24-865 Lora Sambrano v. Blanche BIA Xu, IJ A240 855 599/598/950
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 22nd day of July, two thousand twenty- 4 six. 5 6 PRESENT: 7 DENNY CHIN, 8 SUSAN L. CARNEY, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 KATHERIN PILAR LORA SAMBRANO, 14 PEDRO ARMANDO TORRES 15 CORONEL, F.M.T.L.,* 16 Petitioners, 17 18 v. 24-865 19 NAC 20
* We have used only initials to refer to the minor petitioner in this publicly accessible order, in accordance with Federal Rule of Civil Procedure 5.2(a)(3) and Federal Rule of Appellate Procedure 25(a)(5). 1 TODD BLANCHE, ACTING UNITED 2 STATES ATTORNEY GENERAL, 3 Respondent. 4 _____________________________________ 5 6 FOR PETITIONERS: Nicholas J. Mundy, Esq., Brooklyn, NY. 7 8 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 9 Attorney General; Sarah K. Pergolizzi, Senior 10 Litigation Counsel; Rachel L. Browning, 11 Senior Trial Attorney, Office of Immigration 12 Litigation, United States Department of 13 Justice, Washington, DC.
14 UPON DUE CONSIDERATION of this petition for review of a Board of
15 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
16 DECREED that the petition is DENIED.
17 Petitioners Katherin Pilar Lora Sambrano, Pedro Armando Torres Coronel,
18 and their minor child, natives and citizens of Peru, seek review of a March 25, 2024
19 decision of the BIA affirming an August 18, 2023 decision of an Immigration Judge
20 (“IJ”) denying Lora Sambrano’s application for asylum, withholding of removal,
21 and relief under the Convention Against Torture (“CAT”). In re Katherin Pilar
22 Lora Sambrano, et al., Nos. A 240 855 599/598/950 (B.I.A. Mar. 25, 2024), aff’g Nos. A
23 240 855 599/598/950 (Immig. Ct. N.Y. City Aug. 18, 2023). We assume the parties’
24 familiarity with the underlying facts and procedural history.
2 1 We have reviewed the IJ’s decision as modified and supplemented by the
2 BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan
3 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings,
4 including whether the harm suffered or feared has a nexus to a protected ground
5 and whether an applicant is likely to be tortured, for substantial evidence. See
6 Nasrallah v. Barr, 590 U.S. 573, 584 (2020); Edimo-Doualla v. Gonzales, 464 F.3d 276,
7 282 (2d Cir. 2006). “[T]he administrative findings of fact are conclusive unless
8 any reasonable adjudicator would be compelled to conclude to the contrary.”
9 8 U.S.C. § 1252(b)(4)(B).
10 An applicant for asylum and withholding of removal must show past
11 persecution or a fear of future persecution and that “race, religion, nationality,
12 membership in a particular social group, or political opinion was or will be at least
13 one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see
14 also id. § 1231(b)(3); 8 C.F.R. §§ 1208.13(b), 1208.16(b); Quituizaca v. Garland, 52 F.4th
15 103, 109–14 (2d Cir. 2022) (holding that the “one central reason” standard applies
16 to both asylum and withholding of removal). For CAT relief, an applicant “bears
17 the burden of proving” that she “more likely than not would be tortured by, or
18 with the acquiescence of, government officials acting in an official capacity.”
3 1 Quintanilla-Mejia v. Garland, 3 F.4th 569, 592 (2d Cir. 2021) (quotation marks
2 omitted); see 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
3 The record does not establish that Lora Sambrano was targeted as a member
4 of her proposed social group of the Torres Lora family. “Whether the requisite
5 nexus exists depends on the views and motives of the persecutor.” Paloka v.
