22-6157 Gonzalez v. Garland BIA Straus, IJ A208 484 627
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 2nd day of April, two thousand twenty- four.
PRESENT: JOSEPH F. BIANCO, STEVEN J. MENASHI, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________
JOSE M. GONZALEZ, Petitioner,
v. 22-6157 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Jon E. Jessen, Law Offices of Jon E. Jessen, LLC, Stamford, CT. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Sharon M. Clay, 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 Jose M. Gonzalez, a native and citizen of Guatemala, seeks review
of a March 9, 2022, decision of the BIA affirming a February 21, 2019, decision of
an Immigration Judge (“IJ”) denying his application for withholding of removal
and relief under the Convention Against Torture (“CAT”). In re Jose M. Gonzalez,
No. A 208 484 627 (B.I.A. Mar. 9, 2022), aff’g No. A 208 484 627 (Immig. Ct. Hartford
Feb. 21, 2019). We assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as modified by the BIA, i.e. minus the
credibility and corroboration findings that the BIA did not reach. See Xue Hong
Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). “[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). “Accordingly, 2 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.” Singh v. Garland, 11 F.4th 106, 113
(2d Cir. 2021) (internal quotation marks omitted). We review questions of law
and the application of law to fact de novo. See Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
Gonzalez alleged he was threatened, kidnapped, and attacked for dating the
ex-girlfriend of a gang member and he claimed that this harm was on account of
his membership in the particular social group of “well-known and famous
individuals targeted by gangs for personal revenge” because he was a wrestler
who medaled in international competitions. Petitioner’s Br. 23.
I. Withholding of Removal
An applicant for withholding of removal has the burden to establish past
persecution or “a clear probability of future persecution,” Jian Liang v. Garland, 10
F.4th 106, 112 (2d Cir. 2021) (quoting Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018)); see also 8 C.F.R. § 1208.16(b), and that “race, religion, nationality,
membership in a particular social group, or political opinion” is “one central
reason” for that persecution, 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R.
3 § 1208.16(b); Quituizaca v. Garland, 52 F.4th 103, 114 (2d Cir. 2022) (upholding BIA’s
application of asylum’s “one central reason” standard to withholding of removal).
“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) (internal quotation marks and citation omitted).
Gonzalez does not challenge the agency’s determination that he did not
establish that his membership in his proposed social group was “one central
reason” why gang members kidnapped and beat him. Accordingly, he has
abandoned review of this dispositive nexus determination. See Debique v.
Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not
adequately presented in an appellant’s brief, and an appellant’s failure to make
legal or factual arguments constitutes abandonment.”) (internal quotation marks
omitted).
Even if not abandoned, Gonzalez failed to establish that gang members beat
and kidnapped him on account of his membership in his particular social group.
He had the burden of providing “some evidence [], direct or circumstantial” that
he was attacked because of his group membership. INS v. Elias-Zacarias, 502 U.S.
4 478, 483 (1992); see Paloka, 762 F.3d at 196–97 (“Whether the requisite nexus exists
depends on the views and motives of the persecutor.”) (internal quotation marks
omitted). To the contrary, Gonzalez testified that the “main reason” gang
members targeted him was because he was dating the ex-girlfriend of a gang
member, a motivation based on a personal dispute, not on account of his status as
a well-known wrestler. Certified Admin. R. 88.
II. CAT Relief
To be eligible for CAT relief, an applicant has the burden to show that he
will “more likely than not” be tortured by or with the acquiescence of government
officials. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). “In assessing whether it is
more likely than not that an applicant would be tortured . . . all evidence relevant
to the possibility of future torture shall be considered, including . . . [e]vidence of
past torture inflicted upon the applicant,” ability to relocate within the country,
“[e]vidence of gross, flagrant or mass violations of human rights within the
country of removal,” and “[o]ther relevant information regarding conditions in
the country of removal.” Id. § 1208.16(c)(3).
The agency reasonably concluded that Gonzalez did not meet his burden to
establish likely torture or that the government would acquiescence to his torture.
5 As the agency concluded, 12 years had passed since the incident and Gonzalez had
Free access — add to your briefcase to read the full text and ask questions with AI
22-6157 Gonzalez v. Garland BIA Straus, IJ A208 484 627
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 2nd day of April, two thousand twenty- four.
