17-1803 Giron-Ardon v. Barr BIA Montante, IJ A206 635 986/987
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 22nd day of May, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DEBRA ANN LIVINGSTON, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 ANDRIANA LISSETTE GIRON-ARDON, AKA 14 ADRIANA LISSETTE GIRON-ARDON, IVANA 15 MARIA DE JESUS GIRON-ARDON 16 Petitioners, 17 18 v. 17-1803 19 NAC 20 WILLIAM P. BARR 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONERS: Stephen K. Tills, Orchard Park, 26 NY. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; Justin R. 30 Markel, Senior Litigation Counsel; 31 Brooke M. Maurer, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED in part and DENIED in part.
9 Petitioners Andriana Lissette Giron-Ardon (“Giron-
10 Ardon”), and her minor daughter, Ivana Maria De Jesus Giron-
11 Ardon, natives and citizens of Guatemala, seek review of a
12 May 9, 2017 decision of the BIA affirming an October 18, 2016,
13 decision of an Immigration Judge (“IJ”) denying their
14 applications for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Andriana
16 Lissette Giron-Ardon and Ivana Maria De Jesus Giron-Ardon,
17 Nos. A 206 635 986/987 (B.I.A. May 9, 2017), aff’g Nos. A 206
18 635 986/987 (Immig. Ct. Buffalo Oct. 18, 2016). We assume
19 the parties’ familiarity with the underlying facts,
20 procedural history, and issues raised on appeal.
21 Giron-Ardon challenges the agency’s denial of asylum as
22 time barred and its denial of withholding of removal for
23 failure to establish a nexus to a protected ground. Under
24 the circumstances of this case, we have considered the IJ’s
2 1 decision as supplemented and modified by the BIA. See Yan
2 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
3 applicable standards of review are well established. See
4 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
5 510, 513 (2d Cir. 2009). We review the agency’s findings of
6 fact under the substantial evidence standard. See Hong Fei
7 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). Under this
8 standard, “[w]e treat factual findings as ‘conclusive unless
9 any reasonable adjudicator would be compelled to conclude to
10 the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
11 Timeliness of Asylum Application
12 We dismiss the petition as to asylum. Giron-Ardon did
13 not exhaust her challenge to the timeliness finding on appeal
14 to the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
15 104, 123 (2d Cir. 2008) (holding that issue exhaustion is
16 mandatory). Moreover, our jurisdiction to review the denial
17 of an asylum claim as untimely is limited to “constitutional
18 claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); see
19 8 U.S.C. § 1158(a)(3). Giron-Ardon has not identified any
20 such claims, as she argues only that the agency ignored
21 evidence that she filed her application in April 2015. There
3 1 is no legal error here, particularly as the agency considered
2 the application to be filed earlier, on March 27, 2015.
3 Nexus to a Protected Ground
4 In order to demonstrate eligibility for withholding of
5 removal, Giron-Ardon must establish that “race, religion,
6 nationality, membership in a particular social group, or
7 political opinion” was or will be at least one central reason
8 for her persecution. 8 U.S.C. § 1231(b)(3)(A); see also
9 Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010).
10 There may be “more than one motive for mistreatment, as long
11 as at least one central reason for the mistreatment is on
12 account of a protected ground.” Acharya v. Holder, 761 F.3d
13 289, 297 (2d Cir. 2014) (internal quotation marks omitted).
14 An applicant “must provide some evidence of [a persecutor’s
15 motives], direct or circumstantial.” INS v. Elias-Zacarias,
16 502 U.S. 478, 483 (1992); see also Manzur v. U.S. Dep’t of
17 Homeland Sec., 494 F.3d 281, 291 (2d Cir. 2007). The agency’s
18 findings regarding the persecutor’s motives and the nexus
19 between the harms and a petitioner’s protected status are
20 reviewed for substantial evidence. See Gjolaj v. Bureau of
21 Citizenship & Immigration Servs., 468 F.3d 140, 143 (2d Cir.
22 2006).
4 1 Giron-Ardon sought asylum and withholding of removal
2 based on her membership in the social groups of “cattle-
3 farmers/ranchers” (as argued to the BIA) or family (as implied
4 in her brief to this Court). Even assuming that these groups
5 are cognizable social groups, the agency reasonably
6 determined that Giron-Ardon failed to demonstrate that she
7 suffered past persecution or a well-founded fear of future
8 persecution on account of her membership in these groups since
9 she failed to provide any direct or circumstantial evidence
10 that she was or will be targeted for either reason. See
11 Elias-Zacarias, 502 U.S. at 483; see also Ucelo-Gomez v.
12 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm
13 visited upon members of a group is attributable to the
14 incentives presented to ordinary criminals rather than to
15 persecution, the scales are tipped away from considering
16 those people a ‘particular social group’. . . .”). Giron-
17 Ardon testified that unknown persons whom she presumed were
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17-1803 Giron-Ardon v. Barr BIA Montante, IJ A206 635 986/987
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 22nd day of May, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DEBRA ANN LIVINGSTON, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 ANDRIANA LISSETTE GIRON-ARDON, AKA 14 ADRIANA LISSETTE GIRON-ARDON, IVANA 15 MARIA DE JESUS GIRON-ARDON 16 Petitioners, 17 18 v. 17-1803 19 NAC 20 WILLIAM P. BARR 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONERS: Stephen K. Tills, Orchard Park, 26 NY. 27 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; Justin R. 30 Markel, Senior Litigation Counsel; 31 Brooke M. Maurer, Trial Attorney, 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED in part and DENIED in part.