6 Holder, 762 F.3d 191, 196–97 (2d Cir. 2014) (quotation marks omitted). “[T]he
7 applicant must . . . show, through direct or circumstantial evidence, that the
8 persecutor’s motive to persecute arises from [a protected ground].” Yueqing
9 Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Here, there is no evidence that
10 the anonymous individual (or individuals) who extorted Lora Sambrano had
11 anything other than a criminal motive of obtaining money. See Melgar de Torres
12 v. Reno, 191 F.3d 307, 313–14 (2d Cir. 1999) (explaining that “general crime” and
13 “random violence” are insufficient to establish eligibility for asylum); cf. Ucelo-
14 Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited upon
15 members of a group is attributable to the incentives presented to ordinary
16 criminals rather than to persecution, the scales are tipped away from considering
17 those people a ‘particular social group’ within the meaning of the INA.”).
18 Moreover, as the Government points out, Lora Sambrano’s claim that the agency
4 1 failed to consider whether gang members had targeted her because of an imputed
2 anti-gang political opinion is unexhausted because she did not raise it on appeal
3 to the BIA. See Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) (“[W]hen
4 an argument made to this Court cannot be closely matched up with a specific
5 argument made to the BIA, it has not been properly exhausted and we cannot hear
6 it.”).
7 Lora Sambrano similarly has not established a CAT claim. See Quintanilla-
8 Mejia, 3 F.4th at 592.
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24-865 Lora Sambrano v. Blanche BIA Xu, IJ A240 855 599/598/950
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 22nd day of July, two thousand twenty- 4 six. 5 6 PRESENT: 7 DENNY CHIN, 8 SUSAN L. CARNEY, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 KATHERIN PILAR LORA SAMBRANO, 14 PEDRO ARMANDO TORRES 15 CORONEL, F.M.T.L.,* 16 Petitioners, 17 18 v. 24-865 19 NAC 20
* We have used only initials to refer to the minor petitioner in this publicly accessible order, in accordance with Federal Rule of Civil Procedure 5.2(a)(3) and Federal Rule of Appellate Procedure 25(a)(5). 1 TODD BLANCHE, ACTING UNITED 2 STATES ATTORNEY GENERAL, 3 Respondent. 4 _____________________________________ 5 6 FOR PETITIONERS: Nicholas J. Mundy, Esq., Brooklyn, NY. 7 8 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 9 Attorney General; Sarah K. Pergolizzi, Senior 10 Litigation Counsel; Rachel L. Browning, 11 Senior Trial Attorney, Office of Immigration 12 Litigation, United States Department of 13 Justice, Washington, DC.
14 UPON DUE CONSIDERATION of this petition for review of a Board of
15 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
16 DECREED that the petition is DENIED.
17 Petitioners Katherin Pilar Lora Sambrano, Pedro Armando Torres Coronel,
18 and their minor child, natives and citizens of Peru, seek review of a March 25, 2024
19 decision of the BIA affirming an August 18, 2023 decision of an Immigration Judge
20 (“IJ”) denying Lora Sambrano’s application for asylum, withholding of removal,
21 and relief under the Convention Against Torture (“CAT”). In re Katherin Pilar
22 Lora Sambrano, et al., Nos. A 240 855 599/598/950 (B.I.A. Mar. 25, 2024), aff’g Nos. A
23 240 855 599/598/950 (Immig. Ct. N.Y. City Aug. 18, 2023). We assume the parties’
24 familiarity with the underlying facts and procedural history.
2 1 We have reviewed the IJ’s decision as modified and supplemented by the
2 BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan
3 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings,
4 including whether the harm suffered or feared has a nexus to a protected ground
5 and whether an applicant is likely to be tortured, for substantial evidence. See
6 Nasrallah v. Barr, 590 U.S. 573, 584 (2020); Edimo-Doualla v. Gonzales, 464 F.3d 276,
7 282 (2d Cir. 2006). “[T]he administrative findings of fact are conclusive unless
8 any reasonable adjudicator would be compelled to conclude to the contrary.”
9 8 U.S.C. § 1252(b)(4)(B).
