19-2798 Gonzalez-Carias v. Garland BIA Straus, IJ A206 711 528/529 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 17th day of May, two thousand twenty-one. 5 6 PRESENT: 7 REENA RAGGI, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 CLAUDIA LICETH GONZALEZ-CARIAS, 14 JOXAN ADALI GONZALES-CARIAS 15 Petitioners, 16 17 v. 19-2798 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Glenn L. Formica, FORMICA, P.C., 25 New Haven, CT 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Leslie McKay, Margot L. 1 Carter, Senior Litigation Counsel, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC
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 DENIED.
9 Petitioners Claudia Liceth Gonzalez-Carias (“Claudia”)
10 and Joxan Adali Gonzales-Carias (“Joxan”), natives and
11 citizens of Honduras, seek review of an August 7, 2019
12 decision of the BIA affirming a January 2, 2018 decision of
13 an Immigration Judge (“IJ”) denying asylum, withholding of
14 removal, and protection under the Convention Against Torture
15 (“CAT”). In re Claudia Liceth Gonzalez-Carias, Joxan Adali
16 Gonzales-Carias, No. A 206 711 528/529 (B.I.A. Aug. 7, 2019),
17 aff’g No. A 206 711 528/529 (Immig. Ct. Hartford Jan. 2, 2018).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We review both the BIA’s and IJ’s decisions for the “sake
21 of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
22 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
23 review are well established. See Yanqin Weng v. Holder, 562
2 1 F.3d 510, 513, 516 (2d Cir. 2009) (reviewing factual findings
2 for substantial evidence and questions of law and application
3 of law to facts de novo); Edimo-Doualla v. Gonzales, 464 F.3d
4 276, 282–83 (2d Cir. 2006) (applying substantial evidence
5 standard to nexus determination). “[T]he administrative
6 findings of fact are conclusive unless any reasonable
7 adjudicator would be compelled to conclude to the contrary.”
8 8 U.S.C. § 1252(b)(4)(B).
9 Joxan alleged that he was persecuted and feared
10 persecution and torture by gangs on account of his membership
11 in a particular social group of youth targeted for gang
12 recruitment. Claudia alleged that the gangs targeted her on
13 account of her membership in a particular social group of
14 Joxan’s family. We address only Claudia’s family-based claim
15 because Joxan conceded on appeal to the BIA that he had not
16 stated a particular social group. See Lin Zhong v. U.S.
17 Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (generally
18 requiring exhaustion of issues before the BIA).
19 To obtain asylum or withholding of removal, an applicant
20 must establish past persecution or a fear of future
21 persecution on account of a protected ground. See 8 U.S.C.
3 1 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b),
2 1208.16(b)(1), (2). The protected ground must be “at least
3 one central reason” for the claimed persecution, and the
4 applicant must provide direct or circumstantial evidence of
5 the persecutor’s motives. 8 U.S.C. § 1158(b)(1)(B)(i)
6 (asylum); see also id. § 1231(b)(3)(A) (withholding); Matter
7 of C-T-L-, 25 I. & N. Dec. 341, 346–48 (B.I.A. 2010) (holding
8 that the “one central reason” standard also applies to
9 withholding of removal); INS v. Elias-Zacarias, 502 U.S. 478,
10 483 (1992) (requiring “some evidence” of motive, “direct or
11 circumstantial”). When a social group is based on family
12 ties and “animus against the family per se is not implicated,
13 the question becomes what motive or motives cause the
14 persecutor to seek to harm members of an individual’s family.”
15 Matter of L-E-A-, 27 I. & N. Dec. 40, 45 (B.I.A. 2017),
16 overruled in part on other grounds in Matter of L-E-A-, 27 I.
