17-919 Arevalo-Callejas v. Whitaker BIA Straus, IJ A094 829 807 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 28th day of November, two thousand 5 eighteen. 6 7 PRESENT: 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 RICHARD C. WESLEY, 11 Circuit Judges. 12 _____________________________________ 13 14 LUDWIN ELEAZAR AREVALO-CALLEJAS, 15 AKA LUDWIN AREVALO, 16 Petitioner, 17 18 v. 17-919 19 NAC 20 MATTHEW G. WHITAKER, 21 ACTING UNITED STATES ATTORNEY 22 GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Daniel A. McLaughlin, Sidley 27 Austin LLP, New York, NY. 28 29 FOR RESPONDENT: Chad A. Readler, Acting Assistant 30 Attorney General; Cindy S. 31 Ferrier, Assistant Director; 32 Brendan P. Hogan, Attorney, Office 33 of Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Ludwin Eleazar Arevalo-Callejas, a native
9 and citizen of El Salvador, seeks review of a March 23,
10 2017, decision of the BIA affirming a November 17, 2016,
11 decision of an Immigration Judge (“IJ”) denying Arevalo-
12 Callejas’s application for asylum, withholding of removal,
13 and relief under the Convention Against Torture (“CAT”).
14 In re Ludwin Eleazar Arevalo-Callejas, No. A094 829 807
15 (B.I.A. Mar. 23, 2017), aff’g No. A094 829 807 (Immig. Ct.
16 Hartford Nov. 17, 2016). We assume the parties’
17 familiarity with the underlying facts and procedural
18 history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. Wala v.
21 Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). We review the
22 agency’s factual findings for substantial evidence, 8
2 1 U.S.C. § 1252(b)(4)(B); Edimo-Doualla v. Gonzales, 464 F.3d
2 276, 281-83 (2d Cir. 2006); Joaquin-Porras v. Gonzales, 435
3 F.3d 172, 181 (2d Cir. 2006), and questions of law de novo,
4 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
5 I. Asylum & Withholding of Removal
6 For both asylum and withholding of removal, an
7 “applicant must establish that race, religion, nationality,
8 membership in a particular social group, or political
9 opinion was or will be at least one central reason for
10 persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i)
11 (asylum); id. § 1231(b)(3)(A) (withholding); see also
12 Matter of C-T-L, 25 I. & N. Dec. 341, 346 (B.I.A. 2010)
13 (holding that the “one central reason” standard also
14 applies to withholding of removal). We need not consider
15 whether tattooed individuals who may be perceived as gang
16 members in El Salvador is a cognizable social group;
17 Arevalo-Callejas did not demonstrate that he would be
18 targeted for harm on account of his membership in such a
19 group. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
20 Arevalo-Callejas alleged that he would be mistaken for a
21 gang member. But his tattoos are not gang related; he lacks
3 1 personal knowledge because he left El Salvador as a child;
2 and he did not provide any country conditions evidence to
3 establish that his fear is well-founded. Neither the
4 country reports considered by the IJ nor the evidence
5 Arevalo-Callejas submitted on appeal state that individuals
6 with non-gang-related tattoos are perceived as gang members
7 or targeted by either the police or gangs.* Although some
8 of the articles discuss indiscriminate arrests and violence
9 by the police against suspected gang members and that
10 current and former gang members may be identified by gang
11 tattoos, these articles do not discuss the significance of
12 non-gang tattoos. The country reports confirm that there
13 are rampant levels of gang violence against many sectors of
14 the Salvadoran population, but these “general crime
* The BIA did not err in declining to consider the evidence Arevalo-Callejas submitted for the first time on appeal because he did not move to remand as required by regulation. 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand”); see also Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate body, the BIA may decline to review evidence proffered for the first time on appeal). Additionally, as discussed herein, the evidence Arevalo-Callejas submitted would not change the outcome of his case. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
4 1 conditions” do not constitute persecution on account of a
2 protected ground. Melgar de Torres v. Reno, 191 F.3d 307,
3 314 (2d Cir. 1999); cf. Ucelo-Gomez v. Mukasey, 509 F.3d
4 70, 73 (2d Cir. 2007) (“When the harm visited upon members
5 of a group is attributable to the incentives presented to
6 ordinary criminals rather than to persecution, the scales
7 are tipped away from considering those people a ‘particular
8 social group’ . . . .”).
9 Given the lack of evidence that Arevalo would be
10 targeted or harmed on account of his tattoos, substantial
11 evidence supports the agency’s denial of asylum and
12 withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
13 1231(b)(3)(A). Because the burden finding is dispositive
14 of asylum, we need not reach the IJ’s alternative bases for
15 denying that form of relief. See INS v. Bagamasbad, 429
16 U.S. 24, 25 (1976) (“As a general rule courts and agencies
17 are not required to make findings on issues the decision of
18 which is unnecessary to the results they reach.”).
19 II. CAT Relief
20 There is no nexus requirement for CAT relief. “[T]he
21 CAT expressly prohibits the United States from returning
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17-919 Arevalo-Callejas v. Whitaker BIA Straus, IJ A094 829 807 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 28th day of November, two thousand 5 eighteen. 6 7 PRESENT: 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 RICHARD C. WESLEY, 11 Circuit Judges. 12 _____________________________________ 13 14 LUDWIN ELEAZAR AREVALO-CALLEJAS, 15 AKA LUDWIN AREVALO, 16 Petitioner, 17 18 v. 17-919 19 NAC 20 MATTHEW G. WHITAKER, 21 ACTING UNITED STATES ATTORNEY 22 GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Daniel A. McLaughlin, Sidley 27 Austin LLP, New York, NY. 28 29 FOR RESPONDENT: Chad A. Readler, Acting Assistant 30 Attorney General; Cindy S. 31 Ferrier, Assistant Director; 32 Brendan P. Hogan, Attorney, Office 33 of Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Ludwin Eleazar Arevalo-Callejas, a native
9 and citizen of El Salvador, seeks review of a March 23,
10 2017, decision of the BIA affirming a November 17, 2016,
11 decision of an Immigration Judge (“IJ”) denying Arevalo-
12 Callejas’s application for asylum, withholding of removal,
13 and relief under the Convention Against Torture (“CAT”).
