Giron-Salinas v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: June 15, 2023
• Docket: 20-3950
• Status: Unpublished

Opinion

20-3950 Giron-Salinas v. Garland BIA Bain, IJ A206 022 354 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 15th day of June, two thousand twenty- 4 three. 5 6 PRESENT: 7 8 RICHARD C. WESLEY, 9 RICHARD J. SULLIVAN, 10 MYRNA PÉREZ, 11 Circuit Judges. 12 _____________________________________ 13 14 JAIRON NEHEMIAS GIRON-SALINAS, 15 16 Petitioner, 17 18 v. 20-3950 19 NAC 20 MERRICK B. GARLAND, UNITED STATES 21 ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 1 For Petitioner: Nicholas John Mundy, Brooklyn, NY. 2 3 For Respondent: Brian M. Boynton, Acting Assistant Attorney 4 General; Linda S. Wernery, Assistant Director; 5 Susan Bennett Green, Senior Litigation 6 Counsel, Office of Immigration Litigation, 7 United States Department of Justice, 8 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 Jairon Nehemias Giron-Salinas, a native and citizen of Guatemala, seeks

13 review of a decision of the BIA that reversed a decision of an Immigration Judge

14 (“IJ”) and denied his application for asylum, withholding of removal, and

15 protection under the Convention Against Torture (“CAT”). In re Jairon Nehemias

16 Giron-Salinas, No. A206 022 354 (B.I.A. Nov. 9, 2020), rev’g No. A206 022 354

17 (Immig. Ct. N.Y.C. June 19, 2018). We assume the parties’ familiarity with the

18 underlying facts and procedural history.

19 When the BIA reverses an IJ’s grant of relief, we review the BIA’s decision

20 as the final agency determination. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

21 Cir. 2005). We review the agency’s findings of fact for substantial evidence and

2 1 conclusions of law de novo. See id.; see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he

2 administrative findings of fact are conclusive unless any reasonable adjudicator

3 would be compelled to conclude to the contrary.”).

4 I. Jurisdiction

5 As an initial matter, we decline to consider Giron-Salinas’s jurisdictional

6 argument, which was not raised before the BIA. Lin Zhong v. U.S. Dep’t of Just.,

7 480 F.3d 104, 123 (2d Cir. 2007) (“[U]sually . . . issues not raised to the BIA will not

8 be examined by the reviewing court.”). In any event, Giron-Salinas’s challenge to

9 the IJ’s jurisdiction is based on a reading of Niz-Chavez v. Garland, 141 S. Ct. 1474

10 (2021), which has been foreclosed by our decisions in Banegas Gomez v. Barr, 922

11 F.3d 101, 110–12 (2d Cir. 2019) and Chery v. Garland, 16 F.4th 980, 987 (2d Cir. 2021).

12 II. Asylum and Withholding of Removal

13 With respect to asylum and withholding of removal, we agree with the

14 BIA’s determination that Giron-Salina did not meet his burden to establish

15 eligibility for either of these forms of relief. In order to obtain asylum or

16 withholding of removal, an applicant must establish past persecution or a fear of

17 future persecution and that “race, religion, nationality, membership in a particular

18 social group, or political opinion was or will be at least one central reason for 3 1 persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);

2 Quituizaca v. Garland, 52 F.4th 103, 105–06 (2d Cir. 2022) (deferring to BIA’s

3 application of the “one[-]central[-]reason” standard to withholding of removal).

4 To constitute a cognizable particular social group, a group must be “(1) composed

5 of members who share a common immutable characteristic, (2) defined with

6 particularity, and (3) socially distinct within the society in question.” Paloka v.

7 Holder, 762 F.3d 191, 196 (2d Cir. 2014) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.

8 227, 237 (B.I.A. 2014)); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir.

9 2007).

10 Giron-Salinas’s proposed group – “Guatemalans of school age who are

11 unable to attend school due to gang violence or gang conscription,” Certified

12 Admin. Record at 3 – is not socially distinct or sufficiently particular. Giron-

13 Salinas did not demonstrate that Guatemalan society perceives school-aged

14 children targeted by gangs, and thus unable to attend school, to be a distinct social

15 group. See Paloka, 762 F.3d at 196 (“[I]n determining particularity and social

16 distinction what matters is whether society as a whole views a group as socially

17 distinct, not the persecutor’s perception.”). Moreover, Giron-Salinas’s proposed

18 group is impermissibly circular. See id. (“Persecutory conduct aimed at a social 4 1 group cannot alone define the group, which must exist independently of the

2 persecution.”); cf. Ucelo-Gomez, 509 F.3d at 73 (“When the harm visited upon

3 members of a group is attributable to the incentives presented to ordinary

4 criminals rather than to persecution, the scales are tipped away from considering

5 those people a ‘particular social group’ within the meaning of the INA.”).

6 III. CAT Protection

7 The BIA also provided sufficiently cogent reasons for its determination that

8 the IJ had clearly erred in determining that Giron-Salina was eligible for CAT

9 relief. See Wu Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016). A CAT applicant has

10 the burden to show that he would “more likely than not” be tortured in the

11 proposed country of removal. See 8 C.F.R. § 1208.16(c)(2). “Torture is defined as

12 any act by which severe pain or suffering, whether physical or mental, is

13 intentionally inflicted on a person” by, or at the instigation of, or with the consent

14 or acquiescence of, any person acting in an official capacity. Id. § 1208.18(a)(1); see

15 also Garcia-Aranda v. Garland, 53 F.4th 752, 759 (2d Cir. 2022). In determining

16 whether torture is more likely than not, the agency is required to consider evidence

17 of past torture and country conditions. 8 C.F.R. § 1208.16(c)(3).

18 Here, the BIA reasonably determined that Giron-Salinas’s testimony 5 1 regarding his past experiences with gangs as a school-aged child – as well as

2 country-conditions evidence concerning crime and gang violenceis insufficient to

3 demonstrate that he is more likely than not to be tortured as an adult upon his

4 return to Guatemala. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003)

5 (“[W]hile Wang’s testimony as well as some of his ‘country conditions’

6 documents . . . indicate that some prisoners in China have been tortured, Wang

7 has in no way established that someone in his particular alleged circumstances is

8 more likely than not to be tortured if imprisoned in China.” (citation and emphasis

9 omitted)); see also Mu Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005)

10 (requiring “particularized evidence” beyond general country conditions to

11 support a CAT claim).

12 For the foregoing reasons, the petition for review is DENIED. All pending

13 motions and applications are DENIED and stays VACATED.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court