Villegas Rocha v. Garland

19-1793
Villegas Rocha v. Garland
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of January, two thousand twenty-two.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
GUIDO CALABRESI,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
EDUARDO VILLEGAS ROCHA, AKA Eduardo
Villagas,
Petitioner,
v. 19-1793
NAC
MERRICK B. GARLAND, UNITED STATES ATTORNEY
GENERAL,
Respondent.
_____________________________________
For Petitioner: Jon Eric Jessen, Law Offices Jon E. Jessen LLC,
Stamford, CT.
For Respondent: Joseph H. Hunt, Assistant Attorney General; Anthony
P. Nicastro, Assistant Director, Office of Immigration;
Jonathan Robbins, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department of
Justice, Civil Division, Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the petition for review is DISMISSED in part and DENIED in part.
Petitioner Eduardo Villegas Rocha (“Villegas Rocha”), a native and citizen of Mexico,
seeks review of a May 22, 2019 decision of the BIA affirming a May 16, 2017 decision of an
Immigration Judge (“IJ”) denying asylum, withholding of removal under the Immigration and
Nationality Act (“INA”), and relief under the Convention Against Torture (“CAT”). In re
Eduardo Villegas Rocha, No. A205-497-373 (B.I.A. May 22, 2019), aff’g No. A205-497-373
(Immig. Ct. Hartford May 16, 2017). We assume the parties’ familiarity with the underlying
facts and procedural history. For the following reasons, we dismiss in part and deny in part
Villegas Rocha’s petition for review.
* * *
We have considered the IJ’s decision as supplemented and modified by the BIA’s decision.
See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) (“Where the BIA adopts the decision of
the IJ and merely supplements the IJ’s decision, . . . we review the decision of the IJ as
supplemented by the BIA.”); Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The applicable standards of review are well established. We review the agency’s factual findings
for substantial evidence and the agency’s legal conclusions de novo. Paloka v. Holder, 762 F.3d
191, 195 (2d Cir. 2014) (“We review factual findings under the substantial evidence standard,
[and] . . . [q]uestions of law, as well as the application of legal principles to undisputed facts, are
reviewed de novo.” (citations and internal quotation marks omitted)). “[T]he administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
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I. Asylum
An applicant must apply for asylum “within 1 year after the date of the alien’s arrival in
the United States” or show “either the existence of changed circumstances which materially affect
the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing.”
8 U.S.C. § 1158(a)(2)(B), (D). Our jurisdiction to review the agency’s findings regarding
timeliness and exceptions to the deadline is limited to “constitutional claims or questions of law.”
Id. § 1252(a)(2)(D). Villegas Rocha’s asylum application was untimely filed nearly ten years
after he arrived in the United States. He argues that his delay in filing was attributable to the
trauma he experienced in Mexico. He does not, however, explain how any error in the BIA’s
determination to the contrary implicates a constitutional claim or question of law, as required for
judicial review. See Joaquin-Porras v. Gonzales, 435 F.3d 172, 180 (2d Cir. 2006). We thus
dismiss the petition as to Villegas Rocha’s asylum claim.
II. Withholding of Removal
An applicant for withholding of removal must establish past persecution or that he is “more
likely than not” to be persecuted in the future, 8 C.F.R. § 1208.16(b), on account of a protected
ground, namely “race, religion, nationality, membership in a particular social group, or political
opinion,” 8 U.S.C. § 1231(b)(3)(A). Villegas Rocha argues that he is a member of the particular
social group of “witnesses to criminal activities by drug traffickers who provide information to
law enforcement.”
A cognizable social group is one that has “a common immutable characteristic,” is “defined
with particularity,” and is “socially distinct within the society in question.” Paloka, 762 F.3d at
196 (quoting Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). But Villegas Rocha
did not present any evidence that his proposed group is socially distinct. See id. (“Although a
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persecutor’s perception can be indicative of whether society views a group as distinct, a
persecutor’s perception alone is not enough to establish a cognizable social group.”). On this
record, the IJ reasonably concluded that Villegas Rocha did not show a sufficient likelihood of
future persecution on account of a protected ground.
III. CAT Relief
CAT relief requires the applicant to show that he would more likely than not be tortured.
8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). Villegas Rocha’s CAT claim is based on the same facts
as his claim for withholding of removal. It thus also fails because Villegas Rocha did not show
a sufficient likelihood of harm. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010). We
do not reach Villegas Rocha’s arguments regarding government acquiescence to torture because,
for CAT claims, the agency’s finding regarding the likelihood of torture is dispositive. See INS
v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required
to make findings on issues the decision of which is unnecessary to the results they reach.”).
* * *
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in
part. All pending motions and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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