [him] on account of h[is] membership in that group.”
16 Paloka, 762 F.3d at 195 (internal quotation marks and citation
17 omitted).
18 The agency reasonably denied asylum and withholding of
19 removal because (1) Loja-Moreno’s proposed group was not
20 cognizable, and (2) he failed to demonstrate the requisite
21 nexus between the harm he suffered or fears and his membership
3
1 in his proposed group.
2 First, as to cognizability, a particular social group
3 must be “(1) composed of members who share a common immutable
4 characteristic, (2) defined with particularity, and
5 (3) socially distinct within the society in question.”
6 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014); see
7 also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir.
8 2007). The agency reasonably found that Loja-Moreno’s
9 proposed particular social group—“Ecuadoran nationals who
10 reside in the [United States] and who are perceived to have
11 money, and who the Ecuadoran government is unable to protect
12 due to those American ties”—was not cognizable because it did
13 not meet the particularity and social distinction
14 requirements. As to particularity, Loja-Moreno’s group does
15 not provide a clear benchmark for its membership because the
16 perception of wealth is “too subjective, inchoate, and
17 variable to provide the sole basis for membership in a
18 particular social group.” Ucelo-Gomez, 509 F.3d at 73
19 (agreeing with BIA’s conclusion that proposed group of
20 wealthy Guatemalans was not sufficiently particular). As to
21 social distinction, Loja-Moreno argues only that Ecuadorans
4
1 can identify members of his group by body language, speech,
2 and clothing. But the question is not whether someone will
3 be able to identify him, it “is whether society as a whole
4 views a group as socially distinct.” Paloka, 762 F.3d at
5 196; see also Matter of M-E-V-G-, 26 I. & N. Dec. at 240
6 (social group must be “perceived as a group by society” and
7 members need not be identifiable by sight). Where, as here,
8 “the harm visited upon members of a group is attributable to
9 the incentives presented to ordinary criminals rather than to
10 persecution, the scales are tipped away from considering
11 those people a ‘particular social group.’” Ucelo-Gomez, 509
12 F.3d at 73.
13 Second, substantial evidence supports the agency’s
14 finding that Loja-Moreno did not establish a nexus between
15 the harm he suffered or fears and his membership in his
16 proposed group because the record reflects that his
17 persecutors were or would be motivated by personal or economic
18 interests. See Melgar de Torres v. Reno, 191 F.3d 307, 313–
19 14 (2d Cir. 1999) (“general crime conditions are not a stated
20 ground” for asylum). Loja-Moreno testified that gang members
21 targeted him in 2000 because they believed he had money from
5
1 his brother in the United States and an individual who
2 believed Loja-Moreno owed him money had threatened him and
3 his family. Loja-Moreno has not established that these
4 persecutors were or would be motivated by any reason other
5 than ordinary criminal or pecuniary interests. See id.;
6 Ucelo-Gomez, 509 F.3d at 74 (rejecting claim based on
7 perceived wealth and political opinion where putative
8 persecutors had no “motive other than increasing their own
9 wealth at the expense of the petitioners.” (internal
10 quotation marks omitted)). As Loja-Moreno failed to
11 establish a cognizable particular social group or that the
12 harm he suffered or feared had a nexus to his proposed group,
13 the agency did not err in denying asylum and withholding of
14 removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
15 Lastly, substantial evidence supports the agency’s
16 denial of protection under the CAT. See Yanqin Weng, 562
17 F.3d at 513, 516. Loja-Moreno had the burden to show he was
18 “more likely than not to be tortured” 8 C.F.R. § 1208.16(c),
19 and “that government officials [would] know of or remain
20 willfully blind to an act of torture,” Khouzam v. Ashcroft,
21 361 F.3d 161, 171 (2d Cir. 2004). The agency properly
6
1 considered past torture and country conditions. 8 C.F.R.
2 § 1208.16(c)(3). Loja-Moreno did not establish past torture
3 because he alleged only that he and his family were threatened
4 and harassed by the individual who had loaned him money and
5 that a gang member hit him on one occasion. See id.
6 § 1208.18(a)(2) (“Torture is an extreme form of cruel and
7 inhuman treatment and does not include lesser forms of cruel,
8 inhuman or degrading treatment or punishment that do not
9 amount to torture.”); Kyaw Zwar Tun v. U.S. INS, 445 F.3d
10 554, 567 (2d Cir. 2006) (“[T]orture requires proof of
11 something more severe than the kind of treatment that would
12 suffice to prove persecution.”). And his evidence of poor
13 country conditions, without more, was insufficient to
14 demonstrate that he would likely be tortured by or with the
15 acquiescence of government officials. See Mu-Xing Wang v.
16 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (finding country
17 conditions evidence reflecting some torture insufficient to
18 establish “someone in [Petitioner’s] particular alleged
19 circumstances is more likely than not to be tortured”); Mu
20 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d
21 Cir. 2005) (requiring “particularized evidence” beyond
7
1 general country conditions to support a CAT claim).
2 For the foregoing reasons, the petition for review is
3 DENIED. All pending motions and applications are DENIED and
4 stays VACATED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
8