23-6639 Manzanarez-Arias v. Garland BIA Lurye, IJ A209 238 879
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 7th day of January, two thousand 4 twenty-five. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 SARAH A. L. MERRIAM, 10 Circuit Judges. 11 _____________________________________ 12 13 KATTY MARILY MANZANAREZ- 14 ARIAS, 15 Petitioner, 16 17 v. 23-6639 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 1 FOR PETITIONER: Ioan Florin Cristea, Centro Legal de 2 Immigracion, Bay Shore, NY. 3 4 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 5 Attorney General; Sarah A. Byrd, Senior 6 Litigation Counsel; Brandon T. Callahan, 7 Trial Attorney, Office of Immigration 8 Litigation, United States Department of 9 Justice, 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 Petitioner Katty Marily Manzanarez-Arias, a native and citizen of
14 Honduras, seeks review of a May 26, 2023, decision of the BIA affirming a
15 September 24, 2019, decision of an Immigration Judge (“IJ”) denying her
16 application for asylum, withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Katty Marily Manzanarez-Arias, No. A 209 238 879
18 (B.I.A. May 26, 2023), aff’g No. A 209 238 879 (Immig. Ct. N.Y. City Sept. 24, 2019).
19 We assume the parties’ familiarity with the underlying facts and procedural
20 history.
21 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding “under
2 1 the substantial evidence standard,” and we review questions of law and the
2 application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
3 2018). “[T]he administrative findings of fact are conclusive unless any reasonable
4 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
5 § 1252(b)(4)(B).
6 We agree with the agency that Manzanarez-Arias’s proffered particular
7 social group of “[i]ndividuals who refuse to give into gang demands,” Petitioner’s
8 Br. at 12, is not cognizable and even if it were, she did not establish the requisite
9 nexus between the harm she suffered and purported membership in that group.
10 Applicants for asylum and withholding of removal must establish that their “race,
11 religion, nationality, membership in a particular social group, or political opinion
12 was or will be at least one central reason” for their persecution. 8 U.S.C.
13 § 1158(b)(1)(B)(i) (asylum); see also Quituizaca v. Garland, 52 F.4th 103, 113–14 (2d
14 Cir. 2022) (holding that “one central reason” standard applies to both asylum and
15 withholding). Where an applicant asserts membership in a particular social group,
16 she must establish that the group is cognizable, that she is a member, and that
17 membership in the group was one central reason for the persecution. See Paloka v.
18 Holder, 762 F.3d 191, 196–97 (2d Cir. 2014). We review de novo the determination
3 1 of whether a particular social group is cognizable and we review the nexus
2 determination for substantial evidence. Id. at 195, 199 n.4; Quintanilla-Mejia v.
3 Garland, 3 F.4th 569, 591 n.25 (2d Cir. 2021).
4 Manzanarez-Arias’s proposed social group is not cognizable because it is
5 impermissibly circular in that its boundaries are defined by the claimed
6 persecution. See Paloka, 762 F.3d at 196. A group is cognizable where it is
7 “(1) composed of members who share a common immutable characteristic,
8 (2) defined with particularity, and (3) socially distinct within the society in
9 question.” Id. (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)).
10 “Persecutory conduct aimed at a social group cannot alone define the group,
11 which must exist independently of the persecution.” Id. (citation and quotation
12 marks omitted); see also Hernandez-Chacon v. Barr, 948 F.3d 94, 101–02 (2d Cir.
13 2020) (concluding that a proposed social group of “El Salvadoran women who
14 have rejected the sexual advances of a gang member . . . was not cognizable”). A
15 social group is not cognizable if it “depends on no disadvantage other than
16 purported visibility to criminals,” Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.
17 2007), and “general crime conditions are not a stated ground” for asylum and
18 withholding of removal, Melgar de Torres v. Reno, 191 F. 3d 307, 314 (2d Cir. 1999).
4 1 Manzanarez-Arias presented no evidence that the gang robbed and extorted her
2 for any other reason than to obtain money. “When the harm visited upon
3 members of a group is attributable to the incentives presented to ordinary
4 criminals rather than to persecution, the scales are tipped away from considering
5 those people a ‘particular social group’ within the meaning of the INA.” Ucelo-
6 Gomez, 509 F.3d at 73. We therefore find no reason to disturb the agency’s
7 conclusion that her proposed social group was not cognizable.
8 Manzanarez-Arias’s remaining arguments regarding her proposed social
9 group lack merit. Her claim that the group should be viewed through the
10 perspective of her persecutors is misplaced because “[w]hile a persecutor’s
11 perception can be indicative of whether society views a group as distinct, a
12 persecutor’s perception alone is not enough, by itself, to establish a cognizable
13 social group.” Quintanillla-Mejia, 3 F.4th at 588 (quotation marks omitted); see also
14 Paloka, 762 F.3d at 196 (“What matters is whether society as a whole views the
15 group as socially distinct, not the persecutor’s perception.” (quotation marks
16 omitted)). And she relies on country conditions evidence that was not in the
17 record before the agency. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall
5 1 decide the petition only on the administrative record on which the order of
2 removal is based.”).
