Giron-Salinas v. Garland ( 2023 )

20-3950
Giron-Salinas v. Garland
BIA
Bain, IJ
A206 022 354
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 15th day of June, two thousand twenty-
4 three.
5
6 PRESENT:
7
8 RICHARD C. WESLEY,
9 RICHARD J. SULLIVAN,
10 MYRNA PÉREZ,
11 Circuit Judges.
12 _____________________________________
13
14 JAIRON NEHEMIAS GIRON-SALINAS,
15
16 Petitioner,
17
18 v. 20-3950
19 NAC
20 MERRICK B. GARLAND, UNITED STATES
21 ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
25
1 For Petitioner: Nicholas John Mundy, Brooklyn, NY.
2
3 For Respondent: Brian M. Boynton, Acting Assistant Attorney
4 General; Linda S. Wernery, Assistant Director;
5 Susan Bennett Green, Senior Litigation
6 Counsel, Office of Immigration Litigation,
7 United States Department of Justice,
8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Jairon Nehemias Giron-Salinas, a native and citizen of Guatemala, seeks
13 review of a decision of the BIA that reversed a decision of an Immigration Judge
14 (“IJ”) and denied his application for asylum, withholding of removal, and
15 protection under the Convention Against Torture (“CAT”). In re Jairon Nehemias
16 Giron-Salinas, No. A206 022 354 (B.I.A. Nov. 9, 2020), rev’g No. A206 022 354
17 (Immig. Ct. N.Y.C. June 19, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 When the BIA reverses an IJ’s grant of relief, we review the BIA’s decision
20 as the final agency determination. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005). We review the agency’s findings of fact for substantial evidence and
2
1 conclusions of law de novo. See id.; see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he
2 administrative findings of fact are conclusive unless any reasonable adjudicator
3 would be compelled to conclude to the contrary.”).
4 I. Jurisdiction
5 As an initial matter, we decline to consider Giron-Salinas’s jurisdictional
6 argument, which was not raised before the BIA. Lin Zhong v. U.S. Dep’t of Just.,
7 480 F.3d 104, 123 (2d Cir. 2007) (“[U]sually . . . issues not raised to the BIA will not
8 be examined by the reviewing court.”). In any event, Giron-Salinas’s challenge to
9 the IJ’s jurisdiction is based on a reading of Niz-Chavez v. Garland, 141 S. Ct. 147410 (2021), which has been foreclosed by our decisions in Banegas Gomez v. Barr, 922
11 F.3d 101, 110–12 (2d Cir. 2019) and Chery v. Garland, 16 F.4th 980, 987 (2d Cir. 2021).
12 II. Asylum and Withholding of Removal
13 With respect to asylum and withholding of removal, we agree with the
14 BIA’s determination that Giron-Salina did not meet his burden to establish
15 eligibility for either of these forms of relief. In order to obtain asylum or
16 withholding of removal, an applicant must establish past persecution or a fear of
17 future persecution and that “race, religion, nationality, membership in a particular
18 social group, or political opinion was or will be at least one central reason for
3
1 persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);
2 Quituizaca v. Garland, 52 F.4th 103, 105–06 (2d Cir. 2022) (deferring to BIA’s
3 application of the “one[-]central[-]reason” standard to withholding of removal).
4 To constitute a cognizable particular social group, a group must be “(1) composed
5 of members who share a common immutable characteristic, (2) defined with
6 particularity, and (3) socially distinct within the society in question.” Paloka v.
7 Holder, 762 F.3d 191, 196 (2d Cir. 2014) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
8 227, 237 (B.I.A. 2014)); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir.
9 2007).
10 Giron-Salinas’s proposed group – “Guatemalans of school age who are
11 unable to attend school due to gang violence or gang conscription,” Certified
12 Admin. Record at 3 – is not socially distinct or sufficiently particular. Giron-
13 Salinas did not demonstrate that Guatemalan society perceives school-aged
14 children targeted by gangs, and thus unable to attend school, to be a distinct social
15 group. See Paloka, 762 F.3d at 196 (“[I]n determining particularity and social
16 distinction what matters is whether society as a whole views a group as socially
17 distinct, not the persecutor’s perception.”). Moreover, Giron-Salinas’s proposed
18 group is impermissibly circular. See id. (“Persecutory conduct aimed at a social
4
1 group cannot alone define the group, which must exist independently of the
2 persecution.”); cf. Ucelo-Gomez, 509 F.3d at 73 (“When the harm visited upon
3 members of a group is attributable to the incentives presented to ordinary
4 criminals rather than to persecution, the scales are tipped away from considering
5 those people a ‘particular social group’ within the meaning of the INA.”).
6 III. CAT Protection
7 The BIA also provided sufficiently cogent reasons for its determination that
8 the IJ had clearly erred in determining that Giron-Salina was eligible for CAT
9 relief. See Wu Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016). A CAT applicant has
10 the burden to show that he would “more likely than not” be tortured in the
11 proposed country of removal. See 8 C.F.R. § 1208.16(c)(2). “Torture is defined as
12 any act by which severe pain or suffering, whether physical or mental, is
13 intentionally inflicted on a person” by, or at the instigation of, or with the consent
14 or acquiescence of, any person acting in an official capacity. Id. § 1208.18(a)(1); see
15 also Garcia-Aranda v. Garland, 53 F.4th 752, 759 (2d Cir. 2022). In determining
16 whether torture is more likely than not, the agency is required to consider evidence
17 of past torture and country conditions. 8 C.F.R. § 1208.16(c)(3).
18 Here, the BIA reasonably determined that Giron-Salinas’s testimony
5
1 regarding his past experiences with gangs as a school-aged child – as well as
2 country-conditions evidence concerning crime and gang violenceis insufficient to
3 demonstrate that he is more likely than not to be tortured as an adult upon his
4 return to Guatemala. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003)
5 (“[W]hile Wang’s testimony as well as some of his ‘country conditions’
6 documents . . . indicate that some prisoners in China have been tortured, Wang
7 has in no way established that someone in his particular alleged circumstances is
8 more likely than not to be tortured if imprisoned in China.” (citation and emphasis
9 omitted)); see also Mu Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005)
10 (requiring “particularized evidence” beyond general country conditions to
11 support a CAT claim).
12 For the foregoing reasons, the petition for review is DENIED. All pending
13 motions and applications are DENIED and stays VACATED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe,
16 Clerk of Court
6