Castillo-Ovalle v. Garland

Opinion

20-3392 Castillo-Ovalle v. Garland BIA

Ruehle, IJ

A200 589 638

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 6th day of June, two thousand twenty- 4 three. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 MYNOR GIOVANNI CASTILLO- 14 OVALLE, 15 Petitioner, 16 17 v. 20-3392 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________

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1 FOR PETITIONER: Jose Perez, Esq., Law Offices of Jose Perez, 2 P.C., Syracuse, NY. 3 4 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney 5 General; Kohsei Ugumori, Senior Litigation 6 Counsel; Nehal H. Kamani, Attorney, Office 7 of Immigration Litigation, United States 8 Department of Justice, 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, AND 11 DECREED that the petition for review is DENIED. 12 Petitioner Mynor Giovanni Castillo-Ovalle, a native and citizen of 13 Guatemala, seeks review of a September 2, 2020, decision of the BIA affirming a 14 September 12, 2018, decision of an Immigration Judge (“IJ”) denying his 15 application for asylum, withholding of removal, and relief under the Convention 16 Against Torture (“CAT”). In re Castillo-Ovalle, No. A 200 589 638 (B.I.A. Sept. 2, 17 2020), aff’g No. A 200 589 638 (Immig. Ct. Buffalo Sept. 12, 2018). We assume the 18 parties’ familiarity with the underlying facts and procedural history. 19 Because the BIA adopted and affirmed the IJ’s decision without additional 20 analysis and summarily rejected Castillo-Ovalle’s appellate arguments, we have 21 reviewed the IJ’s decision directly. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 22 517, 523 (2d Cir. 2007). We review the IJ’s factual findings for substantial

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1 evidence, and we review questions of law and the application of law to fact de 2 novo. Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); see also 8 U.S.C. 3 § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any 4 reasonable adjudicator would be compelled to conclude to the contrary.”). 5 To establish eligibility for asylum, Castillo-Ovalle had to show that he 6 suffered past persecution or had a well-founded fear of future persecution “on 7 account of race, religion, nationality, membership in a particular social group, or 8 political opinion.” 8 U.S.C. § 1101(a)(42); see also id. § 1158(b)(1)(A), (B)(i). To 9 qualify for withholding of removal, he similarly had to establish a “clear 10 probability” of persecution based on “race, religion, nationality, membership in a 11 particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). 1 12 We agree that Castillo-Ovalle did not establish the required nexus to a 13 protected ground. He asserted that he was persecuted on account of his 14 membership in a particular social group consisting of “Guatemalan working men 15 targeted by gangs with violence for submission to become drug traffickers.” 16 Even assuming that this is a cognizable particular social group, Castillo-Ovalle did

1All citations to regulations refer to the version in effect at the time of the agency’s decision.

1 not establish that he was a member of this group, as he did not present evidence 2 that anyone wished for him to become a gang member or drug trafficker. See INS 3 v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (explaining that the applicant “must 4 provide some evidence of” the persecutor’s motive, “direct or circumstantial”). 5 Nor did he testify that membership in such a group was “one central reason” that 6 he was or would be targeted. 8 U.S.C. § 1158(b)(1)(B)(i). Instead, he testified 7 that he was targeted for extortionate calls and texts because he had recently 8 returned to Guatemala from the United States, and therefore was believed to have 9 money, and that he was assaulted and robbed because he walked by a group of 10 men who wanted his wallet. This testimony supports the agency’s determination 11 that the gangs were motivated by general criminal interest, rather than Castillo- 12 Ovalle’s membership in a particular social group. See Paloka v. Holder, 762 F.3d 13 191, 198–99 (2d Cir. 2014) (noting distinction between being targeted for crime 14 because of membership in a particular social group and because of a country’s 15 “pervasive criminality”); Melgar de Torres v. Reno, 191 F. 3d 307, 313 (2d Cir. 1999) 16 (noting that general crime and violence in a country is not a stated ground for 17 asylum and withholding of removal); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 18 73 (2d Cir. 2007) (“When the harm visited upon members of a group is attributable

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1 to the incentives presented to ordinary criminals rather than to persecution, the 2 scales are tipped away from considering those people a ‘particular social group’ 3 within the meaning of the [Immigration and Nationality Act].”). Because Castillo- 4 Ovalle did not establish that gang members targeted (or would target) him on 5 account of a protected ground, he has failed to meet his burden of establishing his 6 eligibility for asylum or withholding of removal. 7 To be eligible for CAT relief, Castillo-Ovalle had to show that “it is more 8 likely than not that he or she would be tortured if removed to the proposed 9 country of removal.” 8 C.F.R. § 1208.16(c)(2). Torture is defined as “severe pain 10 or suffering . . . intentionally inflicted on a person . . . by or at the instigation of or 11 with the consent or acquiescence of” a public official. Id. § 1208.18(a)(1). The IJ 12 reasonably concluded that Castillo-Ovalle failed to establish that he would “more 13 likely than not” be subject to torture in Guatemala. He remained in the country 14 for more than three years after he began receiving threats and nearly three years 15 after the assault. Although he moved four times and continued to receive 16 threatening calls and texts, there were no other instances of physical abuse during 17 that period, and the record is silent as to whether anyone attempted to locate him 18 after he left. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the

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1 absence of solid support in the record . . . [an applicant’s] fear is speculative at 2 best.”). 3 In sum, Castillo-Ovalle did not meet his burden for asylum or withholding 4 of removal because he did not demonstrate a nexus to a protected ground. He 5 also failed to establish entitlement to CAT relief because he has not shown that he 6 would “more likely than not” be subject to torture in Guatemala. 7 For the foregoing reasons, the petition for review is DENIED. All pending 8 motions and applications are DENIED and stays VACATED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court