Arias-Avila v. Garland

Opinion

18-3592 Arias-Avila v. Garland BIA

Lurye, IJ

A208 752 791

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 18th day of May, two thousand twenty-one. 5 6 PRESENT: 7 REENA RAGGI, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 WENDY CAROLINA ARIAS-AVILA, 14 Petitioner, 15 16 v. 18-3592 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 ____________________________________ 22 23 FOR PETITIONER: Daniel R. Spensieri, Law Offices 24 of Daniel Spensieri PC, White 25 Plains, NY 26 27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 28 Attorney General; John S. Hogan,

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1 Assistant Director; Mona Maria 2 Yousif, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC

6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Wendy Carolina Arias-Avila, a native and 11 citizen of Honduras, seeks review of a November 5, 2018 12 decision of the BIA affirming a November 14, 2017 decision of 13 an Immigration Judge (“IJ”) denying her application for 14 asylum, withholding of removal, and protection under the 15 Convention Against Torture (“CAT”). In re Wendy Carolina 16 Arias-Avila, No. A 208 752 791 (B.I.A. Nov. 5, 2018), aff’g 17 No. A 208 752 791 (Immig. Ct. N.Y.C. Nov. 14, 2017). We assume 18 the parties’ familiarity with the underlying facts and 19 procedural history. 20 We review both the BIA’s and IJ’s decisions “for the sake 21 of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 22 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 23 review are well established. See Yanqin Weng v. Holder, 562 24 F.3d 510, 513 (2d Cir. 2009) (reviewing factual findings for

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1 substantial evidence and questions of law and application of 2 law to facts de novo); Edimo-Doualla v. Gonzales, 464 F.3d 3 276, 282–83 (2d Cir. 2006) (applying substantial evidence 4 standard to nexus determination); Nasrallah v. Barr, 140 S. 5 Ct. 1683, 1692 (2020) (applying substantial evidence standard 6 to review of CAT claim). “[T]he administrative findings of 7 fact are conclusive unless any reasonable adjudicator would 8 be compelled to conclude to the contrary.” 8 U.S.C. 9 § 1252(b)(4)(B). 10 Arias-Avila first challenges the agency’s denial of her 11 application for asylum and withholding of removal. To obtain 12 asylum or withholding of removal, an applicant must establish 13 past persecution or a fear of future persecution on account 14 of a protected ground. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 15 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b)(1), (2). 16 A protected ground must be “at least one central reason” for 17 the claimed persecution, and the applicant must provide 18 direct or circumstantial evidence of the persecutor’s 19 motives. 8 U.S.C. § 1158(b)(1)(B)(i) (asylum); see also id. 20 § 1231(b)(3)(A) (withholding); Matter of C-T-L-, 25 I. & N. 21 Dec. 341, 346–48 (B.I.A. 2010) (holding that the “one central 22 reason” standard also applies to withholding of removal); INS

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1 v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (requiring “some 2 evidence” of motive, “direct or circumstantial”). Arias- 3 Avila alleged that gang members targeted her on account of 4 her membership in a particular social group, consisting of 5 her deceased partner and his family members. She testified 6 that her partner was killed after refusing gang extortion 7 demands and that she subsequently received similar threats. 8 When a social group is based on family ties and “animus 9 against the family per se is not implicated, the question 10 becomes what motive or motives cause the persecutor to seek 11 to harm members of an individual’s family.” Matter of L-E- 12 A-, 27 I. & N. Dec. 40, 45 (B.I.A. 2017), overruled in part 13 on other grounds by Matter of L-E-A-, 27 I. & N. Dec. 581, 14 596–97 (A.G. 2019). A “nexus [between the alleged harm and 15 a protected ground] is not established simply because a 16 particular social group of family members exists and the 17 family members experience harm.” Id. “The protected trait, 18 in this case membership in the . . . family, cannot play a 19 minor role—that is, it cannot be incidental [or] 20 tangential . . . to another reason for harm.” Id. at 44 21 (internal quotation marks omitted). Rather, there must be 22 some indication “that the persecutors had . . . animus against

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1 the family or the [applicant] based on their biological ties, 2 historical status, or other features unique to that family 3 unit.” Id. at 47. 4 Here, substantial evidence supports the agency’s 5 finding that Arias-Avila did not demonstrate that the threats 6 she received were on account of her family ties. The 7 individuals threatening her demanded money, her partner was 8 known to lend money, the demands for money resumed after her 9 home was robbed, and no other members of her partner’s family 10 received threats. Indeed, Arias-Avila testified that she did 11 not know why her partner was threatened or murdered in 2013, 12 and she did not articulate any reason that she or her partner 13 were targeted other than that they had good jobs. 14 On this record, the agency did not err in determining 15 that Arias-Avila was targeted for extortion and threatened 16 based on her perceived ability to pay rather than her family 17 ties. See id. at 45–47; Ucelo-Gomez v. Mukasey, 509 F.3d 70, 18 74 (2d Cir. 2007) (“[H]arm motivated purely by wealth is not 19 persecution.”). Accordingly, because Arias-Avila failed to 20 demonstrate a nexus between the harm she suffered and fears 21 and a protected ground, the agency did not err in denying 22 asylum and withholding of removal. See 8 U.S.C.

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1 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). 2 Arias-Avila also challenges the agency’s denial of her 3 application for CAT relief. Unlike asylum and withholding 4 of removal, CAT relief does not require a nexus to any 5 protected ground. See 8 C.F.R. § 1208.16(c)(2). However, 6 an applicant is required to show that she would “more likely 7 than not” be tortured by or with the acquiescence of 8 government officials. Id. §§ 1208.16(c)(2), 1208.18(a)(1). 9 Substantial evidence supports the agency’s conclusion that 10 Arias-Avila did not show that she would “more likely than 11 not” be tortured. 12 Arias-Avila was threatened over the phone and with notes 13 intermittently between 2013 and 2015. But she was not 14 physically harmed or confronted in person, and she had no 15 evidence that anyone was pursuing her or was threatening 16 similarly situated family members. Absent evidence that gang 17 members will continue to seek her out to demand money or to 18 torture her if she does not comply, she cannot show that 19 torture is more likely than not. See Savchuck v. Mukasey, 20 518 F.3d 119, 123 (2d Cir. 2008) (“An alien will never be 21 able to show that he faces a more likely than not chance of 22 torture if one link in the chain cannot be shown to be more

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1 likely than not to occur. It is the likelihood of all 2 necessary events coming together that must more likely than 3 not lead to torture, and a chain of events cannot be more 4 likely than its least likely link.” (quoting In re J-F-F-, 23 5 I. & N. Dec. 912, 918 n.4 (A.G. 2006)); Mu Xiang Lin v. U.S. 6 Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005) (rejecting 7 CAT claim where petitioner relied on country reports of some 8 torture in prisons but did not provide “particularized 9 evidence”); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d 10 Cir. 2005) (“In the absence of solid support in the 11 record . . . , [applicant’s] fear is speculative at best.”). 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