18-3518 Loja-Moreno v. Barr BIA
IJ Verrillo
A205 497 521
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 15th day of December, two thousand twenty. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 JOSEPH F. BIANCO, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 JUAN LEONARDO LOJA-MORENO, 14 Petitioner, 15 16 v. 18-3518 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gregory Osakwe, Esq., Hartford, 24 CT. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Matthew B. George, Senior
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1 Litigation Counsel; Sherry D. 2 Soanes, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, 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, Juan Leonardo Loja-Moreno, a native and 11 citizen of Ecuador, seeks review of an October 29, 2018, 12 decision of the BIA affirming a November 27, 2017, decision 13 of an Immigration Judge (“IJ”) denying asylum, withholding of 14 removal, and relief under the Convention Against Torture 15 (“CAT”). In re Juan Leonardo Loja-Moreno, No. A205 497 521 16 (B.I.A. Oct. 29, 2018), aff’g No. A205 497 521 (Immig. Ct. 17 Hartford Nov. 27, 2017). We assume the parties’ familiarity 18 with the underlying facts and procedural history. 19 We have reviewed both the IJ’s and the BIA’s decisions 20 “for the sake of completeness.” Wangchuck v. Dep’t of 21 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 22 applicable standards of review are well established. See 23 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 24 (2d Cir. 2014) (reviewing de novo whether a group constitutes
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1 a particular social group under the Immigration and 2 Nationality Act); Edimo-Doualla v. Gonzales, 464 F.3d 276, 3 281-83 (2d Cir. 2006) (applying substantial evidence standard 4 to nexus determination); Yanqin Weng v. Holder, 562 F.3d 510, 5 513, 516 (2d Cir. 2009) (applying substantial evidence 6 standard to CAT claim). 7 To obtain asylum or withholding of removal, an applicant 8 must establish past persecution or a fear of future 9 persecution on account of a protected ground. See 8 C.F.R. 10 §§ 1208.13(b), 1208.16(b)(1), (2). Loja-Moreno asserts past 11 harm and a fear of future harm on account of his membership 12 in a particular social group. To demonstrate eligibility on 13 this basis, an applicant “must establish both that the group 14 itself was cognizable, . . . and that the alleged persecutors 15 targeted [him] on account of h[is] membership in that group.” 16 Paloka, 762 F.3d at 195 (internal quotation marks and citation 17 omitted). 18 The agency reasonably denied asylum and withholding of 19 removal because (1) Loja-Moreno’s proposed group was not 20 cognizable, and (2) he failed to demonstrate the requisite 21 nexus between the harm he suffered or fears and his membership
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1 in his proposed group. 2 First, as to cognizability, a particular social group 3 must be “(1) composed of members who share a common immutable 4 characteristic, (2) defined with particularity, and 5 (3) socially distinct within the society in question.” 6 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014); see 7 also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir. 8 2007). The agency reasonably found that Loja-Moreno’s 9 proposed particular social group—“Ecuadoran nationals who 10 reside in the [United States] and who are perceived to have 11 money, and who the Ecuadoran government is unable to protect 12 due to those American ties”—was not cognizable because it did 13 not meet the particularity and social distinction 14 requirements. As to particularity, Loja-Moreno’s group does 15 not provide a clear benchmark for its membership because the 16 perception of wealth is “too subjective, inchoate, and 17 variable to provide the sole basis for membership in a 18 particular social group.” Ucelo-Gomez, 509 F.3d at 73 19 (agreeing with BIA’s conclusion that proposed group of 20 wealthy Guatemalans was not sufficiently particular). As to 21 social distinction, Loja-Moreno argues only that Ecuadorans
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1 can identify members of his group by body language, speech, 2 and clothing. But the question is not whether someone will 3 be able to identify him, it “is whether society as a whole 4 views a group as socially distinct.” Paloka, 762 F.3d at 5 196; see also Matter of M-E-V-G-, 26 I. & N. Dec. at 240 6 (social group must be “perceived as a group by society” and 7 members need not be identifiable by sight). Where, as here, 8 “the harm visited upon members of a group is attributable to 9 the incentives presented to ordinary criminals rather than to 10 persecution, the scales are tipped away from considering 11 those people a ‘particular social group.’” Ucelo-Gomez, 509 12 F.3d at 73. 13 Second, substantial evidence supports the agency’s 14 finding that Loja-Moreno did not establish a nexus between 15 the harm he suffered or fears and his membership in his 16 proposed group because the record reflects that his 17 persecutors were or would be motivated by personal or economic 18 interests. See Melgar de Torres v. Reno, 191 F.3d 307, 313– 19 14 (2d Cir. 1999) (“general crime conditions are not a stated 20 ground” for asylum). Loja-Moreno testified that gang members 21 targeted him in 2000 because they believed he had money from
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1 his brother in the United States and an individual who 2 believed Loja-Moreno owed him money had threatened him and 3 his family. Loja-Moreno has not established that these 4 persecutors were or would be motivated by any reason other 5 than ordinary criminal or pecuniary interests. See id.; 6 Ucelo-Gomez, 509 F.3d at 74 (rejecting claim based on 7 perceived wealth and political opinion where putative 8 persecutors had no “motive other than increasing their own 9 wealth at the expense of the petitioners.” (internal 10 quotation marks omitted)). As Loja-Moreno failed to 11 establish a cognizable particular social group or that the 12 harm he suffered or feared had a nexus to his proposed group, 13 the agency did not err in denying asylum and withholding of 14 removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). 15 Lastly, substantial evidence supports the agency’s 16 denial of protection under the CAT. See Yanqin Weng, 562 17 F.3d at 513, 516. Loja-Moreno had the burden to show he was 18 “more likely than not to be tortured” 8 C.F.R. § 1208.16(c), 19 and “that government officials [would] know of or remain 20 willfully blind to an act of torture,” Khouzam v. Ashcroft, 21 361 F.3d 161, 171 (2d Cir. 2004). The agency properly
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1 considered past torture and country conditions. 8 C.F.R. 2 § 1208.16(c)(3). Loja-Moreno did not establish past torture 3 because he alleged only that he and his family were threatened 4 and harassed by the individual who had loaned him money and 5 that a gang member hit him on one occasion. See id. 6 § 1208.18(a)(2) (“Torture is an extreme form of cruel and 7 inhuman treatment and does not include lesser forms of cruel, 8 inhuman or degrading treatment or punishment that do not 9 amount to torture.”); Kyaw Zwar Tun v. U.S. INS, 445 F.3d 10 554, 567 (2d Cir. 2006) (“[T]orture requires proof of 11 something more severe than the kind of treatment that would 12 suffice to prove persecution.”). And his evidence of poor 13 country conditions, without more, was insufficient to 14 demonstrate that he would likely be tortured by or with the 15 acquiescence of government officials. See Mu-Xing Wang v. 16 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (finding country 17 conditions evidence reflecting some torture insufficient to 18 establish “someone in [Petitioner’s] particular alleged 19 circumstances is more likely than not to be tortured”); Mu 20 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d 21 Cir. 2005) (requiring “particularized evidence” beyond
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1 general country conditions to support a CAT claim). 2 For the foregoing reasons, the petition for review is 3 DENIED. All pending motions and applications are DENIED and 4 stays VACATED.
5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court