Mendoza-Cruz v. Garland ( 2023 )

21-6271
Mendoza-Cruz v. Garland
BIA
Gordon, IJ
A208 450 030/031
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 8th day of August, two thousand
4 twenty-three.
5
6 PRESENT:
7 ROBERT D. SACK,
8 MICHAEL H. PARK,
9 EUNICE C. LEE,
10 Circuit Judges.
11 _____________________________________
12
13 KARINA LIZETH MENDOZA-CRUZ,
14 BAYRON ALBERTO PINEDA-
15 MENDOZA,
16 Petitioners,
17
18 v. 21-6271
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
1 Respondent.
2 _____________________________________
3
4 FOR PETITIONERS: Judy Resnick, Esq., Far Rockaway, NY.
5
6 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
7 Attorney General; Anthony P. Nicastro,
8 Assistant Director; Jenny C. Lee, Trial
9 Attorney, Office of Immigration Litigation,
10 United States Department of Justice,
11 Washington, DC.
12
13 UPON DUE CONSIDERATION of this petition for review of a Board of
14 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
15 DECREED that the petition for review is DENIED.
16 Petitioner Karina Lizeth Mendoza-Cruz, a native and citizen of El Salvador,
17 seeks review of an April 16, 2021, decision of the BIA affirming a February 21, 2019,
18 decision of an Immigration Judge (“IJ”) denying her application for asylum,
19 withholding of removal, and relief under the Convention Against Torture
20 (“CAT”). 1 In re Karina Lizeth Mendoza-Cruz, Bayron Alberto Pineda-Mendoza, Nos.
21 A208 450 030/031 (B.I.A. Apr. 16, 2021), aff’g Nos. A208 450 030/031 (Immigr. Ct.
22 N.Y.C. Feb. 21, 2019). We assume the parties’ familiarity with the underlying facts
1The second petitioner is Mendoza-Cruz’s minor child who entered and was placed in
removal proceedings with her. Because he is a derivative beneficiary of Mendoza-Cruz’s
asylum claim, this order refers solely to Mendoza-Cruz.
2
1 and procedural history.
2 We have reviewed both the BIA’s and IJ’s opinions. See Ming Xia Chen v.
3 BIA, 435 F.3d 141, 144 (2d Cir. 2006). We review the agency’s factual findings for
4 substantial evidence and its legal conclusions de novo. See Paloka v. Holder, 762
5 F.3d 191, 195 (2d Cir. 2014). “[T]he administrative findings of fact are conclusive
6 unless any reasonable adjudicator would be compelled to conclude to the
7 contrary.” 8 U.S.C. § 1252(b)(4)(B).
8 The agency did not err in rejecting Mendoza-Cruz’s proposed particular
9 social group of women who are the victims of attempted rape by gang members
10 who seek vengeance against them because it is defined by the harm suffered. See
11 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (holding that “a social group
12 cannot be defined exclusively by the fact that its members have been subjected to
13 harm” (quotation marks omitted)). Moreover, “[w]hen the harm visited upon
14 members of a group is attributable to the incentives presented to ordinary
15 criminals rather than to persecution, the scales are tipped away from considering
16 those people a ‘particular social group’ within the meaning of the [Immigration
17 and Nationality Act].” Id.18 The country conditions evidence discusses widespread violence against
3
1 women in El Salvador, but it does not state or suggest that women who are victims
2 of attempted rape (or other sexual violence) by gang members are customarily
3 perceived as a distinct social group in society or are at greater risk than others who
4 refuse a gang member’s demands. See Hernandez-Chacon v. Barr, 948 F.3d 94, 102
5 (2d Cir. 2020) (holding that Salvadoran women who have rejected the sexual
6 advances of gang members are not a cognizable social group given that the
7 country conditions evidence did “not discuss whether women who reject the
8 sexual advances of gang members are perceived as a distinct group in society or
9 are at greater risk than anyone else who refuses to comply with a gang member’s
10 demands”). Because the determination that the proposed group is not cognizable
11 is dispositive of asylum and withholding of removal, we do not reach the agency’s
12 additional findings regarding nexus and the severity of the past harm. See 8 U.S.C.
13 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a
14 general rule courts and agencies are not required to make findings on issues the
15 decision of which is unnecessary to the results they reach.”).
16 Mendoza-Cruz’s remaining arguments fail. The agency did not err in
17 denying humanitarian asylum because that relief is reserved for applicants who
18 have established past persecution on account of a protected ground. See 8 C.F.R.
4
1 § 1208.13(b)(1)(iii); Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A. 1989). Mendoza-
2 Cruz has not demonstrated that remand is necessary for the BIA to consider her
3 proposed social group under Matter of L–E–A–, 28 I. & N. Dec. 304, 304–05 (A.G.
4 2021), and Matter of A–B–, 28 I. & N. Dec. 307 (A.G. 2021), because neither the IJ
5 nor the BIA relied on the decisions vacated by those cases, Mendoza-Cruz does
6 not propose social groups based on domestic violence or family ties, and her
7 proposed social group is not cognizable under the standards set forth in Ucelo-
8 Gomez and Hernandez-Chacon. The Government did not have the burden to rebut
9 a presumption of future persecution because the burden shifts to the Government
10 only if an applicant has established past persecution on account of a protected
11 ground. See 8 C.F.R. § 1208.13(b)(1). There are no other issues properly before us
12 because Mendoza-Cruz does not raise a specific challenge to the agency’s denial
13 of CAT relief, and she did not exhaust her bias and due process arguments before
14 the BIA. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
15 sufficiently argued in the briefs are considered waived and normally will not be
16 addressed on appeal.”); Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 104, 122–23 (2d
17 Cir. 2007) (explaining that review is generally limited to issues raised before the
18 BIA).
5
1 For the foregoing reasons, the petition for review is DENIED. All pending
2 motions and applications are DENIED and stays VACATED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
6