Guashco v. Blanche

Opinion

23-7286 Rivera-Guashco v. Blanche BIA

Reid, IJ

A220 592 377/378/379

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 31st day of July, two thousand twenty- 4 six. 5 6 PRESENT: 7 REENA RAGGI, 8 JOSEPH F. BIANCO, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 CHRISTIAN FERNANDO RIVERA- 13 GUASHCO, NUBE GABRIELA 14 DELGADO-MUNOZ, K.F.R.D., 15 Petitioners, 16 17 v. 23-7286 18 NAC 19 TODD BLANCHE, ACTING UNITED 20 STATES ATTORNEY GENERAL, 21 UNITED STATES ATTORNEY 22 GENERAL, 23 Respondent. 24 _____________________________________

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1 FOR PETITIONERS: Christian Rivera Guashco, pro se, 2 Mamaroneck, NY. 3 4 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 5 Attorney General; Jennifer Khouri, Senior 6 Litigation Counsel; Allison Frayer, Senior 7 Attorney, Office of Immigration Litigation, 8 United States Department of Justice, 9 Washington, DC.

10 UPON DUE CONSIDERATION of this petition for review of a Board of 11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 12 DECREED that the petition for review is DENIED. 13 Petitioners Christian Fernando Rivera-Guashco, Nube Gabriela Delgado- 14 Munoz, and their minor child, natives and citizens of Ecuador, seek review of a 15 September 11, 2023 decision of the BIA affirming an August 1, 2022 decision of an 16 Immigration Judge (“IJ”) denying Rivera-Guashco’s application for asylum, 17 withholding of removal, and relief under the Convention Against Torture 18 (“CAT”). 1 In re Rivera-Guashco, Nos. A 220 592 377/378/379 (B.I.A. Sept. 11, 2023), 19 aff’g Nos. A 220 592 377/378/379 (Immig. Ct. N.Y. City Aug. 1, 2022). We assume 20 the parties’ familiarity with the underlying facts and procedural history.

1 We principally refer to Rivera-Guashco because his wife and child did not file independent applications.

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1 We have reviewed the IJ’s decision as modified and supplemented by the 2 BIA, that is, limited to the ground for the denial of relief on which the BIA relied— 3 the IJ’s finding that Rivera-Guashco’s proposed particular social group was not 4 cognizable—and considering the BIA’s conclusion that Rivera-Guashco waived 5 his CAT claim. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 6 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Contrary to Rivera- 7 Guashco’s position, the BIA did not adopt the IJ’s decision in its entirety. Instead, 8 for asylum and withholding of removal, it stated that it was affirming for “one of 9 the reasons” given by the IJ, addressed only the IJ’s particular social group finding, 10 and explicitly declined to consider other issues because the social group finding 11 was dispositive. The BIA further deemed Rivera-Guashco’s CAT claim waived 12 without reaching the IJ’s reasoning. 2 We review fact-finding “under the 13 substantial evidence standard,” and we review questions of law and the 14 application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.

2 Rivera-Guashco’s arguments about the IJ’s other grounds for denying asylum and withholding of removal are misplaced because the BIA did not—and was not required to—reach them. See Xue Hong Yang, 426 F.3d at 522; INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

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1 2018). “[T]he administrative findings of fact are conclusive unless any reasonable 2 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 3 § 1252(b)(4)(B). “We . . . liberally construe submissions by pro se litigants as 4 raising the strongest arguments they suggest.” 3 Cheng v. United States, 132 F.4th 5 655, 658 (2d Cir. 2025). 6 To establish eligibility for asylum or withholding of removal, Rivera- 7 Guashco had to show past persecution or a fear of future persecution and that 8 “race, religion, nationality, membership in a particular social group, or political 9 opinion was or will be at least one central reason for” that persecution. 8 U.S.C. 10 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b); 11 Quituizaca v. Garland, 52 F.4th 103, 109–14 (2d Cir. 2022) (holding that one-central- 12 reason nexus standard for asylum also applies to withholding of removal). To 13 prevail on a particular social group claim, an applicant must also establish that the 14 proposed group is cognizable, which requires a showing that members of the 15 group share “a common immutable characteristic,” that the group is “defined with 16 particularity,” and that it is “socially distinct within the society in question.”

