Castillo-Garcia v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: June 25, 2018
• Docket: 17-275
• Status: Unpublished

Opinion

17-275 Castillo-Garcia v. Sessions BIA A089 082 710

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 25th day of June, two thousand eighteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 WILLIAMS CASTILLO-GARCIA, AKA 14 WILLIAMS CASTILLO, 15 Petitioner, 16 17 v. 17-275 18 NAC 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Michael P. Diraimondo, Melville, 25 NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Claire L. 29 Workman, Jessica E. Burns, Senior 30 Litigation Counsel, Office of 31 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 Williams Castillo-Garcia, a native and

9 citizen of Honduras, seeks review of a December 29, 2016,

10 decision of the BIA denying his motion to reopen. In re

11 Williams Castillo-Garcia, No. A 089 082 710 (B.I.A. Dec. 29,

12 2016). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 We have reviewed the BIA’s denial of Castillo-Garcia’s

15 motion to reopen for abuse of discretion. Ali v. Gonzales,

16 448 F.3d 515, 517 (2d Cir. 2006). Motions to reopen,

17 including those based on ineffective assistance of counsel

18 or changed country conditions, must establish the movant’s

19 prima facie eligibility for any relief sought. See INS v.

20 Abudu, 485 U.S. 94, 104 (1988); Poradisova v. Gonzales, 420

21 F.3d 70, 78 (2d Cir. 2005) (changed country conditions);

22 Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (ineffective

23 assistance). The BIA did not abuse its discretion in

24 denying reopening because Castillo-Garcia did not establish

2 1 his prima facie eligibility for asylum, withholding of

2 removal, or CAT relief.

3 I. Asylum and Withholding of Removal

4 For asylum and withholding of removal, an “applicant

5 must establish that race, religion, nationality, membership

6 in a particular social group, or political opinion was or

7 will be at least one central reason for” the claimed

8 persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i) (asylum),

9 1231(b)(3)(A) (withholding); Matter of C-T-L, 25 I. & N.

10 Dec. 341, 346 (B.I.A. 2010) (extending “one central reason”

11 standard to withholding of removal).

12 To constitute a particular social group, a group must

13 be “(1) composed of members who share a common immutable

14 characteristic, (2) defined with particularity, and

15 (3) socially distinct within the society in question.”

16 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).

17 To be “defined with particularity,” the group must be

18 “‘discrete and have definable boundaries—it must not be

19 amorphous, overbroad, diffuse, or subjective.’” Paloka v.

20 Holder, 762 F.3d 191, 196 (2d Cir. 2014) (quoting Matter of

21 M-E-V-G-, 26 I. & N. Dec. at 239). And, “[t]o be socially

22 distinct, a group . . . must be perceived as a group by

23 society.” Matter of M-E-V-G-, 26 I. & N. Dec. at 240. 3 1 Castillo-Garcia argues that his particular social group

2 is defined by “his defiance of the gangs before he fled

3 Honduras, as a young man targeted for recruitment, and

4 extortion.” Pet.’s Br. at 12. We have previously upheld

5 the agency’s conclusion that materially indistinguishable

6 groups fail to meet the particularity and social

7 distinction requirements “where, as here, a petitioner

8 fails to offer evidence that individuals who oppose forced

9 gang recruitment are viewed by the relevant society as a

10 distinct group and the record is devoid of documentary

11 evidence discussing the treatment of such individuals as

12 compared to the rest of the relevant country’s population.”

13 Morquecho-Saico v. Sessions, 696 F. App’x 34, 36 (2d Cir.

14 2017). Castillo-Garcia’s country conditions evidence

15 describes violence by gangs against the general population

16 without distinguishing the treatment of young men. See

17 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)

18 (“When the harm visited upon members of a group is

19 attributable to the incentives presented to ordinary

20 criminals rather than to persecution, the scales are tipped

21 away from considering those people a ‘particular social

22 group.’”); Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d

23 Cir. 1999) (noting that “general crime conditions” do not 4 1 constitute persecution on account of a protected ground).

2 II. CAT Relief

3 To demonstrate eligibility for CAT relief, an applicant

4 must show “that it is more likely than not that he . . .

5 would be tortured” in his country of removal. 8 C.F.R.

6 § 1208.16(c)(2). Torture is defined as harm “inflicted by

7 or at the instigation of or with the consent or

8 acquiescence of a public official or other person acting in

9 an official capacity.” 8 C.F.R. § 1208.18(a)(1); see also

10 id. § 1208.18(a)(7) (defining “acquiescence”).

11 The BIA did not abuse its discretion when it concluded

12 that Castillo-Garcia had not made out a prima facie case

13 for CAT relief. Castillo-Garcia has not been to Honduras

14 since 2008 and has not provided any evidence that the gang

15 members have attempted to contact him or his family

16 members, who remain in Honduras. Nor does he cite any

17 objective evidence to support the assertion that gang

18 members will remember his defiance or that officials will

19 report his return to the gangs.

20 Because Castillo-Garcia’s failure to establish his

21 prima facie eligibility for relief is dispositive, we do

22 not address the BIA’s additional conclusion that he failed

23 establish a material change in country conditions in 5 1 Honduras. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a

2 general rule courts and agencies are not required to make

3 findings on issues the decision of which is unnecessary to

4 the results they reach.”). And because Castillo-Garcia

5 cannot show an entitlement to relief on the merits, he also

6 cannot demonstrate the prejudice required to sustain an

7 ineffective assistance of counsel claim.

8 For the foregoing reasons, the petition for review is

9 DENIED. Petitioner’s request for oral argument is DENIED

10 in accordance with Federal Rule of Appellate Procedure

11 34(a)(2), and Second Circuit Local Rule 34.1(b).

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court