19-3743 Guzman-Mira v. Garland BIA Poczter, IJ A208 985 359 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 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 27th day of May, two thousand twenty-two. 5 6 PRESENT: 7 JON O. NEWMAN, 8 REENA RAGGI, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 RAUL ALEJANDRO GUZMAN-MIRA, 14 Petitioner, 15 16 v. 19-3743 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Anne Pilsbury, Esq., Brooklyn, 24 NY. 25 26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 27 Attorney General; Jennifer P. 28 Levings, Senior Litigation 1 Counsel; Jennifer R. Khouri, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Raul Alejandro Guzman-Mira, a native and
11 citizen of El Salvador, seeks review of an October 30, 2019,
12 decision of the BIA affirming a February 15, 2018, decision
13 of an Immigration Judge (“IJ”), denying his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Raul Alejandro
16 Guzman-Mira, No. A208 985 359 (B.I.A. Oct. 30, 2019), aff’g
17 No. A208 985 359 (Immig. Ct. N.Y. City Feb. 15, 2018).
18 Guzman-Mira testified that gang members threatened and
19 extorted him after he witnessed them murder his neighbor, and
20 then beat him with an aluminum bat assuming he had cooperated
21 with police. We assume the parties’ familiarity with the
22 underlying facts and procedural history.
23 We have reviewed both the IJ’s and BIA’s decisions. See
24 Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). We 2 1 review factual findings for substantial evidence and
2 questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B);
3 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
4 I. Asylum and Withholding of Removal
5 We deny the petition as to asylum and withholding of
6 removal, finding no error in the agency’s conclusion that
7 Guzman-Mira failed to establish that he had been or would be
8 persecuted because of his political opinion or membership in
9 his proposed particular social group of “people who have
10 cooperated with the police.” To be eligible for asylum and
11 withholding of removal, an applicant must show that he
12 suffered past persecution, or has a well-founded fear or
13 likelihood of future persecution, on account of race,
14 religion, nationality, membership in a particular social
15 group, or political opinion. 8 U.S.C. §§ 1101(a)(42),
16 1158(b)(1)(A), (B)(i), 1231(b)(3)(A). “To show that
17 persecution, or a well-founded fear of persecution, is on
18 account of political opinion, an asylum applicant must
19 demonstrate that a persecutor’s motive to persecute arises
20 from the asylum applicant’s political belief, or from a
21 political belief imputed to him by the persecutor.” Zelaya-
3 1 Moreno v. Wilkinson, 989 F.3d 190, 196 (2d Cir. 2021)
2 (quotation marks, citations, and brackets omitted); see also
3 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005).
4 “[T]o qualify as a political opinion, an opinion must involve
5 some support for or disagreement with the belief system,
6 policies, or practices of a government and its
7 instrumentalities; an entity that seeks to directly influence
8 laws, regulations, or policy; an organization that aims to
9 overthrow the government; or a group that plays some other
10 similar role in society.” Id. at 199–200 (quotation marks
11 and citations omitted). “[U]nder appropriate circumstances,
12 even overtly apolitical or nongovernmental organizations may
13 take on a political valence such that support or opposition
14 to them can constitute a political opinion.” Id. at 200.
15 “[W]hile one need not broadcast one’s beliefs to the entire
16 world to hold beliefs that are political in nature, these
17 beliefs and actions taken in support of them must have some
18 political ambition in mind—or, for an imputed claim, must be
19 perceived in this manner.” Id. at 199.
20 Here, the agency reasonably found that gang members did
21 not persecute Guzman-Mira because of an actual or imputed
4 1 political opinion. Gang members’ initial threats and
2 extortion sought to prevent Guzman-Mira from reporting them
3 to the police rather than on account of any belief he held,
4 and were therefore not on account of political opinion. See
5 Zelaya-Moreno, 989 F.3d at 196. After Guzman-Mira’s flight
6 from his neighborhood caused the gang to suspect him of
7 cooperating with police, members beat him in retaliation for
8 his perceived cooperation. But then too, the evidence does
9 not show that the gang beat him because they perceived him to
10 have a “political ambition in mind.” Zelaya-Moreno, 989 F.3d
11 at 199, 201–03. Further, the evidence shows that the gang
12 that targeted Guzman-Mira is a criminal enterprise with self-
13 aggrandizing ends, not a political organization. See id. at
14 201 (agreeing with the agency’s determination “that gangs are
15 criminal organizations and gang activities are not political
16 in nature” (quotation marks and ellipsis omitted)). Although
17 Guzman-Mira presented evidence that gangs may emerge as a
18 political entity, that same evidence notes that gangs do not
19 have an explicit political agenda and that their primary
20 motive is group survival and personal gain.
