Carrasco-Canales v. Garland

19-3656
Carrasco-Canales v. Garland
BIA
Loprest, IJ
A077 406 820
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
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 20th day of May, two thousand twenty-two.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 ORLIN ANTONIO CARRASCO-CANALES,
14 Petitioner,
15
16 v. 19-3656
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Craig Relles, Esq., White Plains,
24 NY.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Mary Jane
28 Candaux, Assistant Director;
1 Stephen Finn, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Orlin Antonio Carrasco-Canales, a native and
10 citizen of Honduras, seeks review of an October 16, 2019,
11 decision of the BIA affirming an April 17, 2019, decision of
12 an Immigration Judge (“IJ”) denying his application for
13 withholding of removal and relief under the Convention
14 Against Torture (“CAT”). In re Orlin Antonio Carrasco-
15 Canales, No. A077 406 820 (B.I.A. Oct. 16, 2019), aff’g No.
16 A077 406 820 (Immig. Ct. N.Y. City Apr. 17, 2019). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history.
19 Under the circumstances, we have reviewed the decisions
20 of both the IJ and the BIA. See Xiao Xing Ni v. Gonzales,
21 494 F.3d 260, 262 (2d Cir. 2007). The applicable standards
22 of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
2
1 2014) (reviewing factual findings for substantial evidence
2 and questions of law de novo). Carrasco-Canales applied for
3 withholding of removal based on political opinion and
4 membership in a particular social group, and for CAT relief,
5 asserting that a Honduran crime family—the Acostas—threatened
6 him because he refused to sell them his livestock and because
7 they suspected him of having an affair with the wife of an
8 Acosta family member.
9 I. Withholding of Removal
10 An applicant for withholding of removal must establish
11 that his “life or freedom would be threatened in [the] country
12 [of removal]” on the basis of “race, religion, nationality,
13 membership in a particular social group, or political
14 opinion.” 8 U.S.C. § 1231(b)(3)(A). An applicant must
15 “demonstrate a clear probability of future persecution on
16 account of a protected characteristic,” Hong Fei Gao v.
17 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (quotation marks
18 omitted).
19 Even assuming Carrasco-Canales’s past harm rose to the
20 level of persecution, the agency did not err in denying
21 withholding of removal because the record supports the
3
1 agency’s conclusion that Carrasco-Canales failed to show a
2 nexus to a protected ground. An applicant must establish
3 both that there is an applicable protected ground and that
4 his alleged persecutors were motivated to harm him on that
5 basis. See Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010).
6 Here, Carrasco-Canales’s claimed memberships in several
7 social groups based on his status as a businessowner and
8 landowner facing extortion were not cognizable. 1 “To
9 constitute a particular social group, a group must be:
10 “(1) composed of members who share a common immutable
11 characteristic, (2) defined with particularity, and
12 (3) socially distinct within the society in question.”
13 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014);
14 see also Paloka, 762 F.3d at 195–97. The agency did not err
15 in concluding that the proposed groups were not cognizable
16 because the record reflected that broad swaths of the Honduran
17 population are victims of crime and Carrasco-Canales’s
1Insofar as Carrasco-Canales challenges the IJ’s failure to
address whether he expressed a political opinion when he
refused to pay a bribe to a traffic officer, he did not raise
this claim before the BIA and it is therefore unexhausted.
See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107
n.1, 118-22 (2d Cir. 2007) (holding that our review is
generally limited to issues raised before the agency).