10 An applicant for asylum and withholding of removal must show past
11 persecution or a fear of future persecution and that “race, religion, nationality,
12 membership in a particular social group, or political opinion was or will be at least
13 one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see
14 also id. § 1231(b)(3); 8 C.F.R. §§ 1208.13(b), 1208.16(b); Quituizaca v. Garland, 52 F.4th
15 103, 109–14 (2d Cir. 2022) (holding that the “one central reason” standard applies
16 to both asylum and withholding of removal). For CAT relief, an applicant “bears
17 the burden of proving” that she “more likely than not would be tortured by, or
18 with the acquiescence of, government officials acting in an official capacity.”
3 1 Quintanilla-Mejia v. Garland, 3 F.4th 569, 592 (2d Cir. 2021) (quotation marks
2 omitted); see 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
3 The record does not establish that Lora Sambrano was targeted as a member
4 of her proposed social group of the Torres Lora family. “Whether the requisite
5 nexus exists depends on the views and motives of the persecutor.” Paloka v.
6 Holder, 762 F.3d 191, 196–97 (2d Cir. 2014) (quotation marks omitted). “[T]he
7 applicant must . . . show, through direct or circumstantial evidence, that the
8 persecutor’s motive to persecute arises from [a protected ground].” Yueqing
9 Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Here, there is no evidence that
10 the anonymous individual (or individuals) who extorted Lora Sambrano had
11 anything other than a criminal motive of obtaining money. See Melgar de Torres
12 v. Reno, 191 F.3d 307, 313–14 (2d Cir. 1999) (explaining that “general crime” and
13 “random violence” are insufficient to establish eligibility for asylum); cf. Ucelo-
14 Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited upon
15 members of a group is attributable to the incentives presented to ordinary
16 criminals rather than to persecution, the scales are tipped away from considering
17 those people a ‘particular social group’ within the meaning of the INA.”).
18 Moreover, as the Government points out, Lora Sambrano’s claim that the agency
4 1 failed to consider whether gang members had targeted her because of an imputed
2 anti-gang political opinion is unexhausted because she did not raise it on appeal
3 to the BIA. See Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) (“[W]hen
4 an argument made to this Court cannot be closely matched up with a specific
5 argument made to the BIA, it has not been properly exhausted and we cannot hear
6 it.”).
7 Lora Sambrano similarly has not established a CAT claim. See Quintanilla-
8 Mejia, 3 F.4th at 592. In determining the likelihood of torture, the agency
9 considers, among any other relevant factors, whether an applicant has suffered
10 past torture and conditions in the country of removal. 8 C.F.R. § 1208.16(c)(3).
11 Lora Sambrano was not tortured in the past; she only received extortion demands
12 and threats. Id. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman
13 treatment and does not include lesser forms of cruel, inhuman or degrading
14 treatment or punishment that do not amount to torture.”). And general country
15 conditions evidence reflecting gang violence does not establish that someone in
16 her circumstances—a former business owner who had been subject to extortion
17 demands in the past—will more likely than not be tortured. See Mu Xiang Lin v.
18 U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005) (emphasizing that a CAT
5 1 applicant must “establish[] that someone in h[er] particular alleged circumstances
2 is more likely than not to be tortured” (emphasis omitted)). Moreover, given her
3 admissions that the police told her they would be watching and that they would
4 do their best to protect her, she did not establish that the authorities in Peru would
5 likely acquiesce to her torture by gang members. See Garcia-Milian v. Holder, 755
6 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular
7 crime, but failed to bring the perpetrators to justice, is not in itself sufficient to
8 establish acquiescence in the crime.”); cf. Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir.
9 2020) (holding, in addressing the unable-or-unwilling-to-protect standard for
10 asylum and withholding of removal, that an applicant has to “show more than
11 government failure to act on a particular report of an individual crime, or difficulty
12 controlling private behavior” (alterations and quotation marks omitted)).
13 For the foregoing reasons, the petition is DENIED. All pending motions
14 and applications are DENIED and stays VACATED.
15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court