21 The agency also reasonably concluded that the gang did
5 1 not target Guzman-Mira because of his membership in a
2 particular social group. To constitute a particular social
3 group, a group must be “(1) composed of members who share a
4 common immutable characteristic, (2) defined with
5 particularity, and (3) socially distinct within the society
6 in question.” Paloka, 762 F.3d at 196. Guzman-Mira asserted
7 membership in a group of “[p]eople who have cooperated with
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19-3743 Guzman-Mira v. Garland BIA Poczter, IJ A208 985 359 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 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 27th day of May, two thousand twenty-two. 5 6 PRESENT: 7 JON O. NEWMAN, 8 REENA RAGGI, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 RAUL ALEJANDRO GUZMAN-MIRA, 14 Petitioner, 15 16 v. 19-3743 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Anne Pilsbury, Esq., Brooklyn, 24 NY. 25 26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 27 Attorney General; Jennifer P. 28 Levings, Senior Litigation 1 Counsel; Jennifer R. Khouri, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Raul Alejandro Guzman-Mira, a native and
11 citizen of El Salvador, seeks review of an October 30, 2019,
12 decision of the BIA affirming a February 15, 2018, decision
13 of an Immigration Judge (“IJ”), denying his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Raul Alejandro
16 Guzman-Mira, No. A208 985 359 (B.I.A. Oct. 30, 2019), aff’g
17 No. A208 985 359 (Immig. Ct. N.Y. City Feb. 15, 2018).
18 Guzman-Mira testified that gang members threatened and
19 extorted him after he witnessed them murder his neighbor, and
20 then beat him with an aluminum bat assuming he had cooperated
21 with police. We assume the parties’ familiarity with the
22 underlying facts and procedural history.
23 We have reviewed both the IJ’s and BIA’s decisions. See
24 Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). We 2 1 review factual findings for substantial evidence and
2 questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B);
3 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
4 I. Asylum and Withholding of Removal
5 We deny the petition as to asylum and withholding of
6 removal, finding no error in the agency’s conclusion that
7 Guzman-Mira failed to establish that he had been or would be
8 persecuted because of his political opinion or membership in
9 his proposed particular social group of “people who have
10 cooperated with the police.” To be eligible for asylum and
11 withholding of removal, an applicant must show that he
12 suffered past persecution, or has a well-founded fear or
13 likelihood of future persecution, on account of race,
14 religion, nationality, membership in a particular social
15 group, or political opinion. 8 U.S.C. §§ 1101(a)(42),
16 1158(b)(1)(A), (B)(i), 1231(b)(3)(A). “To show that
17 persecution, or a well-founded fear of persecution, is on
18 account of political opinion, an asylum applicant must
19 demonstrate that a persecutor’s motive to persecute arises
20 from the asylum applicant’s political belief, or from a
21 political belief imputed to him by the persecutor.” Zelaya-
3 1 Moreno v. Wilkinson, 989 F.3d 190, 196 (2d Cir. 2021)
2 (quotation marks, citations, and brackets omitted); see also
3 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005).
4 “[T]o qualify as a political opinion, an opinion must involve
5 some support for or disagreement with the belief system,
6 policies, or practices of a government and its
7 instrumentalities; an entity that seeks to directly influence
8 laws, regulations, or policy; an organization that aims to
9 overthrow the government; or a group that plays some other
10 similar role in society.” Id. at 199–200 (quotation marks
11 and citations omitted). “[U]nder appropriate circumstances,
12 even overtly apolitical or nongovernmental organizations may
13 take on a political valence such that support or opposition
14 to them can constitute a political opinion.” Id. at 200.
15 “[W]hile one need not broadcast one’s beliefs to the entire
16 world to hold beliefs that are political in nature, these
17 beliefs and actions taken in support of them must have some
18 political ambition in mind—or, for an imputed claim, must be
19 perceived in this manner.” Id. at 199.
20 Here, the agency reasonably found that gang members did
21 not persecute Guzman-Mira because of an actual or imputed
4 1 political opinion. Gang members’ initial threats and
2 extortion sought to prevent Guzman-Mira from reporting them
3 to the police rather than on account of any belief he held,
4 and were therefore not on account of political opinion. See
5 Zelaya-Moreno, 989 F.3d at 196. After Guzman-Mira’s flight
6 from his neighborhood caused the gang to suspect him of
7 cooperating with police, members beat him in retaliation for
8 his perceived cooperation. But then too, the evidence does
9 not show that the gang beat him because they perceived him to
10 have a “political ambition in mind.” Zelaya-Moreno, 989 F.3d
11 at 199, 201–03. Further, the evidence shows that the gang
12 that targeted Guzman-Mira is a criminal enterprise with self-
13 aggrandizing ends, not a political organization. See id. at
14 201 (agreeing with the agency’s determination “that gangs are
15 criminal organizations and gang activities are not political
16 in nature” (quotation marks and ellipsis omitted)). Although
17 Guzman-Mira presented evidence that gangs may emerge as a
18 political entity, that same evidence notes that gangs do not
19 have an explicit political agenda and that their primary
20 motive is group survival and personal gain.