17 & N. Dec. 581, 596–97 (A.G. 2019). A “nexus [between the
18 alleged harm and a protected ground] is not established simply
19 because a particular social group of family members exists
20 and the family members experience harm.” Id. “The protected
21 trait, in this case membership in the . . . family, cannot
4 1 play a minor role — that is, it cannot be incidental [or]
2 tangential . . . to another reason for harm.” Id. at 44
3 (internal quotation marks omitted). Rather, there must be
4 some indication “that the persecutors had . . . animus against
5 the family or the [applicant] based on their biological ties,
6 historical status, or other features unique to that family
7 unit.” Id. at 47.
8 But substantial evidence supports the agency’s finding
9 that Claudia failed to demonstrate the requisite nexus to her
10 particular social group of her family. The gang members
11 threatened to kill Claudia and her family if Joxan did not
12 work for them. Neither Claudia nor Joxan testified that the
13 gang had any motivation other than increasing its ranks.
14 Elias-Zacarias, 502 U.S. at 483 (requiring “some evidence” of
15 motive “direct or circumstantial”). Harm resulting from
16 general criminal violence is not harm on account of a
17 protected ground. See Melgar de Torres v. Reno, 191 F.3d
18 307, 313–14 (2d Cir. 1999) (“general crime conditions” and
19 “random violence” cannot support a claim to asylum); Ucelo-
20 Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (rejecting
21 claim based on perceived wealth and political opinion where
5 1 putative persecutors had no “motive other than increasing
2 their own wealth at the expense of the petitioners.” (internal
3 quotation marks omitted)). Accordingly, because Claudia
4 failed to demonstrate a nexus between the harm she suffered
5 and fears and her membership in her family, the agency did
6 not err in finding that she failed to establish her
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19-2798 Gonzalez-Carias v. Garland BIA Straus, IJ A206 711 528/529 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 17th day of May, two thousand twenty-one. 5 6 PRESENT: 7 REENA RAGGI, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 CLAUDIA LICETH GONZALEZ-CARIAS, 14 JOXAN ADALI GONZALES-CARIAS 15 Petitioners, 16 17 v. 19-2798 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Glenn L. Formica, FORMICA, P.C., 25 New Haven, CT 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Leslie McKay, Margot L. 1 Carter, Senior Litigation Counsel, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC
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 DENIED.
9 Petitioners Claudia Liceth Gonzalez-Carias (“Claudia”)
10 and Joxan Adali Gonzales-Carias (“Joxan”), natives and
11 citizens of Honduras, seek review of an August 7, 2019
12 decision of the BIA affirming a January 2, 2018 decision of
13 an Immigration Judge (“IJ”) denying asylum, withholding of
14 removal, and protection under the Convention Against Torture
15 (“CAT”). In re Claudia Liceth Gonzalez-Carias, Joxan Adali
16 Gonzales-Carias, No. A 206 711 528/529 (B.I.A. Aug. 7, 2019),
17 aff’g No. A 206 711 528/529 (Immig. Ct. Hartford Jan. 2, 2018).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We review both the BIA’s and IJ’s decisions for the “sake
21 of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
22 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
23 review are well established. See Yanqin Weng v. Holder, 562
2 1 F.3d 510, 513, 516 (2d Cir. 2009) (reviewing factual findings
2 for substantial evidence and questions of law and application
3 of law to facts de novo); Edimo-Doualla v. Gonzales, 464 F.3d
4 276, 282–83 (2d Cir. 2006) (applying substantial evidence
5 standard to nexus determination). “[T]he administrative
6 findings of fact are conclusive unless any reasonable
7 adjudicator would be compelled to conclude to the contrary.”
8 8 U.S.C. § 1252(b)(4)(B).
9 Joxan alleged that he was persecuted and feared
10 persecution and torture by gangs on account of his membership
11 in a particular social group of youth targeted for gang
12 recruitment. Claudia alleged that the gangs targeted her on
13 account of her membership in a particular social group of
14 Joxan’s family. We address only Claudia’s family-based claim
15 because Joxan conceded on appeal to the BIA that he had not
16 stated a particular social group. See Lin Zhong v. U.S.
17 Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (generally
18 requiring exhaustion of issues before the BIA).
19 To obtain asylum or withholding of removal, an applicant
20 must establish past persecution or a fear of future
21 persecution on account of a protected ground. See 8 U.S.C.