3Contrary to the Government’s position, liberal construction is warranted here because the petitioners lacked assistance in adapting their counseled brief to the BIA for this Court and in developing arguments in response to the BIA’s decision.

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1 Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014) (quoting Matter of M–E–V–G–, 26 2 I. & N. Dec. 227, 237 (B.I.A. 2014)). A group “is socially distinct if the people of a 3 given society would perceive [the] proposed group as sufficiently separate or 4 distinct.” Quintanilla-Mejia v. Garland, 3 F.4th 569, 588 (2d Cir. 2021) (quotation 5 marks omitted). A persecutor’s perception may be relevant to that inquiry, but 6 “a persecutor’s perception alone is not enough, by itself, to establish a cognizable 7 social group.” Id. (quotation marks omitted). 8 Neither the country conditions evidence nor Rivera-Guashco’s testimony 9 speaks to whether Ecuadorian society as a whole views his proposed particular 10 social group of “tradespeople who refuse to provide free services to gang 11 members” as socially distinct. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157–58 12 (2d Cir. 2008) (“[W]hen a petitioner bears the burden of proof, his failure to adduce 13 evidence can itself constitute the ‘substantial evidence’ necessary to support the 14 agency’s challenged decision.”). Rivera-Guashco alleged that the gang viewed 15 him as a person who opposed it, but as noted above, a persecutor’s perception of 16 a group is insufficient to establish social distinction. See Quintanilla-Mejia, 3 F.4th 17 at 588–89. Moreover, that perception speaks to the ordinary criminal motivation 18 of compelling victims to comply with demands: “When the harm visited upon

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1 members of a group is attributable to the incentives presented to ordinary 2 criminals rather than to persecution, the scales are tipped away from considering 3 those people a ‘particular social group’ within the meaning of the [Immigration 4 and Nationality Act].” Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). 5 Rivera-Guashco argues that social distinction is established by his job title, 6 but even if it were the case that “tradespeople,” or people who repair cars, are 7 recognized as a distinct group in Ecuador, that is not the group that Rivera- 8 Guashco proffered to the agency. See Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 9 189, 191–92 (B.I.A. 2018) (requiring asylum applicants to articulate “the exact 10 delineation” of each proposed social group to the IJ in the first instance). And he 11 does not explain how the record shows that the subset of such a group proffered 12 to the agency, i.e., tradespeople who refuse to do free work for gangs, is viewed as 13 distinct from the general community. That group could encompass a large and 14 diffuse portion of society, including people in very different trades and 15 circumstances, and it is not self-evident that Ecuadorian society perceives such 16 people as a distinct group. Rivera-Guashco otherwise argues generally that the 17 agency failed to provide sufficient analysis of his individual circumstances, but he 18 does not identify evidence that was not discussed and that might support a

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1 different outcome. Thus, we identify no error in the agency’s rejection of Rivera- 2 Guashco’s social-group persecution. 3 Finally, the BIA found that Rivera-Guashco waived his CAT claim by failing 4 to address it in his brief appealing the IJ decision. In his brief to this court, Rivera- 5 Guashco does not challenge either the waiver finding or the IJ’s conclusion that he 6 failed to establish a likelihood of torture by or with the acquiescence of the 7 government, and his CAT claim is thus both unexhausted and abandoned. See 8 Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) (“[W]hen an argument made 9 to this Court cannot be closely matched up with a specific argument made to the 10 BIA, it has not been properly exhausted and we cannot hear it.”); Debique v. 11 Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not 12 adequately presented in an appellant’s brief, and an appellant’s failure to make 13 legal or factual arguments constitutes abandonment.” (quotation marks omitted)); 14 Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015) (holding that, when the 15 BIA “properly applies its own waiver rule” and deems an issue waived, “this 16 Court’s review is limited to whether the BIA erred in deeming the argument 17 waived”).

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1 For the foregoing reasons, the petition for review is DENIED. All pending 2 motions and applications are DENIED and stays VACATED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court