23-7916 Gonzalez Gonzalez v. Blanche BIA
Mungoven, IJ
A220 221 327/328
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 13th day of April, two thousand 4 twenty-six. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 JOHN M. WALKER, JR., 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 DIANA CAROLINA GONZALEZ 15 GONZALEZ, A.S.T. G., 16 Petitioners, 17 18 v. 23-7916 19 NAC 20 TODD BLANCHE, ACTING UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent.* 23 _____________________________________ 24 FOR PETITIONERS: Michael Borja, Borja Law Firm, P.C., Jackson
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1 Heights, NY. 2 3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 4 Attorney General; Greg D. Mack, Senior 5 Litigation Counsel; Shahrzad Baghai, Trial 6 Attorney, 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 Petitioners Diana Carolina Gonzalez Gonzalez and her minor daughter, 13 both natives and citizens of Ecuador, seek review of a November 1, 2023, decision 14 of the BIA affirming a September 28, 2022, decision of an Immigration Judge (“IJ”) 15 denying asylum, withholding of removal, and relief under the Convention 16 Against Torture (“CAT”). 1 In re Gonzalez Gonzalez, Nos. A 220 221 327/328 (B.I.A. 17 Nov. 1, 2023), aff’g Nos. A 220 221 327/328 (Immigr. Ct. N.Y.C. Sept. 28, 2022). We 18 assume the parties’ familiarity with the underlying facts and procedural history.
* The Clerk of Court is directed to amend the caption as set out above to reflect the abbreviation of the minor Petitioner’s name.
1 We principally refer to Gonzalez Gonzalez because both Petitioners’
applications were based on her affidavit.
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1 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan 2 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding under 3 the substantial evidence standard, and we review questions of law and the 4 application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 5 2018). “[T]he administrative findings of fact are conclusive unless any reasonable 6 adjudicator would be compelled to conclude to the contrary[.]” 8 U.S.C. 7 § 1252(b)(4)(B). 8 I. Asylum and Withholding of Removal 9 To establish eligibility for asylum and withholding of removal, Gonzalez 10 Gonzalez had to show that she suffered past persecution or had a well-founded 11 fear of future persecution and that a protected ground—here, membership in a 12 particular social group—“was or will be at least one central reason” for the 13 persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see id. § 1231(b)(3)(A); 8 C.F.R. 14 §§ 1208.13(b), 1208.16(b); Quituizaca v. Garland, 52 F.4th 103, 109–14 (2d Cir. 2022) 15 (holding that the “one central reason” standard also applies to withholding of 16 removal). 2 To constitute persecution, abuse must be sufficiently severe. See Mei
2 Gonzalez Gonzalez’s argument that a different nexus standard applies to withholding of removal overlooks this binding precedent.
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1 Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (“[P]ersecution is an extreme 2 concept that does not include every sort of treatment our society regards as 3 offensive.” (quotation marks and citation omitted)). It must also be inflicted by 4 government officials or by private actors whom the government is “unable or 5 unwilling to control.” Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (quoting 6 Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015)). Absent past persecution, an 7 applicant must establish that her fear of future persecution “is objectively 8 reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004), superseded 9 in part by statute on other grounds, 8 U.S.C. § 1158(b)(1)(B)(iii). 10 The BIA found waived three issues that, taken together, are dispositive of 11 asylum and withholding of removal: whether Gonzalez Gonzalez’s past abuse 12 rose to the level of persecution, whether she had an objectively reasonable fear of 13 future persecution, and whether the Ecuadorian government was unable or 14 unwilling to control her abusers. See 8 C.F.R. §§ 1208.13(b), 1208.16(b); Scarlett, 15 957 F.3d at 328; Ramsameachire, 357 F.3d at 178. In her brief, Gonzalez Gonzalez 16 does not acknowledge or challenge the BIA’s waiver findings—which were 17 correct, as she challenged only the IJ’s nexus findings in her brief to the BIA. 18 These issues are thus both unexhausted and abandoned, and we deny the petition