PRESENT: JOSEPH F. BIANCO, STEVEN J. MENASHI, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________
JOSE M. GONZALEZ, Petitioner,
v. 22-6157 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Jon E. Jessen, Law Offices of Jon E. Jessen, LLC, Stamford, CT. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Sharon M. Clay, 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 Jose M. Gonzalez, a native and citizen of Guatemala, seeks review
of a March 9, 2022, decision of the BIA affirming a February 21, 2019, decision of
an Immigration Judge (“IJ”) denying his application for withholding of removal
and relief under the Convention Against Torture (“CAT”). In re Jose M. Gonzalez,
No. A 208 484 627 (B.I.A. Mar. 9, 2022), aff’g No. A 208 484 627 (Immig. Ct. Hartford
Feb. 21, 2019). We assume the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as modified by the BIA, i.e. minus the
credibility and corroboration findings that the BIA did not reach. See Xue Hong
Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). “[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). “Accordingly, 2 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.” Singh v. Garland, 11 F.4th 106, 113
(2d Cir. 2021) (internal quotation marks omitted). We review questions of law
and the application of law to fact de novo. See Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
Gonzalez alleged he was threatened, kidnapped, and attacked for dating the
ex-girlfriend of a gang member and he claimed that this harm was on account of
his membership in the particular social group of “well-known and famous
individuals targeted by gangs for personal revenge” because he was a wrestler
who medaled in international competitions. Petitioner’s Br. 23.
I. Withholding of Removal
An applicant for withholding of removal has the burden to establish past
persecution or “a clear probability of future persecution,” Jian Liang v. Garland, 10
F.4th 106, 112 (2d Cir. 2021) (quoting Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018)); see also 8 C.F.R. § 1208.16(b), and that “race, religion, nationality,
membership in a particular social group, or political opinion” is “one central
reason” for that persecution, 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R.
3 § 1208.16(b); Quituizaca v. Garland, 52 F.4th 103, 114 (2d Cir. 2022) (upholding BIA’s
application of asylum’s “one central reason” standard to withholding of removal).
“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) (internal quotation marks and citation omitted).
Gonzalez does not challenge the agency’s determination that he did not
establish that his membership in his proposed social group was “one central
reason” why gang members kidnapped and beat him. Accordingly, he has
abandoned review of this dispositive nexus determination. See Debique v.
Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not
adequately presented in an appellant’s brief, and an appellant’s failure to make
legal or factual arguments constitutes abandonment.”) (internal quotation marks
omitted).
Even if not abandoned, Gonzalez failed to establish that gang members beat
and kidnapped him on account of his membership in his particular social group.
He had the burden of providing “some evidence [], direct or circumstantial” that
he was attacked because of his group membership. INS v. Elias-Zacarias, 502 U.S.
4 478, 483 (1992); see Paloka, 762 F.3d at 196–97 (“Whether the requisite nexus exists
depends on the views and motives of the persecutor.”) (internal quotation marks
omitted). To the contrary, Gonzalez testified that the “main reason” gang
members targeted him was because he was dating the ex-girlfriend of a gang
member, a motivation based on a personal dispute, not on account of his status as
a well-known wrestler. Certified Admin. R. 88.
II. CAT Relief
To be eligible for CAT relief, an applicant has the burden to show that he
will “more likely than not” be tortured by or with the acquiescence of government
officials. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). “In assessing whether it is
more likely than not that an applicant would be tortured . . . all evidence relevant
to the possibility of future torture shall be considered, including . . . [e]vidence of
past torture inflicted upon the applicant,” ability to relocate within the country,
“[e]vidence of gross, flagrant or mass violations of human rights within the
country of removal,” and “[o]ther relevant information regarding conditions in
the country of removal.” Id. § 1208.16(c)(3).
The agency reasonably concluded that Gonzalez did not meet his burden to
establish likely torture or that the government would acquiescence to his torture.
5 As the agency concluded, 12 years had passed since the incident and Gonzalez had
no evidence that the gang member behind his attack remained interested in
harming him. Further, because the “the primary perpetrator of likely harm is a
gang, the relevant state-action question . . . is whether any public official, or any
other person, including low-level local police officers, when acting under color of
law, will participate or acquiesce in harm that the gang is likely to inflict.” Garcia-
Aranda v. Garland, 53 F.4th 752, 761 (2d Cir. 2022). Gonzalez did not allege that he
feared any public officials, he did not report any harm or threats to the police, and
he did not know if his girlfriend did because he had no contact with her following
the assault. Thus, his assertion that the police would not act if he reported gang
violence is speculative. 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.”). Absent “particularized evidence” that the authorities will
acquiesce to his torture, his general country conditions evidence of human rights
violations in Guatemala is insufficient to establish government acquiescence. Mu
Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005); see also Quintanilla-
Mejia v. Garland, 3 F.4th 569, 592 (2d Cir. 2021) (holding that where “the agency’s
conclusion finds support in record evidence, [an applicant] cannot secure CAT
6 relief by pointing to conflicting evidence that might support—but not compel—a
different conclusion”).
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