Acuna-De Garcia v. Garland ( 2023 )

20-3135
Acuna-De Garcia v. Garland
BIA
Christensen, IJ
A208 883 949/950/951
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of April, two thousand twenty-two.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 RAYMOND J. LOHIER, JR.,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 AURELIA ACUNA-DE GARCIA, M. S.
14 G-A, E. L. G-A,
15 Petitioners,
16
17 v. 20-3135
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Carolyn M. Corrado, Esq., Jadeja
25 & Cimone, LLP, Hempstead, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Keith I.
1 McManus, Assistant Director; Nelle
2 M. Seymour, Trial Attorney, Office
3 of 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 Petitioners Aurelia Acuna-De Garcia, M.S. G-A and E.L.
11 G-A, natives and citizens of El Salvador, seek review of an
12 August 24, 2020 decision of the BIA affirming an August 21,
13 2018 decision of an immigration judge (“IJ”) denying asylum,
14 withholding of removal, and protection under the Convention
15 Against Torture (“CAT”). 1 In re Aurelia Acuna-De Garcia, et
16 al., Nos. A208 883 949/950/951 (B.I.A. Aug. 24, 2020), aff’g
17 Nos. A208 883 949/950/951 (Immig. Ct. N.Y. City Aug. 21,
18 2018). We assume the parties’ familiarity with the
19 underlying facts and procedural history.
20 We have reviewed the IJ’s and the BIA’s decisions “for
21 the sake of completeness.” Wangchuck v. Dep’t of Homeland
1 We refer primarily to Aurelia Acuna-De Garcia, as her two minor
daughters were derivative beneficiaries on her application and
also filed their own separate asylum applications.
2
1 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review factual
2 findings for substantial evidence and questions of law and
3 application of law to fact de novo. See Yanqin Weng v.
4 Holder, 562 F.3d 510, 513 (2d Cir. 2009); Edimo-Doualla v.
5 Gonzales, 464 F.3d 276, 282–83 (2d Cir. 2006) (applying
6 substantial evidence standard to nexus determination);
7 Nasrallah v. Barr, 140 S. Ct. 1683, 1690–94 (2020) (applying
8 substantial evidence standard to factual findings underlying
9 CAT determination). “[T]he administrative findings of fact
10 are conclusive unless any reasonable adjudicator would be
11 compelled to conclude to the contrary.” 8 U.S.C.
12 § 1252(b)(4)(B).
13 To obtain asylum or withholding of removal, an applicant
14 must establish past persecution or a fear of future
15 persecution and “that race, religion, nationality, membership
16 in a particular social group, or political opinion was or
17 will be at least one central reason for persecuting the
18 applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id.19 § 1231(b)(3)(A); Quituizaca v. Garland, 52 F.4th 103, 107-08
20 (2d Cir. 2022). “To succeed on a particular social group
21 claim, the applicant must establish both that the group itself
3
1 was cognizable and that the alleged persecutors targeted the
2 applicant ‘on account of’ her membership in that group.”
3 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014)(citations
4 omitted). The applicant must provide “some evidence” of the
5 persecutor’s motives, “direct or circumstantial.” INS v.
6 Elias-Zacarias, 502 U.S. 478, 483 (1992).
7 The agency did not err in finding that Acuna-De Garcia
8 did not establish the requisite nexus. “[N]exus is not
9 established simply because a particular social group of
10 family members exists and the family members experience
11 harm.” Matter of L-E-A-, 27 I. & N. Dec. 40, 45 (B.I.A.
12 2017). Acuna-De Garcia testified that she believed she was
13 targeted for extortion in 2015 because she was building a
14 house on the same plot of land that her father was building
15 on when her parents were killed in 1994. She suspected that
16 the assailants wanted the land or were somehow otherwise tied
17 to her parents’ murders, or that they targeted her because
18 her husband was in the United States making money. These
19 reasons are insufficient to establish the requisite nexus
20 because they indicate that the individuals who extorted her
21 were motivated by financial gain. See Ucelo-Gomez v.
4
1 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)(“When the harm visited
2 upon members of a group is attributable to the incentives
3 presented to ordinary criminals rather than to persecution,
4 the scales are tipped away from considering those people a
5 ‘particular social group’ within the meaning of the INA.”);
6 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
7 (finding that “act[s] of random violence” do not constitute
8 persecution); see also Jian Hui Shao v. Mukasey, 546 F.3d
9 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner bears the
10 burden of proof, his failure to adduce evidence can itself
11 constitute the ‘substantial evidence’ necessary to support
12 the agency’s challenged decision.”).
13 The agency’s denial of CAT protection is also supported
14 by substantial evidence. Acuna-De Garcia had the burden to
15 show that she is “more likely than not to be tortured in the
16 country of removal.” 8 C.F.R. § 1208.16(c)(4). In
17 determining whether torture is more likely than not, the
18 agency is required to consider any past torture and country
19 conditions. 8 C.F.R. § 1208.16(c)(3).
20 Acuna-De Garcia never testified to any physical harm or
21 past torture. See 8 C.F.R. § 1208.18(a)(2) (“Torture is an
5
1 extreme form of cruel and inhuman treatment and does not
2 include lesser forms of cruel, inhuman or degrading treatment
3 or punishment that do not amount to torture.”); Kyaw Zwar Tun
4 v. U.S. INS, 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture
5 requires proof of something more severe than the kind of
6 treatment that would suffice to prove persecution.”). She
7 also did not allege that anyone in her family had been
8 physically harmed since her parents’ murders in 1994. And
9 her country conditions evidence documented general crime and
10 gang violence, not that someone in her particular
11 circumstances would be singled out for torture. See Mu Xiang
12 Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005)
13 (requiring “particularized evidence” beyond general country
14 conditions to support a CAT claim); Mu-Xing Wang v. Ashcroft,
15 320 F.3d 130, 144 (2d Cir. 2003) (requiring applicant to
16 “establish[] that someone in his particular alleged
17 circumstances is more likely than not to be tortured if
18 imprisoned in China” (emphasis omitted)).
19
20
6
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7