21 The agency also reasonably concluded that the gang did
5 1 not target Guzman-Mira because of his membership in a
2 particular social group. To constitute a particular social
3 group, a group must be “(1) composed of members who share a
4 common immutable characteristic, (2) defined with
5 particularity, and (3) socially distinct within the society
6 in question.” Paloka, 762 F.3d at 196. Guzman-Mira asserted
7 membership in a group of “[p]eople who have cooperated with
8 the police.” Cooperating witnesses may constitute a
9 particular social group when they are socially distinct,
10 i.e., “[t]he number of persons who have given interviews to,
11 or otherwise cooperated with [law enforcement] is finite, and
12 undoubtedly quite limited” and “[a]n individual’s membership
13 is also verifiable.” Gashi v. Holder, 702 F.3d 130, 137 (2d
14 Cir. 2012). However, Guzman-Mira did not establish his
15 membership in any such group since he never cooperated with
16 the police. Guzman-Mira argues that the agency erroneously
17 rejected his particular-social-group claim because it wrongly
18 assumed that membership could not be imputed. He could have
19 defined his group as people who are perceived to have
20 cooperated with police, but he did not do so and such group
21 would not likely satisfy the social distinction requirement.
6 1 See Gashi, 702 F.3d at 137. Accordingly, given Guzman-Mira’s
2 failure to establish a nexus between the harm he experienced
3 and a protected ground, the agency properly determined that
4 he was ineligible for asylum and withholding of removal. See
5 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A), (B)(i),
6 1231(b)(3)(A).
7 II. CAT Relief
8 We also deny the petition as to Guzman-Mira’s CAT claim.
9 As an initial matter, the agency reasonably concluded that
10 Guzman-Mira did not suffer torture when gang members beat
11 him. See 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme
12 form of cruel and inhuman treatment and does not include
13 lesser forms of cruel, inhuman or degrading treatment . . .
14 .”); Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 567 (2d Cir.
15 2006) (“[T]orture requires proof of something more severe
16 than the kind of treatment that would suffice to prove
17 persecution.”). And, as a dispositive matter, the agency
18 reasonably concluded that Guzman-Mira had failed to establish
19 that it was more likely than not that he would be tortured by
20 or with the acquiescence of Salvadoran government officials.
21 See 8 C.F.R. § 1208.16(c)(2); Quintanilla-Mejia v. Garland,
7 1 3 F.4th 569, 592 (2d Cir. 2021). In support of its conclusion
2 as to government acquiescence, the agency found significant
3 that Guzman-Mira did not inform law enforcement after he was
4 beaten by gang members and that the police conducted a raid
5 on his neighborhood after his neighbor was murdered by gang
6 members seeking to locate those responsible for the murder.
7 Guzman-Mira argues that the IJ “recognized in her statement
8 of facts that Guzman had gone to a neighbor who was a police
9 officer for guidance and was told not only that going to the
10 police would be futile but would put him in additional danger
11 due to corruption and collusion between the police and the
12 gangs,” but “did not acknowledge what this means for
13 government acquiescence.” Pet. Br. at 19. However, the
14 agency “need not expressly parse or refute on the record each
15 piece of evidence offered by the petitioner.” Scarlett v.
16 Barr, 957 F.3d 316, 329 (2d Cir. 2020) (internal quotation
17 marks and alterations omitted). Guzman-Mira also stresses
18 that his neighbor’s advice was “well-supported by the country
19 conditions demonstrating the same.” Pet. Br. at 19.
20 Although Guzman-Mira presented country conditions evidence
21 that the Salvadoran government had difficulty controlling
8 1 gang activity and guaranteeing its citizens’ safety, we
2 cannot conclude that it was error for the agency to credit
3 the countervailing evidence of effective law enforcement
4 investigation into gang violence, specifically the raid
5 following the murder of Guzman-Mira’s neighbor. See
6 Quintanilla-Mejia, 3 F.4th at 593 (“Because the agency’s
7 conclusion finds support in record evidence, [the petitioner]
8 cannot secure CAT relief by pointing to conflicting evidence
9 that might support—but not compel—a different conclusion.”).
10 For the foregoing reasons, the petition for review is
11 DENIED. All pending motions and applications are DENIED and
12 stays VACATED.
13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court