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1 as to asylum and withholding of removal on that basis. See Vera Punin v. Garland, 2 108 F.4th 114, 124 (2d Cir. 2024) (“[W]hen an argument made to this Court cannot 3 be closely matched up with a specific argument made to the BIA, it has not been 4 properly exhausted and we cannot hear it.”); Debique v. Garland, 58 F.4th 676, 684 5 (2d Cir. 2023) (“We consider abandoned any claims not adequately presented in 6 an appellant’s brief, and an appellant’s failure to make legal or factual arguments 7 constitutes abandonment.” (quotation marks and citation omitted)); Prabhudial v. 8 Holder, 780 F.3d 553, 555-56 (2d Cir. 2015) (holding that “[w]here the agency 9 properly applies its own waiver rule,” our “review is limited to whether the BIA 10 erred in deeming the argument waived” (quotation marks and citation omitted)); 11 see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and 12 agencies are not required to make findings on issues the decision of which is 13 unnecessary to the results they reach.”). 14 Even if we were to reach the BIA’s additional grounds for its decision, there 15 was no error in the agency’s conclusion that Gonzalez Gonzalez’s proposed 16 particular social group of “individuals who resist gang recruitment” is not 17 cognizable, and substantial evidence supports the agency’s conclusion that 18 membership in such a group was not one central reason for Gonzalez Gonzalez’s
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1 abuse. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (noting that 2 cognizability of a particular social group is a legal determination reviewed de 3 novo); Edimo-Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir. 2006) (reviewing nexus 4 determination for substantial evidence). 5 A cognizable social group must have “members who share a common 6 immutable characteristic,” be “defined with particularity,” and be “socially 7 distinct within the society in question.” Paloka, 762 F.3d at 196 (quoting In re M– 8 E–V–G–, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). Particularity requires that the 9 group be “defined by characteristics that provide a clear benchmark for 10 determining who falls within the group” such that the group is not “amorphous, 11 overbroad, diffuse, or subjective.” Id. (quoting In re M–E–V–G–, 26 I. & N. Dec. at 12 239). Social distinction requires that “society as a whole views a group as socially 13 distinct.” Id. (citing In re M–E–V–G–, 26 I. & N. Dec. at 242). Gonzalez Gonzalez 14 does not identify evidence supporting the conclusion that her proposed group of 15 “individuals who resist gang recruitment” is perceived as a distinct group in 16 Ecuadorian society, or that there is a clear consensus about what conduct would 17 constitute “resistance” to a gang. Instead, she argues that her proposed group is 18 comparable to a group consisting of witnesses who have testified publicly against
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1 gang members—but she does not explain why resisting gang recruitment (which 2 could include a variety of actions) has the same kind of clearly defined boundaries 3 as public testimony. 3 See Matter of S-E-G-, 24 I. & N. Dec. 579, 584–88 (B.I.A. 2008) 4 (holding that particular social group of El Salvadoran youth who refuse gang 5 recruitment is not cognizable because it is not defined with particularity or socially 6 distinct). 7 Moreover, the record does not compel the conclusion that Gonzalez 8 Gonzalez’s membership in such a group was one central reason for her abuse. 9 “The applicant must . . . show, through direct or circumstantial evidence, that the 10 persecutor’s motive to persecute arises from [a protected ground].” Yueqing 11 Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). General crime conditions are 12 not grounds for asylum and withholding of removal. See Melgar de Torres v. Reno, 13 191 F.3d 307, 313–14 (2d Cir. 1999). Gonzalez Gonzalez alleged that gang 14 members assaulted and threatened her because they wanted her partner’s brother
3 In addition, Gonzalez Gonzalez significantly mischaracterizes the record by asserting that her circumstances are similar to the public testimony case because she participated in the “persecution” of “the criminals who murdered her mother.” Pet’rs’ Br. at 8. Gonzalez Gonzalez’s claim was that she was assaulted by gang members who wanted to recruit her partner’s brother and that the brother was murdered after she left the country; she did not allege that her mother was murdered or that she participated in a criminal investigation.
