Montalvo-Marin v. Garland

20-2463
Montalvo-Marin v. Garland
BIA
Segal, IJ
A206 733 719
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 10th day of May, two thousand twenty-three.
PRESENT:
JOSEPH F. BIANCO,
STEVEN J. MENASHI,
BETH ROBINSON,
Circuit Judges.
_________________________________________
YINMI ROLANDO MONTALVO-MARIN,
Petitioner,
v. 20-2463
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Usman B. Ahmad, Long
Island City, NY.
FOR RESPONDENT: Brian M. Boynton, Acting
Assistant Attorney General; Kohsei
Ugumori, Senior Litigation
Counsel; David Kim, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 DENIED.
Petitioner Yinmi Rolando Montalvo-Marin, a native and
citizen of El Salvador, seeks review of a July 6, 2020,
decision of the BIA affirming a July 2, 2018, decision of an
Immigration Judge (“IJ”) denying asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Yinmi Rolando Montalvo-Marin, No. A206 733
719 (B.I.A. July 6, 2020), aff’g No. A206 733 719 (Immig. Ct.
N.Y. City July 2, 2018). We assume the parties’ familiarity
with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s opinions.
See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards of review are well
established. “[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C.
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§ 1252(b)(4)(B). Thus, “we review the agency’s decision for
substantial evidence and must defer to the factfinder’s
findings based on such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. . . . By
contrast, we review legal conclusions de novo.” Singh v.
Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal quotation
marks omitted).
Substantial evidence supports the agency’s determination
that Montalvo-Marin failed to establish a nexus between the
harm he suffered and fears in El Salvador and an imputed anti-
gang political opinion, or that Salvadoran officials would
likely acquiesce in his torture by gang members.
A. Asylum and Withholding of Removal
To establish eligibility for asylum and withholding of
removal, an applicant “must establish that race, religion,
nationality, membership in a particular social group, or
political opinion was or will be at least one central reason
for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca
v. Garland, 52 F.4th 103, 105–06 (2d Cir. 2022). To
demonstrate that persecution (past or prospective) bears a
nexus to an applicant’s political opinion, “[t]he applicant
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must . . . show, through direct or circumstantial evidence,
that the persecutor’s motive to persecute arises from the
applicant’s political beliefs,” rather than merely from the
persecutor’s own opinion. Yueqing Zhang v. Gonzales, 426
F.3d 540, 545 (2d Cir. 2005). A political opinion “must
involve some support for or disagreement with the belief
system, policies, or practices of a government and its
instrumentalities, an entity that seeks to directly influence
laws, regulations, or policy, an organization that aims to
overthrow the government, or a group that plays some other
similar role in society.” Zelaya-Moreno v. Wilkinson, 989
F.3d 190, 199–200 (2d Cir. 2021) (citations omitted). “The
persecution may also be on account of an opinion imputed to
the applicant by the persecutor, regardless of whether or not
this imputation is accurate.” Hernandez-Chacon v. Barr, 948
F.3d 94, 102 (2d Cir. 2020).
The agency reasonably concluded that Montalvo-Marin
failed to establish that the harm he suffered and fears was
on account of his political opinion, real or imputed. He
testified that gang members demanded money from him and that
he was attacked to “settle . . . debts” after he resisted
those efforts. He did not testify that he had expressed a
4
disagreement with the gang’s belief system, policies, or
practices or that the gang members accused him of such
opinion.
Accordingly, the agency did not err in finding that, as
Montalvo-Marin testified, the gang targeted him solely based
on its members’ interests in accumulating wealth, which is
not a protected ground. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
1231(b)(3)(A); see also Zelaya-Moreno, 989 F.3d at 196–200;
Yueqing Zhang, 426 F.3d at 545 (requiring applicant to show
nexus to political opinion “through direct or circumstantial
evidence”); Melgar de Torres v. Reno, 191 F.3d 307, 313–14
(2d Cir. 1999) (noting that “random violence” and “general
crime conditions” are not grounds for asylum). His failure
to establish a nexus between the harm he suffered and fears
and a protected ground was dispositive of asylum and
withholding of removal. See 8 U.S.C. §§ 1101(a)(42),
1158(b)(1)(A), (B)(i), 1231(b)(3)(A).
B. CAT Relief
Unlike asylum and withholding of removal, CAT does not
require a nexus to a protected ground. See 8 C.F.R.
§§ 1208.16(c), 1208.17(a). An applicant for CAT relief must
show that he would “more likely than not” be tortured by or
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with the acquiescence of government officials. 8 C.F.R.
§§ 1208.16(c), 1208.18(a)(1). “[T]orture requires only that
government officials know of or remain willfully blind to an
act and thereafter breach their legal responsibility to
prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 172 (2d Cir.
2004); Quintanilla-Mejia v. Garland, 3 F.4th 569, 592 (2d
Cir. 2021). Under the “more likely than not” standard, an
applicant “must establish that there is greater than a fifty
percent chance” of occurrence. Mu-Xing Wang v. Ashcroft, 320
F.3d 130, 144 n.20 (2d Cir. 2003).
The IJ acknowledged that El Salvador is plagued by
rampant gang activity and that some officials collude with
gang members, but the IJ nevertheless reasonably concluded
that Montalvo-Marin had not established that acquiescence was
likely given evidence that officials were attempting to crack
down on gang activity, had imprisoned gang members from his
neighborhood, and had responded to his aunt’s call for
assistance and disrupted the attack he suffered. “[W]here,
as here, . . . evidence, specifically, State Department
Country Reports, supports the agency’s finding that the
Salvadoran government is aggressively trying to combat gang
violence, even through armed confrontations, we cannot
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conclude that the agency was compelled to find it likely that,
if [Montalvo-Marin] were removed to El Salvador, that
country’s officials would acquiesce in his torture by gang
members.” Quintanilla-Mejia, 3 F.4th at 593.
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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