3 1 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b),
2 1208.16(b)(1), (2). The protected ground must be “at least
3 one central reason” for the claimed persecution, and the
4 applicant must provide direct or circumstantial evidence of
5 the persecutor’s motives. 8 U.S.C. § 1158(b)(1)(B)(i)
6 (asylum); see also id. § 1231(b)(3)(A) (withholding); Matter
7 of C-T-L-, 25 I. & N. Dec. 341, 346–48 (B.I.A. 2010) (holding
8 that the “one central reason” standard also applies to
9 withholding of removal); INS v. Elias-Zacarias, 502 U.S. 478,
10 483 (1992) (requiring “some evidence” of motive, “direct or
11 circumstantial”). When a social group is based on family
12 ties and “animus against the family per se is not implicated,
13 the question becomes what motive or motives cause the
14 persecutor to seek to harm members of an individual’s family.”
15 Matter of L-E-A-, 27 I. & N. Dec. 40, 45 (B.I.A. 2017),
16 overruled in part on other grounds in Matter of L-E-A-, 27 I.
17 & N. Dec. 581, 596–97 (A.G. 2019). A “nexus [between the
18 alleged harm and a protected ground] is not established simply
19 because a particular social group of family members exists
20 and the family members experience harm.” Id. “The protected
21 trait, in this case membership in the . . . family, cannot
4 1 play a minor role — that is, it cannot be incidental [or]
2 tangential . . . to another reason for harm.” Id. at 44
3 (internal quotation marks omitted). Rather, there must be
4 some indication “that the persecutors had . . . animus against
5 the family or the [applicant] based on their biological ties,
6 historical status, or other features unique to that family
7 unit.” Id. at 47.
8 But substantial evidence supports the agency’s finding
9 that Claudia failed to demonstrate the requisite nexus to her
10 particular social group of her family. The gang members
11 threatened to kill Claudia and her family if Joxan did not
12 work for them. Neither Claudia nor Joxan testified that the
13 gang had any motivation other than increasing its ranks.
14 Elias-Zacarias, 502 U.S. at 483 (requiring “some evidence” of
15 motive “direct or circumstantial”). Harm resulting from
16 general criminal violence is not harm on account of a
17 protected ground. See Melgar de Torres v. Reno, 191 F.3d
18 307, 313–14 (2d Cir. 1999) (“general crime conditions” and
19 “random violence” cannot support a claim to asylum); Ucelo-
20 Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (rejecting
21 claim based on perceived wealth and political opinion where
5 1 putative persecutors had no “motive other than increasing
2 their own wealth at the expense of the petitioners.” (internal
3 quotation marks omitted)). Accordingly, because Claudia
4 failed to demonstrate a nexus between the harm she suffered
5 and fears and her membership in her family, the agency did
6 not err in finding that she failed to establish her
7 eligibility for asylum or withholding of removal. See
8 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
9 Claudia and Joxan have abandoned their CAT claim by
10 failing to argue it in their brief. See Yueqing Zhang v.
11 Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). Our review
12 of the record does not reveal a basis to remand the CAT claim.
13 Claudia and Joxan alleged a continuing fear based on the
14 murder of Joxan’s cousin and threats against Claudia’s
15 daughters. But their testimony and evidence did not show who
16 killed Joxan’s cousin or why, and they provided no
17 corroboration about the threats despite presenting supporting
18 letters from the family members caring for Claudia’s
19 daughters. Applicants cannot meet their burden if they do
20 not provide reasonably available corroboration. See 8 U.S.C.
21 § 1158(b)(1)(B)(ii); see also Jian Hu Shao v. Mukasey, 546
6 1 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner bears
2 the burden of proof, . . . failure to adduce evidence can
3 itself constitute the ‘substantial evidence’ necessary to
4 support the agency's challenged decision.”); Jian Xing Huang
5 v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence
6 of solid support in the record . . . [the applicant’s] fear
7 is speculative at best.”).
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court