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1 to join the gang, and she does not explain how that motive differs from the general 2 criminal motive to expand a gang’s ranks and assert its authority. See Quituizaca, 3 52 F.4th at 114–16 (holding that record did not compel the conclusion that a 4 protected ground was “one central reason” for gang abuse when circumstances 5 suggested that the gang was motivated by ordinary criminal incentives); see also 6 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited 7 upon members of a group is attributable to the incentives presented to ordinary 8 criminals rather than to persecution, the scales are tipped away from considering 9 those people a ‘particular social group’ within the meaning of the [Immigration 10 and Nationality Act].”). 11 II. CAT 12 A CAT applicant has the burden to establish that she will “more likely than 13 not” be tortured “by, or at the instigation of, or with the consent or acquiescence 14 of, a public official acting in an official capacity or other person acting in an official 15 capacity.” 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). “Acquiescence of a public 16 official requires that the public official, prior to the activity constituting torture, 17 have awareness of such activity and thereafter breach his or her legal 18 responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7); see
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1 Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“In terms of state action, 2 torture requires only that government officials know of or remain willfully blind 3 to an act and thereafter breach their legal responsibility to prevent it.”). 4 Gonzalez Gonzalez first argues that the agency erred in requiring her to 5 demonstrate that the government would acquiesce to her torture. However, as 6 set forth above, the CAT regulations expressly define torture as harm “inflicted 7 by, or at the instigation of, or with the consent or acquiescence of, a public official 8 acting in an official capacity[.]” 8 C.F.R. § 1208.18(a)(1). That standard appears 9 to be distinct from the unable-or-unwilling standard applicable to asylum and 10 withholding of removal, and Gonzalez Gonzalez has not fleshed out an argument 11 to the contrary, providing only a partial citation to an out-of-circuit decision that 12 does not discuss the CAT regulations or government acquiescence to torture. 13 Pet’rs’ Br. at 12 (citing Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020)); see Scarlett, 957 14 F.3d at 336 (leaving it to BIA on remand to determine “how the ‘unable’ prong of 15 the unwilling-or-unable standard, as applicable to withholding claims, might 16 translate to identifying government acquiescence in torture under the CAT”); see 17 also Matter of M-S-I-, 29 I. & N. Dec. 61, 64 (B.I.A. 2025) (“[T]he acquiescence 18 standard for CAT protection differs from the unable-or-unwilling standard for
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1 asylum and withholding of removal; the potential for private actor violence 2 coupled with a speculation that police cannot or will not help is insufficient to 3 prove acquiescence.”). 4 Otherwise, Gonzalez Gonzalez asserts that there was sufficient evidence of 5 state action. When “the agency’s conclusion finds support in record evidence, [a 6 petitioner] cannot secure CAT relief by pointing to conflicting evidence that might 7 support—but not compel—a different conclusion.” Quintanilla-Mejia v. Garland, 8 3 F.4th 569, 592 (2d Cir. 2021). The record supports the agency’s conclusion that 9 the government would not acquiesce to Gonzalez Gonzalez’s torture given the 10 arrest of a suspect in her partner’s brother’s murder following his family’s report, 11 and country conditions evidence of government efforts to curb gangs. Gonzalez 12 Gonzalez’s unsupported assertion that “the testimony and provided 13 evidence . . . shows the government was responsible for the issue by not protecting 14 her after her assistance,” Pet’rs’ Br. at 13, does not compel a contrary conclusion 15 and instead contradicts the record, as Gonzalez Gonzalez never alleged that she 16 participated in reports to the police or otherwise assisted the government. 17 Given the defects in briefing by Petitioners’ counsel, Michael Borja, a copy 18 of this order will be forwarded to this Court’s Grievance Panel. As outlined
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1 above, the Petitioners’ brief does not address dispositive issues, provides 2 insufficient citations for arguments, and misrepresents the factual record. See 3 Fed. R. App. P. 28(a). 4 For the foregoing reasons, the petition for review is DENIED. All pending 5 motions and applications are DENIED and stays VACATED.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court