Garcia v. Garland

Opinion

20-2241 Garcia v. Garland BIA Kolbe, IJ A201 347 244

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of April, two thousand twenty- three.

PRESENT: JOSEPH F. BIANCO, STEVEN J. MENASHI, BETH ROBINSON, Circuit Judges. _____________________________________

MARIO RENE GARCIA, Petitioner,

v. 20-2241 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Edgar L. Fankbonner, Goldberger & Dubin, PC, New York, NY. FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Claire L. Workman, Senior Litigation Counsel; John F. Stanton, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Mario Rene Garcia, a native and citizen of

Guatemala, seeks review of a June 15, 2020, decision of the

BIA affirming a November 13, 2019, decision of an Immigration

Judge (“IJ”) denying his application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”), and his motion for a continuance. In re Mario Rene

Garcia, No. A201 347 244 (B.I.A. June 15, 2020), aff’g No.

A201 347 244 (Immig. Ct. N.Y. City Nov. 13, 2019). We assume

the parties’ familiarity with the underlying facts and

procedural history.

We have reviewed the IJ’s decision as modified and

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency did

2 not err in finding that Garcia failed to establish his

eligibility for relief based on his claim that gang members

assaulted him when he was 15 years old or in denying his

request for a continuance to obtain a psychological

examination to determine whether he suffers from post-

traumatic stress disorder (“PTSD”) or attention-

deficit/hyperactivity disorder (“ADHD”).

Asylum and Withholding of Removal

The applicable standards of review are well established.

“[T]he administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, “we review

the agency’s decision for substantial evidence and must defer

to the factfinder’s findings based on such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion. . . . By contrast, we review legal conclusions de

novo.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021)

(internal quotation marks omitted).

An applicant for asylum and withholding of removal “must

establish that race, religion, nationality, membership in a

particular social group, or political opinion was or will be

at least one central reason for persecuting the applicant.”

3 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);

Quituizaca v. Garland, 52 F.4th 103, 105–06, 114 (2d Cir.

2022). Garcia failed to establish that the harm he suffered

and fears was or would be on account of a protected ground.

Garcia asserted that gang members had and would target

him on account of his membership in social groups comprised

of “skilled tradespersons” and “Guatemalans who have informed

on the gangs to local authorities” and on account of an

imputed anti-gang political opinion. “To succeed on a

particular social group claim, the applicant must establish

both that the group itself was cognizable, and that the

alleged persecutors targeted the applicant on account of

h[is] membership in that group.” Paloka v. Holder, 762 F.3d

191, 195 (2d Cir. 2014) (quotation marks and citation

omitted). For a political opinion claim, “[t]he applicant

must . . . show, through direct or circumstantial evidence,

that the persecutor’s motive to persecute arises from the

applicant’s political belief,” Yueqing Zhang v. Gonzales, 426

F.3d 540, 545 (2d Cir. 2005), which “must involve some support

for or disagreement with the belief system, policies, or

practices of a government and its instrumentalities, an

entity that seeks to directly influence laws, regulations, or

4 policy, an organization that aims to overthrow the

government, or a group that plays some other similar role in

society,” Zelaya-Moreno v. Wilkinson, 989 F.3d 190, 199–200

(2d Cir. 2021) (citations omitted).

The agency reasonably concluded that Garcia failed to

establish a nexus between the harm he suffered and fears and

his proposed social groups or an imputed anti-gang opinion.

He testified that gang members twice targeted him for

recruitment and financial purposes. He did not testify that

they were interested in him on account of his trade. And

aside from his testimony that gang members called him a

“snitch,” among other names, as he rode public transport

sometime between the attack he reported to police in 1994 and

his departure from Guatemala in 2006, Garcia did not testify

that gang members were aware of his police report or that

they ever mentioned it to him. Nor did he testify that he

had expressed a disagreement with the gang’s “belief system,

policies, or practices,” or that the gang members accused him

of such opinion. Zelaya-Moreno, 989 F.3d at 199–200.

Accordingly, Garcia did not provide facts connecting his

attacks and his fears based on those attacks to his membership

in the social groups of “skilled tradespersons” and

5 “Guatemalans who have informed on the gangs to local

authorities” or to an imputed anti-gang political opinion.

Accordingly, the agency did not err in finding that the gang

targeted him based on the gang’s interest in recruiting

members and accumulating wealth, which are not protected

grounds. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A);

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

the harm visited upon members of a group is attributable to

the incentives presented to ordinary criminals rather than to

persecution, the scales are tipped away from considering

those people a ‘particular social group.’”); see also Zelaya-

Moreno, 989 F.3d at 200 (“[R]efusing to join a gang without

more does not constitute a political opinion.”); Yueqing

Zhang, 426 F.3d at 545 (requiring “direct or circumstantial

evidence” of nexus); Melgar de Torres v. Reno, 191 F.3d 307,

313–14 (2d Cir. 1999) (noting that “random violence” and

“general crime conditions” are not grounds for asylum).

