Bolanos Salazar v. Garland ( 2023 )

19-1822
Bolanos Salazar v. Garland
BIA
Straus, IJ
A208 600 597
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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 25th day of July, two thousand twenty-
4 three.
5
6 PRESENT:
7
8 JOSÉ A. CABRANES,
9 ROSEMARY S. POOLER,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 LUIS ALBERTO BOLANOS SALAZAR,
15
16 Petitioner,
17
18 v. 19-1822
19 NAC
20 MERRICK B. GARLAND, UNITED STATES
21 ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
1 FOR PETITIONER: Gerald R. Nowotny, Latin American Law
2 Center, Canton, CT.
3
4 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General;
5 Mary Jane Candaux, Assistant Director;
6 Stephen Finn, Trial Attorney, Office of
7 Immigration Litigation, United States
8 Department of Justice, Washington, DC.
9
10 UPON DUE CONSIDERATION of this petition for review of a Board of
11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
12 DECREED that the petition for review is DENIED.
13 Petitioner Luis Alberto Bolanos Salazar, a native and citizen of Guatemala,
14 seeks review of a decision of the BIA affirming a decision of an Immigration Judge
15 (“IJ”) denying his application for asylum and withholding of removal.1 In re Luis
16 Alberto Bolanos Salazar, No. A208 600 597 (B.I.A. May 24, 2019), aff’g No. A208 600
17 597 (Immig. Ct. Hartford Nov. 20, 2017). We assume the parties’ familiarity with
18 the underlying facts and procedural history.
19 Where, as here, the BIA largely adopts the IJ’s decision, “we review the
20 decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268,
21 271 (2d Cir. 2005). An agency’s factual findings are reviewed under the
1 Salazar does not challenge the agency’s denial of relief under the Convention Against Torture.
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1 substantial-evidence standard, and its legal conclusions are reviewed de novo. See
2 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014). “[T]he administrative findings of
3 fact are conclusive unless any reasonable adjudicator would be compelled to
4 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
5 In order to obtain asylum or withholding of removal, an applicant must
6 demonstrate past persecution, or a reasonable fear of future persecution, and
7 establish that “race, religion, nationality, membership in a particular social group,
8 or political opinion was or will be at least one central reason for persecuting the
9 applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v.
10 Garland, 52 F.4th 103, 105–06 (2d Cir. 2022) (deferring to BIA’s application of the
11 “one[-]central[-]reason” standard to withholding of removal). A social group is
12 sufficiently cognizable if it is “(1) composed of members who share a common
13 immutable characteristic, (2) defined with particularity, and (3) socially distinct
14 within the society in question.” Paloka, 762 F.3d at 196 (quoting In re M-E-V-G-, 26
15 I. & N. Dec. 227, 237 (B.I.A. 2014)); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–
16 74 (2d Cir. 2007).
17 We agree with the agency’s determination that Salazar did not meet his
18 burden to establish eligibility for asylum and withholding of removal. To begin,
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1 Salazar’s proposed social group, defined as “Guatemalans with American ties,”
2 Certified Admin. Record at 4, is not sufficiently particular, since its contours are
3 vague, ambiguous, and “amorphous.” Paloka, 762 F.3d at 196. Because
4 determining who has “ties” to the United States necessarily calls for subjective
5 interpretations, there are no “definable boundaries” or “clear benchmark[s] for
6 determining who falls within the group.” Id.7 Similarly, Salazar has failed to demonstrate that his proposed group is
8 socially distinct within Guatemalan society. Indeed, his application offers no
9 documentary evidence that Guatemalan society views “Guatemalans with
10 American ties” as a distinct group. See In re A–R–C–G–, 26 I. & N. Dec. 388, 393–
11 94 (B.I.A. 2014) (“To have social distinction, there must be evidence showing that
12 society in general perceives, considers, or recognizes persons sharing the
13 particular characteristic to be a group.” (internal quotation marks omitted)).
14 Moreover, to the extent that Salazar argues that his family was targeted because
15 they were perceived as wealthy, we have previously endorsed the BIA’s position
16 that “wealthy Guatemalans” is not a cognizable social group. See Ucelo-Gomez, 509
17 F.3d at 73–74 (“If ‘wealth’ defined the boundaries of a particular social group, a
18 determination about whether any petitioner fit into the group . . . would
4
1 necessitate a sociological analysis as to how persons with various assets would
2 have been viewed by others in their country.”).
3 Nor has Salazar established the “requisite nexus” between the harm he
4 suffered and his membership in the proposed group. It is well-settled that there
5 must be evidence that persecutors were motivated to harm the applicant because
6 of the applicant’s group membership. Paloka, 762 F.3d at 195 (“Whether the
7 requisite nexus exists depends on the views and motives of the persecutor.”
8 (internal quotation marks omitted)); INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)
9 (requiring “some evidence” of motive, “direct or circumstantial”). Salazar testified
10 that, beginning in 2007, his sister received menacing phone calls and text messages
11 demanding money that their parents had sent to them from the United States.
12 Salazar also recounted that later, in 2015, gang members threatened Salazar on his
13 way home from university and made death threats from outside his house.
14 Although Salazar presumed that these incidents were connected to one another
15 and his group membership, he presented no facts to support that presumption.
16 The agency therefore did not err in concluding that the nexus requirement had not
17 been satisfied – a finding that is further supported by the fact that Salazar’s sister
18 and grandmother have remained unharmed in Guatemala. See Melgar de Torres v.
5
1 Reno, 191 F.3d 307, 313 (2d Cir. 1999) (noting that a fear of persecution is
2 undermined when similarly situated family members remain unharmed in the
3 native country).
4 Salazar’s only response is that his proposed group is actually based on
5 family membership. But this argument fails for these same reasons. Salazar has
6 shown no connection between the harm he suffered and his family membership
7 because he did not receive extortion demands like his sister, his sister remains
8 unharmed in Guatemala, and he does not allege that she continues to receive
9 threats or extortion demands. See Elias-Zacarias, 502 U.S. at 483.
10 Finally, Salazar contends that the IJ erred by not considering the country
11 conditions in Guatemala. But Salazar did not raise this argument before the BIA
12 and failed to submit any country-conditions evidence to either the IJ or the BIA.
13 Because this argument has not been exhausted, it is not properly before us today.
14 See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only
15 on the administrative record on which the order of removal is based.”); Lin Zhong
16 v. U.S. Dep’t of Justice, 480 F.3d 104, 122–23 (2d Cir. 2007) (explaining that this
17 court’s review is generally limited to issues raised before the BIA).
18 In sum, the record supports the agency’s findings that Salazar failed to
6
1 establish a cognizable social group comprised of “Guatemalans with American
2 ties,” or a nexus between the alleged harm and that group or his family
3 membership. See Paloka, 762 F.3d at 196–97; Ucelo-Gomez, 509 F.3d at 73. We
4 therefore conclude that Salazar has not stated a claim for asylum and withholding
5 of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
6 For the foregoing reasons, the petition for review is DENIED. All pending
7 motions and applications are DENIED and stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
11
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