9 Petitioners Andriana Lissette Giron-Ardon (“Giron-
10 Ardon”), and her minor daughter, Ivana Maria De Jesus Giron-
11 Ardon, natives and citizens of Guatemala, seek review of a
12 May 9, 2017 decision of the BIA affirming an October 18, 2016,
13 decision of an Immigration Judge (“IJ”) denying their
14 applications for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Andriana
16 Lissette Giron-Ardon and Ivana Maria De Jesus Giron-Ardon,
17 Nos. A 206 635 986/987 (B.I.A. May 9, 2017), aff’g Nos. A 206
18 635 986/987 (Immig. Ct. Buffalo Oct. 18, 2016). We assume
19 the parties’ familiarity with the underlying facts,
20 procedural history, and issues raised on appeal.
21 Giron-Ardon challenges the agency’s denial of asylum as
22 time barred and its denial of withholding of removal for
23 failure to establish a nexus to a protected ground. Under
24 the circumstances of this case, we have considered the IJ’s
2 1 decision as supplemented and modified by the BIA. See Yan
2 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
3 applicable standards of review are well established. See
4 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
5 510, 513 (2d Cir. 2009). We review the agency’s findings of
6 fact under the substantial evidence standard. See Hong Fei
7 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). Under this
8 standard, “[w]e treat factual findings as ‘conclusive unless
9 any reasonable adjudicator would be compelled to conclude to
10 the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
11 Timeliness of Asylum Application
12 We dismiss the petition as to asylum. Giron-Ardon did
13 not exhaust her challenge to the timeliness finding on appeal
14 to the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
15 104, 123 (2d Cir. 2008) (holding that issue exhaustion is
16 mandatory). Moreover, our jurisdiction to review the denial
17 of an asylum claim as untimely is limited to “constitutional
18 claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); see
19 8 U.S.C. § 1158(a)(3). Giron-Ardon has not identified any
20 such claims, as she argues only that the agency ignored
21 evidence that she filed her application in April 2015. There
3 1 is no legal error here, particularly as the agency considered
2 the application to be filed earlier, on March 27, 2015.
3 Nexus to a Protected Ground
4 In order to demonstrate eligibility for withholding of
5 removal, Giron-Ardon must establish that “race, religion,
6 nationality, membership in a particular social group, or
7 political opinion” was or will be at least one central reason
8 for her persecution. 8 U.S.C. § 1231(b)(3)(A); see also
9 Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010).
10 There may be “more than one motive for mistreatment, as long
11 as at least one central reason for the mistreatment is on
12 account of a protected ground.” Acharya v. Holder, 761 F.3d
13 289, 297 (2d Cir. 2014) (internal quotation marks omitted).
14 An applicant “must provide some evidence of [a persecutor’s
15 motives], direct or circumstantial.” INS v. Elias-Zacarias,
16 502 U.S. 478, 483 (1992); see also Manzur v. U.S. Dep’t of
17 Homeland Sec., 494 F.3d 281, 291 (2d Cir. 2007). The agency’s
18 findings regarding the persecutor’s motives and the nexus
19 between the harms and a petitioner’s protected status are
20 reviewed for substantial evidence. See Gjolaj v. Bureau of
21 Citizenship & Immigration Servs., 468 F.3d 140, 143 (2d Cir.
22 2006).
4 1 Giron-Ardon sought asylum and withholding of removal
2 based on her membership in the social groups of “cattle-
3 farmers/ranchers” (as argued to the BIA) or family (as implied
4 in her brief to this Court). Even assuming that these groups
5 are cognizable social groups, the agency reasonably
6 determined that Giron-Ardon failed to demonstrate that she
7 suffered past persecution or a well-founded fear of future
8 persecution on account of her membership in these groups since
9 she failed to provide any direct or circumstantial evidence
10 that she was or will be targeted for either reason. See
11 Elias-Zacarias, 502 U.S. at 483; see also Ucelo-Gomez v.
12 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm
13 visited upon members of a group is attributable to the
14 incentives presented to ordinary criminals rather than to
15 persecution, the scales are tipped away from considering
16 those people a ‘particular social group’. . . .”). Giron-
17 Ardon testified that unknown persons whom she presumed were
18 gang members murdered her brother, threatened her sisters
19 over the phone, threatened one sister in person, shot at her
20 and her daughter, robbed her at knifepoint, threatened her
21 partner and his family, and killed some of her partner’s
22 family. But she did not testify that the same individuals
5 1 were responsible for all of the harm or that the perpetrators
2 said anything to her and her family from which to infer that
3 they were being targeted on account of their status as cattle-
4 farmers and ranchers. While she testified that the people
5 who threatened her sister said they would kill her brother
6 and other family members, Giron-Ardon said that she did not
7 know if those people were the same ones who threatened her.
8 Giron-Ardon never received threats on the phone, and when she
9 experienced direct harm (the robbery and the shooting), the
10 assailants did not mention her familial ties when targeting
11 her. Because Giron-Ardon failed to demonstrate a nexus
12 between her harm or fear of harm and a protected ground, the
13 agency did not err in denying withholding of removal.
14 8 U.S.C. § 1231(b)(3)(A). Ultimately, Giron-Ardon’s fears
15 stem from general crime conditions in Guatemala, and are not
16 due to some protected status.
17 For the foregoing reasons, the petition for review is
18 DISMISSED in part and DENIED in remaining part. As we have
19 completed our review, any stay of removal that the Court
20 previously granted in this petition is VACATED, and any
21 pending motion for a stay of removal in this petition is
22 DISMISSED as moot. Any pending request for oral argument in
6 1 this petition is DENIED in accordance with Federal Rule of
2 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
3 34.1(b).
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe 6 Clerk of Court