Alas Garcia v. Garland

21-6354
Alas Garcia v. Garland
BIA
Segal, IJ
A209 842 416
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 29th day of November, two thousand
4 twenty-three.
5
6 PRESENT:
7 JOSEPH F. BIANCO,
8 BETH ROBINSON,
9 SARAH A. L. MERRIAM,
10 Circuit Judges.
11 _____________________________________
12
13 CAROLINA GUADALUPE ALAS
14 GARCIA,
15 Petitioner,
16
17 v. 21-6354
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24
1 FOR PETITIONER: Nicholas J. Mundy, Esq., Brooklyn, NY.
2
3 FOR RESPONDENT: Brian Boynton, Deputy Assistant Attorney
4 General; Tim Ramnitz, Senior Litigation
5 Counsel; Elizabeth R. Chapman, Trial
6 Attorney, Office of Immigration Litigation,
7 United States Department of Justice,
8 Washington, DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
11 AND DECREED that the petition for review is DENIED.
12 Petitioner Carolina Guadalupe Alas Garcia, a native and citizen of El
13 Salvador, seeks review of a June 7, 2021 decision of the BIA affirming an October
14 17, 2018 decision of an Immigration Judge (“IJ”) denying her application for
15 asylum, withholding of removal, and relief under the Convention Against Torture
16 (“CAT”). In re Carolina Guadalupe Alas Garcia, No. A 209 842 416 (B.I.A. June 7,
17 2021), aff’g No. A 209 842 416 (Immigr. Ct. N.Y.C. Oct. 17, 2018). We assume the
18 parties’ familiarity with the underlying facts and procedural history.
19 We have considered the IJ’s decision as supplemented by the BIA. See Yan
20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factfinding for
21 substantial evidence and questions of law de novo. Yanqin Weng v. Holder, 562
22 F.3d 510, 513 (2d Cir. 2009). “[T]he administrative findings of fact are conclusive
2
1 unless any reasonable adjudicator would be compelled to conclude to the
2 contrary.” 8 U.S.C. § 1252(b)(4)(B).
3 I. Jurisdiction
4 The BIA did not err in denying termination based on the lack of a hearing
5 time and date in the Notice to Appear (“NTA”). The Supreme Court has held that
6 an NTA that omits the hearing information is not sufficient to stop the accrual of
7 presence or residence required for cancellation of removal. See Pereira v. Sessions,
8 138 S. Ct. 2105, 2115–16 (2018); Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478–80
9 (2021). But those decisions address the “stop-time” rule and are “not properly
10 read to void jurisdiction in cases in which an NTA omits a hearing time or place.”
11 Banegas Gomez v. Barr, 922 F.3d 101, 110 (2d Cir. 2019) (emphasis in original); see
12 also Chery v. Garland, 16 F.4th 980, 986–87 (2d Cir. 2021). Rather, an NTA “that
13 omits information regarding the time and date of the initial removal hearing is
14 nevertheless adequate to vest jurisdiction in the Immigration Court, at least so long
15 as a notice of hearing specifying this information is later sent to the” applicant.
16 Banegas Gomez, 922 F.3d at 112; see also Chery, 16 F.4th at 986–87. Alas Garcia
17 received hearing notices with the time and date of her hearings, and she attended
18 her hearings.
3
1 II. Asylum and withholding of removal
2 To establish eligibility for asylum and withholding of removal, Alas Garcia
3 had to establish that “race, religion, nationality, membership in a particular social
4 group, or political opinion was or will be at least one central reason for” her
5 persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v.
6 Garland, 52 F.4th 103, 107–08 (2d Cir. 2022). Before the IJ, she asserted that a police
7 officer targeted her on account of her membership in a particular social group of
8 “victims of sexual abuse committed by the police who lack police protection.”
9 Certified Admin. Rec. at 96. But she did not challenge the denial of relief on that
10 basis before the BIA and does not assert a social group claim here. Accordingly,
11 that basis for asylum and withholding of removal is both unexhausted and
12 waived. See Ud Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023)
13 (confirming that petitioner generally must exhaust issues before the BIA); Yueqing
14 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (concluding that
15 petitioner had abandoned a claim by failing to address it in his brief).
16 Instead, Alas Garcia argues that the BIA erred in finding that she had not
17 raised a political opinion claim before the IJ. To demonstrate a well-founded fear
18 of persecution on account of political opinion, Alas Garcia had the burden to
4
1 establish, “through direct or circumstantial evidence,” that the officer’s motive in
2 targeting her arose from her political beliefs, actual or imputed, rather than merely
3 from the officer’s own opinion. Yueqing Zhang, 426 F.3d at 545; see also Hernandez-
4 Chacon v. Barr, 948 F.3d 94, 102 (2d Cir. 2020). A political opinion “must involve
5 some support for or disagreement with the belief system, policies, or practices of
6 a government and its instrumentalities.” Zelaya-Moreno v. Wilkinson, 989 F.3d
7 190, 199–200 (2d Cir. 2021) (citations omitted).
8 The BIA did not err in refusing to address political opinion as a basis for
9 asylum and withholding of removal. On her application, Alas Garcia checked the
10 boxes for particular social group and political opinion, but before the IJ, she offered
11 no testimony or argument concerning a political opinion claim. When the IJ
12 asked her counsel to identify the proposed social group or other ground, counsel
13 stated only: “Victims of sexual abuse committed by the police who lack police
14 protection.” Certified Admin. Rec. at 95–96. Because she did not argue political
15 opinion before the IJ, the BIA did not err in declining to address that ground on
16 appeal: “the BIA may refuse to consider an issue that could have been, but was
17 not, raised before an IJ.” Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015); see
18 also Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 190 (B.I.A. 2018) (same).
5
1 III. CAT relief
2 Unlike asylum or withholding of removal, CAT relief does not require a
3 nexus to a protected ground, but instead requires the applicant to establish that
4 she will “more likely than not . . . be tortured if removed to the proposed country
5 of removal.” 8 C.F.R. § 1208.16(c)(2). An applicant “will never be able to show
6 that [s]he faces a more likely than not chance of torture if one link in the chain
7 cannot be shown to be more likely than not to occur. It is the likelihood of all
8 necessary events coming together that must more likely than not lead to torture,
9 and a chain of events cannot be more likely than its least likely link.” Savchuck v.
10 Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (quoting Matter of J–F–F–, 23 I. & N. Dec.
11 912, 918 n.4 (A.G. 2006)).
12 The agency did not err in concluding that Alas Garcia failed to establish she
13 would “more likely than not” be tortured. She testified that the police officer
14 harassed her because of her youth and seeming lack of sexual experience and that
15 the officer left a 25-year-old waitress and other older hotel employees alone.
16 Thus, the IJ found that “[i]t is questionable whether this stage [Alas Garcia], who
17 is now 22 years old and has a child and is living with a companion, would still be
18 the object of affection by [that] particular police officer.” Certified Admin. Rec. at
6
1 34. The IJ also noted that “[s]he did not testify that she was the object of the
2 affection of any other police officer or any other individual in El Salvador.” Id. at
3 34–35. Given the speculative nature of Alas Garcia’s fear, the record does not
4 compel a conclusion that she demonstrated that she would “more likely than not”
5 be tortured if she returned to El Salvador. See Savchuck, 518 F.3d at 123–24; see
6 also Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of
7 solid support in the record . . . [an applicant’s] fear is speculative at best.”).
8
9 For the foregoing reasons, the petition for review is DENIED. All pending
10 motions and applications are DENIED and stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
7