Because Garcia failed to establish a nexus between the

harm he suffered and fears and a protected ground, which was

dispositive of asylum and withholding of removal, we do not

consider the agency’s alternative finding that Garcia’s

proposed groups were not cognizable. See 8 U.S.C.

6 §§ 1101(a)(42), 1158(b)(1)(A), (B)(i), 1231(b)(3)(A); see

also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

rule courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results

they reach.”).

CAT Relief

Unlike asylum and withholding of removal, protection

under the CAT does not require a nexus to a protected ground.

See 8 C.F.R. §§ 1208.16(c), 1208.17(a). CAT applicants have

the burden to show they would “more likely than not” be

tortured by or with the acquiescence of government officials.

8 C.F.R. §§ 1208.16(c), 1208.18(a). The agency reasonably

concluded that Garcia did not establish a likelihood of

torture because he was attacked decades earlier, he had

remained unharmed in Guatemala for more than a decade after

he was attacked, his teenage children remain unharmed in his

hometown, and gang members had not threatened him with future

harm. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d

Cir. 2005) (“In the absence of solid support in the record

. . . [an applicant’s] fear is speculative at best.”); Mu-

Xing Wang v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir. 2003)

(providing that a likelihood of torture requires an applicant

7 to “establish that there is greater than a fifty percent

chance . . . that he will be tortured upon return to his . . .

country of origin”). Because Garcia failed to establish a

likelihood of torture, we do not reach the agency’s

alternative finding that he did not demonstrate the requisite

government acquiescence to torture. See 8 C.F.R.

§§ 1208.16(c), 1208.18(a); see also Bagamasbad, 429 U.S. at

25.

Continuance

Garcia argues that the agency abused its discretion and

violated due process by failing to grant a continuance for a

psychologist to evaluate him. We review the agency’s denial

of a continuance for abuse of discretion, Morgan v. Gonzales,

445 F.3d 549, 551 (2d Cir. 2006), and constitutional claims

de novo, Gjerjaj v. Holder, 691 F.3d 288, 292 (2d Cir. 2012).

An IJ “may grant a motion for continuance for good cause

shown,” 8 C.F.R. § 1003.29, and only “abuse[s] his discretion

in denying a continuance if (1) his decision rests on an error

of law (such as the application of the wrong legal principle)

or a clearly erroneous factual finding or (2) his decision—

though not necessarily the product of a legal error or a

clearly erroneous factual finding—cannot be located within

8 the range of permissible decisions,” Morgan, 445 F.3d at 551–

52 (quotation marks and brackets omitted). “Parties claiming

denial of due process in immigration cases must, in order to

prevail, allege some cognizable prejudice fairly attributable

to the challenged process.” Garcia-Villeda v. Mukasey, 531

F.3d 141, 149 (2d Cir. 2008) (quotation marks omitted). “In

order . . . to show . . . actual prejudice, [a petitioner]

must make a prima facie showing that he would have been

eligible for the relief and that he could have made a strong

showing in support of his application.” Rabiu v. INS, 41

F.3d 879, 882–83 (2d Cir. 1994).

The agency did not abuse its discretion or violate due

process in denying a continuance because, contrary to

Garcia’s argument, a psychological report diagnosing him with

PTSD and ADHD would not have changed the outcome of his case

by excusing the untimely filing of his asylum application,

demonstrating his incompetence to proceed, or establishing

his eligibility for humanitarian asylum. See Morgan, 445

F.3d at 551–52; Rabiu, 41 F.3d at 882–83; cf. Elbahja v.

Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (concluding that an

IJ does not abuse his discretion by denying a continuance

sought to pursue relief that is speculative). First, the

9 agency did not rely on the untimeliness of Garcia’s asylum

application to deny relief. Second, Garcia’s attorney never

expressed concern with his competency and the record did not

include indicia of mental incompetence, such as the

“inability to understand and respond to questions, the

inability to stay on topic, . . . a high level of

distraction[,] . . . [or] evidence of mental illness.”

Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (B.I.A. 2011).

Third, Garcia was not eligible for humanitarian asylum

because he failed to establish that he suffered past

persecution on account of a protected ground. See 8 C.F.R.

§ 1208.13(b)(1)(iii) (humanitarian asylum provision); Kone v.

Holder, 596 F.3d 141, 153 (2d Cir. 2010) (recognizing

“humanitarian asylum’s foundational requirement that the

applicant must herself establish past persecution and herself

be a refugee”). Accordingly, the agency did not abuse its

discretion or violate Garcia’s due process rights in denying

a continuance. See Morgan, 445 F.3d at 551-52; Garcia-

Villeda, 531 F.3d at 149.

10 For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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