14 In re Ludwin Eleazar Arevalo-Callejas, No. A094 829 807
15 (B.I.A. Mar. 23, 2017), aff’g No. A094 829 807 (Immig. Ct.
16 Hartford Nov. 17, 2016). We assume the parties’
17 familiarity with the underlying facts and procedural
18 history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. Wala v.
21 Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). We review the
22 agency’s factual findings for substantial evidence, 8
2 1 U.S.C. § 1252(b)(4)(B); Edimo-Doualla v. Gonzales, 464 F.3d
2 276, 281-83 (2d Cir. 2006); Joaquin-Porras v. Gonzales, 435
3 F.3d 172, 181 (2d Cir. 2006), and questions of law de novo,
4 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
5 I. Asylum & Withholding of Removal
6 For both asylum and withholding of removal, an
7 “applicant must establish that race, religion, nationality,
8 membership in a particular social group, or political
9 opinion was or will be at least one central reason for
10 persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i)
11 (asylum); id. § 1231(b)(3)(A) (withholding); see also
12 Matter of C-T-L, 25 I. & N. Dec. 341, 346 (B.I.A. 2010)
13 (holding that the “one central reason” standard also
14 applies to withholding of removal). We need not consider
15 whether tattooed individuals who may be perceived as gang
16 members in El Salvador is a cognizable social group;
17 Arevalo-Callejas did not demonstrate that he would be
18 targeted for harm on account of his membership in such a
19 group. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
20 Arevalo-Callejas alleged that he would be mistaken for a
21 gang member. But his tattoos are not gang related; he lacks
3 1 personal knowledge because he left El Salvador as a child;
2 and he did not provide any country conditions evidence to
3 establish that his fear is well-founded. Neither the
4 country reports considered by the IJ nor the evidence
5 Arevalo-Callejas submitted on appeal state that individuals
6 with non-gang-related tattoos are perceived as gang members
7 or targeted by either the police or gangs.* Although some
8 of the articles discuss indiscriminate arrests and violence
9 by the police against suspected gang members and that
10 current and former gang members may be identified by gang
11 tattoos, these articles do not discuss the significance of
12 non-gang tattoos. The country reports confirm that there
13 are rampant levels of gang violence against many sectors of
14 the Salvadoran population, but these “general crime
* The BIA did not err in declining to consider the evidence Arevalo-Callejas submitted for the first time on appeal because he did not move to remand as required by regulation. 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand”); see also Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate body, the BIA may decline to review evidence proffered for the first time on appeal). Additionally, as discussed herein, the evidence Arevalo-Callejas submitted would not change the outcome of his case. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
4 1 conditions” do not constitute persecution on account of a
2 protected ground. Melgar de Torres v. Reno, 191 F.3d 307,
3 314 (2d Cir. 1999); cf. Ucelo-Gomez v. Mukasey, 509 F.3d
4 70, 73 (2d Cir. 2007) (“When the harm visited upon members
5 of a group is attributable to the incentives presented to
6 ordinary criminals rather than to persecution, the scales
7 are tipped away from considering those people a ‘particular
8 social group’ . . . .”).
9 Given the lack of evidence that Arevalo would be
10 targeted or harmed on account of his tattoos, substantial
11 evidence supports the agency’s denial of asylum and
12 withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
13 1231(b)(3)(A). Because the burden finding is dispositive
14 of asylum, we need not reach the IJ’s alternative bases for
15 denying that form of relief. See INS v. Bagamasbad, 429
16 U.S. 24, 25 (1976) (“As a general rule courts and agencies
17 are not required to make findings on issues the decision of
18 which is unnecessary to the results they reach.”).
19 II. CAT Relief
20 There is no nexus requirement for CAT relief. “[T]he
21 CAT expressly prohibits the United States from returning
5 1 any person to a country in which it is more likely than not
2 that he or she would be in danger of being subjected to
3 torture.” Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.
4 2004) (quotation marks omitted). “Torture is defined as
5 any act by which severe pain or suffering . . . is
6 intentionally inflicted on a person . . . by or at the
7 instigation of or with the consent or acquiescence of a
8 public official or other person acting in an official
9 capacity.” 8 C.F.R. § 1208.18(a)(1). Acquiescence, in
10 turn, “requires that the public official, prior to the
11 activity constituting torture, have awareness of such
12 activity and thereafter breach his or her legal
13 responsibility to intervene to prevent such activity.” 8
14 C.F.R. § 1208.18(a)(7); see Khouzam, 361 F.3d at 170-71.
15 Arevalo-Callejas had the burden of demonstrating a
16 likelihood of torture in his particular circumstances, and
17 his failure to present any evidence that he would be
18 targeted for his tattoos or for any other reason (aside
19 from the generally violent country conditions) precludes
20 CAT relief. See 8 C.F.R. § 1208.18(a)(1); Mu-Xing Wang v.
21 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (alien must show
6 1 a likelihood of torture in “his particular alleged
2 circumstances”).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, the stay of
5 removal that the Court previously granted in this petition
6 is VACATED. The pending request for oral argument in this
7 petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court