Khan v. Garland ( 2023 )

20-4171
Khan v. Garland
BIA
Christensen, IJ
A209 848 174
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 15th day of June, two thousand twenty-
5 three.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 RICHARD J. SULLIVAN,
11 Circuit Judges.
12 _____________________________________
13
14 MUZAMAL KHAN,
15 Petitioner,
16
17 v. 20-4171
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Usman B. Ahmad, Esq., Long Island
25 City, NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; M. Jocelyn Lopez
1 Wright, Senior Litigation Counsel;
2 Jacob A. Bashyrov, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, 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 Muzamal Khan, a native and citizen of
11 Pakistan, seeks review of a November 30, 2020 decision of the
12 BIA affirming a June 5, 2018 decision of an Immigration Judge
13 (“IJ”) denying his application for asylum, withholding of
14 removal, and relief under the Convention Against Torture
15 (“CAT”). In re Muzamal Khan, No. A 209 848 174 (B.I.A. Nov.
16 30, 2020), aff’g No. A 209 848 174 (Immig. Ct. N.Y.C. June 5,
17 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 We have reviewed the IJ’s decision as modified and
20 supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
21 Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales,
22 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
23 factual findings for substantial evidence and questions of
24 law de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513
2
1 (2d Cir. 2009). “[T]he administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary.” 8 U.S.C.
4 § 1252(b)(4)(B).
5 I. Asylum and Withholding of Removal
6 Khan alleged that a loan shark beat and threatened him
7 because of his membership in the particular social groups of
8 “farmers” and “people belonging to a rural class.” He had
9 the burden to establish that his membership in one of these
10 proposed groups was “at least one central reason” for the
11 past harm or his fear of future harm. 8 U.S.C.
12 § 1158(b)(1)(B)(i); see also Quituizaca v. Garland, 52 F.4th
13 103, 109–14 (2d Cir. 2022) (holding that the “one central
14 reason” standard applies to both asylum and withholding of
15 removal). Substantial evidence supports the agency’s
16 conclusion that Khan failed to carry that burden. See Edimo-
17 Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir. 2006)
18 (reviewing nexus determination for substantial evidence).
19 Khan testified that he approached the loan shark to
20 finance medical treatment for his parents, and that the loan
21 shark demanded payment of double the amount Khan had borrowed.
3
1 When he did not repay, the loan shark threatened Khan, slapped
2 him and held his neck, and took jewelry from his brother’s
3 house. Khan went to the police, but they simply told him to
4 repay the loan. Khan testified that the loan shark hurt him
5 because he wanted his money back. Based on these facts, the
6 agency reasonably determined Khan was threatened and harmed
7 because he failed to repay a loan, and not because of his
8 membership in his proposed particular social groups.
9 Quintanilla-Mejia v. Garland, 3 F.4th 569, 588 (2d Cir. 2021)
10 (explaining that to secure relief a noncitizen must show “his
11 persecutor[’s] motive in threatening his life or freedom was,
12 at least in part, [his] membership in that social group”);
13 see also Quituizaca, 52 F.4th at 114–15 (“A protected ground
14 cannot be incidental or tangential to another reason for
15 harm.” (quotation marks omitted)). Khan argues generally
16 that the loan shark takes advantage of rural farmers, but the
17 record reflects that the loan shark lends to rural farmers
18 because he can impose usurious terms, and not because of their
19 status as members of a particular social group. See Ucelo-
20 Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the
21 harm visited upon members of a group is attributable to the
4
1 incentives presented to ordinary criminals rather than to
2 persecution, the scales are tipped away from considering
3 those people a ‘particular social group’ within the meaning
4 of the INA.”).
5 II. CAT Relief
6 A CAT applicant bears the burden of demonstrating that
7 he will “more likely than not” be tortured by or with the
8 acquiescence of government officials. 8 C.F.R.
9 §§ 1208.16(c)(2), 1208.18(a)(1). Torture is defined as any
10 act by which severe pain or suffering, whether physical or
11 mental, is intentionally inflicted on a person by, or at the
12 instigation of, or with the consent or acquiescence of, a
13 public official acting in an official capacity or other person
14 acting in an official capacity. See id. § 1208.18(a)(1).
15 “In assessing whether it is more likely than not that an
16 applicant would be tortured,” the agency must consider “all
17 evidence relevant to the possibility of future torture,”
18 including “[e]vidence of past torture inflicted upon the
19 applicant,” “[e]vidence that the applicant could relocate to
20 a part of the country of removal where he or she is not likely
21 to be tortured,” “[e]vidence of gross, flagrant or mass
5
1 violations of human rights within the country of removal,”
2 and “[o]ther relevant information regarding conditions in the
3 country of removal.” Id. § 1208.16(c)(3). Furthermore, “an
4 alien will never be able to show that he faces a more likely
5 than not chance of torture if one link in the chain cannot be
6 shown to be more likely than not to occur. It is the
7 likelihood of all necessary events coming together that must
8 more likely than not lead to torture, and a chain of events
9 cannot be more likely than its least likely link.” Savchuck
10 v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (quoting In re
11 J–F–F–, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006)).
12 The record reflects that on one occasion the loan shark
13 slapped Khan and grabbed him by the neck but did not cause
14 serious injury. This does not amount to torture. See 8
15 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel
16 and inhuman treatment and does not include lesser forms of
17 cruel, inhuman or degrading treatment or punishment that do
18 not amount to torture.”). And Khan did not otherwise
19 establish that the loan shark would more likely than not
20 locate and torture him in the future; any such speculation
21 was undermined by evidence that the loan shark has not
6
1 followed through on prior threats to seize Khan’s house in
2 Pakistan. See Savchuck, 518 F.3d at 123; Jian Xing Huang v.
3 INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of
4 solid support in the record . . . [an applicant’s] fear is
5 speculative at best.”).
6 For the foregoing reasons, the petition for review is
7 DENIED. All pending motions and applications are DENIED and
8 stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
7