4
1 proposed groups were based on access to money or property or
2 defined by the harm suffered. See Ucelo-Gomez v. Mukasey,
3 509 F.3d 70, 73 (2d Cir. 2007) (holding that “a social group
4 cannot be defined exclusively by the fact that its members
5 have been subjected to harm”). “When the harm visited upon
6 members of a group is attributable to the incentives presented
7 to ordinary criminals rather than to persecution, the scales
8 are tipped away from considering those people a ‘particular
9 social group’ within the meaning of the INA.” Id.10 Moreover, the record supports the agency’s conclusion
11 that Carrasco-Canales also failed to show that his membership
12 in any group was a reason for the harm he suffered. See
13 Paloka, 762 F.3d at 195 (“the applicant must establish both
14 that the group itself was cognizable and that the alleged
15 persecutors targeted the applicant on account of h[is]
16 membership in that group” (citations and quotation marks
17 omitted)). Carrasco-Canales concurs with the agency findings
18 that personal avarice played a role in the Acosta family’s
19 actions, and his own testimony reflects that he was targeted
20 for his assets and his suspected affair. Although he
21 maintains that his status as a landowner facing extortion
5
1 constitutes a distinct and particular social group, he does
2 not show that the Acostas targeted him for that reason.
3 II. CAT Claim
4 The agency did not err in finding that Carrasco-Canales
5 failed to meet his burden of proof for CAT relief. See
6 8 C.F.R. § 1208.16(c)(2). A CAT applicant must prove that
7 “it is more likely than not that he . . . would be tortured,”
8 id., “by or at the instigation of or with the consent or
9 acquiescence of a public official,” id. § 1208.18(a)(1).
10 “Torture is an extreme form of cruel and inhuman treatment
11 and does not include lesser forms of cruel, inhuman or
12 degrading treatment or punishment that do not amount to
13 torture.” 8 C.F.R. § 1208.18(a)(2); see also Kyaw Zwar Tun
14 v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture requires
15 proof of something more severe than the kind of treatment
16 that would suffice to prove persecution.”). In assessing the
17 likelihood of torture, the agency considers, among other
18 factors, past torture, the possibility of relocation, “gross,
19 flagrant, or mass violations of human rights within the
20 country of removal,” and “[o]ther relevant information
21 regarding conditions in the country of removal.”
6
1 8 C.F.R. § 1208.16(c)(3)(i)–(v). “An alien will never be
2 able to show that he faces a more likely than not chance of
3 torture if one link in the chain cannot be shown to be more
4 likely than not to occur. It is the likelihood of all
5 necessary events coming together that must more likely than
6 not lead to torture, and a chain of events cannot be more
7 likely than its least likely link.” Savchuck v. Mukasey, 518
8 F.3d 119, 123 (2d Cir. 2008) (quoting Matter of J–F–F–, 23 I.
9 & N. Dec. 912, 918 n. 4 (A.G. 2006)).
10 Here, substantial evidence supports the agency’s denial
11 of CAT relief. In arguing otherwise, Carrasco-Canales
12 references evidence “that the Acosta family seized [his]
13 land, slaughtered and poisoned his father-in-law’s cattle,
14 looted his home, and attempted to covertly locate him through
15 Facebook,” along with another gang’s extortion of his
16 brother, as showing that he likely will face torture if
17 returned to Honduras. While terribly unfortunate, these acts
18 do not amount to torture. See 8 C.F.R. § 1208.18(a)(2).
19 Moreover, Carrasco-Canales did not present evidence that he
20 was forced to pay the Acostas or anybody else while he lived
21 in Honduras, and he did not allege that his brother who was
7
1 extorted was tortured. Carrasco-Canales also testified that
2 the Honduran police were untrustworthy and did not act when
3 he reported that a possible Acosta associate pointed a gun at
4 him. However, his country conditions evidence reflects both
5 severe crime and corruption and government efforts to
6 ameliorate those problems. Given the absence of past torture
7 (of him or his family members) and absence of clear evidence
8 that the authorities would acquiesce to his torture, the
9 agency did not err in concluding that he had not shown he
10 would more likely than not be tortured with the acquiescence
11 of Honduran authorities. See Savchuck, 518 F.3d at 123.
12 For the foregoing reasons, the petition for review is
13 DENIED. All pending motions and applications are DENIED and
14 stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
8