Gomez-Ramos v. Sessions

15-1908
Gomez-Ramos v. Sessions
BIA
Montante, IJ
A200 562 109
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 TO 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
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 13th day of March, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CARLOS EUSTAQUIO GOMEZ-RAMOS,
14 Petitioner,
15
16 v. 15-1908
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23
24
25
26
27
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jefferson B. Sessions, III, is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
1 FOR PETITIONER: Jose Perez, Syracuse, N.Y.
2
3 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
4 Assistant Attorney General; Terri J.
5 Scadron, Assistant Director; Greg D.
6 Mack, Senior Litigation Counsel,
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review is
14 DENIED.
15 Petitioner Carlos Eustaquio Gomez-Ramos, a native and
16 citizen of Guatemala, seeks review of the BIA’s May 13, 2015
17 decision affirming the Immigration Judge’s (“IJ”) September 13,
18 2013 denial of his application for asylum, withholding of
19 removal, and relief under the Convention Against Torture
20 (“CAT”). In re Carlos Eustaquio Gomez-Ramos, No. A200 562 109
21 (B.I.A. May 13, 2015), aff’g No. A200 562 109 (Immig. Ct. Buffalo
22 Sept. 13, 2013). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 Under the circumstances of this case, we have reviewed the
25 IJ’s decision as supplemented by the BIA. See Yan Chen v.
26 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
27 standards of review are well established. See 8 U.S.C.
28 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2
1 Cir. 2009); Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).
2 Gomez-Ramos does not raise any challenges to the agency’s
3 pretermission of asylum, nor does he adequately challenge the
4 agency’s denial of CAT relief. Accordingly, we decline to
5 reach those determinations. See Norton v. Sam’s Club, 145 F.3d
6 114, 117 (2d Cir. 1998). We also decline to consider his
7 unexhausted due process argument. Lin Zhong v. U.S. Dep’t of
8 Justice, 480 F.3d 104, 123-25 (2d Cir. 2007). We address below
9 Gomez-Ramos’s challenge to the agency’s determination that he
10 failed to establish that the persecution he suffered had a nexus
11 to a protected ground and its denial of a continuance.
12 I. Nexus/Particular Social Group
13 The agency reasonably concluded that Gomez-Ramos failed to
14 establish a nexus to a protected ground. In order to establish
15 eligibility for asylum and withholding of removal based on
16 membership in a particular social group, an applicant must
17 establish that members of the group “share some common
18 characteristic that members ‘either cannot change, or should
19 not be required to change because it is fundamental to their
20 individual identities or consciences,’” see Ucelo-Gomez v.
21 Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (per curiam) (quoting
22 In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (B.I.A. 2007)),
23 and that the applicant has suffered past persecution or has
3
1 demonstrated a well-founded fear of future persecution on
2 account of his membership in that group, see Castro v. Holder,
3 597 F.3d 93, 100 (2d Cir. 2010). A particular social group is
4 cognizable if, among other things, it refers to “a discrete
5 class of persons” and “the relevant society perceives,
6 considers, or recognizes the group as a distinct social group.”
7 Matter of W-G-R-, 26 I. & N. Dec. 208, 210, 217 (B.I.A. 2014)
8 (citations omitted); see Paloka v. Holder, 762 F.3d 191, 195
9 (2d Cir. 2014) (deferring to BIA’s construction of “particular
10 social group”). “[I]n determining particularity and social
11 distinction[,] what matters is whether society as a whole views
12 a group as socially distinct, not the persecutor’s perception.”
13 Paloka, 762 F.3d at 196 (citing In re M-E-V-G-, 26 I. & N. Dec.
14 227, 242 (B.I.A. 2014)).
15 Gomez-Ramos argues that he identified a cognizable social
16 group—“young Guatemalan[] migrant workers that live in the
17 United States and have family in Guatemala, who they regularly
18 support financially”—and asserts generally that this group
19 satisfies the criteria set forth in M-E-V-G- and W-G-R-. The
20 BIA applied the correct criteria and concluded that Gomez-Ramos
21 did not demonstrate that his proposed social group possessed
22 the requisite social distinction. The record supports that
23 conclusion. Gomez-Ramos testified that the gang members who
4
1 kidnapped his sister, and who continue to threaten his family,
2 perceive him as wealthy because he lives in the United States
3 and built a house in Guatemala; however, he offered no testimony
4 or evidence that “society as a whole” views his purported group
5 as socially distinct. See Paloka, 762 F.3d at 196. Moreover,
6 we have previously held that “wealth or affluence is simply too
7 subjective, inchoate, and variable to provide the sole basis
8 for membership in a particular social group.” Ucelo-Gomez, 509
9 F.3d at 73-74 (quoting In re A-M-E-, 24 I. & N. at 76).
10 Accordingly, the agency did not err in denying asylum and
11 withholding of removal for lack of nexus between the harm feared
12 and a protected ground.
13 II. Continuance Denial
14 We review the IJ’s denial of a continuance “under a highly
15 deferential standard of abuse of discretion.” Morgan, 445 F.3d
16 at 551 (citation omitted). Here, there was no abuse of
17 discretion. An IJ “may grant a motion for continuance for good
18 cause shown,” 8 C.F.R. § 1003.29, which may be shown by “a
19 diligent good faith effort to be ready to proceed and that any
20 additional evidence [the movant] seeks to present is probative,
21 noncumulative, and significantly favorable to [him],” In re
22 Sibrun, 18 I. & N. Dec. 354, 356 (B.I.A. 1983). An IJ’s decision
23 denying a motion for continuance will not be reversed by the
5
1 BIA unless the movant “establishes that [the] denial caused
2 him actual prejudice and harm and materially affected the
3 outcome” of the case. Id. at 356-57.
4 Here, the IJ did not abuse his discretion in concluding that
5 Gomez-Ramos failed to meet this standard. See Morgan, 445 F.3d
6 at 551-52. On December 19, 2012, the IJ granted Gomez-Ramos
7 seven months, until July 8, 2013, to submit documents in support
8 of his application. Gomez-Ramos contends that he made a good
9 faith effort to ensure that these documents would be translated
10 by July 8, 2013, but that the two translation companies he
11 retained did not prepare the translations by this date. The
12 alleged delay caused by these translation companies is
13 insufficient to show diligence because it does not explain why,
14 after receiving two continuances totaling eighteen months to
15 file his application, and an additional seven months to submit
16 evidence, he still failed to secure the translations. See In
17 re Sibrun, 18 I. & N. at 357. Nor can he show prejudice given
18 that the untranslated documents do not relate to establishing
19 a cognizable social group.
20 For the foregoing reasons, the petition for review is
21 DENIED. Petitioner’s request for oral argument in this
22
6
1 petition is DENIED in accordance with Federal Rule of Appellate
2 Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
7