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23-6639 Manzanarez-Arias v. Garland BIA Lurye, IJ A209 238 879
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 7th day of January, two thousand 4 twenty-five. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 SARAH A. L. MERRIAM, 10 Circuit Judges. 11 _____________________________________ 12 13 KATTY MARILY MANZANAREZ- 14 ARIAS, 15 Petitioner, 16 17 v. 23-6639 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 1 FOR PETITIONER: Ioan Florin Cristea, Centro Legal de 2 Immigracion, Bay Shore, NY. 3 4 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 5 Attorney General; Sarah A. Byrd, Senior 6 Litigation Counsel; Brandon T. Callahan, 7 Trial Attorney, Office of Immigration 8 Litigation, United States Department of 9 Justice, 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 Petitioner Katty Marily Manzanarez-Arias, a native and citizen of
14 Honduras, seeks review of a May 26, 2023, decision of the BIA affirming a
15 September 24, 2019, decision of an Immigration Judge (“IJ”) denying her
16 application for asylum, withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Katty Marily Manzanarez-Arias, No. A 209 238 879
18 (B.I.A. May 26, 2023), aff’g No. A 209 238 879 (Immig. Ct. N.Y. City Sept. 24, 2019).
19 We assume the parties’ familiarity with the underlying facts and procedural
20 history.
21 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding “under
2 1 the substantial evidence standard,” and we review questions of law and the
2 application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
3 2018). “[T]he administrative findings of fact are conclusive unless any reasonable
4 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
5 § 1252(b)(4)(B).
6 We agree with the agency that Manzanarez-Arias’s proffered particular
7 social group of “[i]ndividuals who refuse to give into gang demands,” Petitioner’s
8 Br. at 12, is not cognizable and even if it were, she did not establish the requisite
9 nexus between the harm she suffered and purported membership in that group.
10 Applicants for asylum and withholding of removal must establish that their “race,
11 religion, nationality, membership in a particular social group, or political opinion
12 was or will be at least one central reason” for their persecution. 8 U.S.C.
13 § 1158(b)(1)(B)(i) (asylum); see also Quituizaca v. Garland, 52 F.4th 103, 113–14 (2d
14 Cir. 2022) (holding that “one central reason” standard applies to both asylum and
15 withholding). Where an applicant asserts membership in a particular social group,
16 she must establish that the group is cognizable, that she is a member, and that
17 membership in the group was one central reason for the persecution. See Paloka v.
18 Holder, 762 F.3d 191, 196–97 (2d Cir. 2014). We review de novo the determination
3 1 of whether a particular social group is cognizable and we review the nexus
2 determination for substantial evidence. Id. at 195, 199 n.4; Quintanilla-Mejia v.
3 Garland, 3 F.4th 569, 591 n.25 (2d Cir. 2021).
4 Manzanarez-Arias’s proposed social group is not cognizable because it is
5 impermissibly circular in that its boundaries are defined by the claimed
6 persecution. See Paloka, 762 F.3d at 196. A group is cognizable where it is
7 “(1) composed of members who share a common immutable characteristic,
8 (2) defined with particularity, and (3) socially distinct within the society in
9 question.” Id. (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)).
10 “Persecutory conduct aimed at a social group cannot alone define the group,
11 which must exist independently of the persecution.” Id. (citation and quotation
12 marks omitted); see also Hernandez-Chacon v. Barr, 948 F.3d 94, 101–02 (2d Cir.
13 2020) (concluding that a proposed social group of “El Salvadoran women who
14 have rejected the sexual advances of a gang member . . . was not cognizable”). A
15 social group is not cognizable if it “depends on no disadvantage other than
16 purported visibility to criminals,” Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.
17 2007), and “general crime conditions are not a stated ground” for asylum and
18 withholding of removal, Melgar de Torres v. Reno, 191 F. 3d 307, 314 (2d Cir. 1999).
4 1 Manzanarez-Arias presented no evidence that the gang robbed and extorted her
2 for any other reason than to obtain money. “When the harm visited upon
3 members of a group is attributable to the incentives presented to ordinary
4 criminals rather than to persecution, the scales are tipped away from considering
5 those people a ‘particular social group’ within the meaning of the INA.” Ucelo-
6 Gomez, 509 F.3d at 73. We therefore find no reason to disturb the agency’s
7 conclusion that her proposed social group was not cognizable.
8 Manzanarez-Arias’s remaining arguments regarding her proposed social
9 group lack merit. Her claim that the group should be viewed through the
10 perspective of her persecutors is misplaced because “[w]hile a persecutor’s
11 perception can be indicative of whether society views a group as distinct, a
12 persecutor’s perception alone is not enough, by itself, to establish a cognizable
13 social group.” Quintanillla-Mejia, 3 F.4th at 588 (quotation marks omitted); see also
14 Paloka, 762 F.3d at 196 (“What matters is whether society as a whole views the
15 group as socially distinct, not the persecutor’s perception.” (quotation marks
16 omitted)). And she relies on country conditions evidence that was not in the
17 record before the agency. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall
5 1 decide the petition only on the administrative record on which the order of
2 removal is based.”).
3 Moreover, substantial evidence supports the agency’s determination that
4 Manzanarez-Arias did not establish that gang members targeted her on account of
5 her membership in her proposed group. An applicant for asylum and withholding
6 must show that their membership in a particular social group was “one central
7 reason” for the harm. Quituizaca, 52 F.4th at 113–14. A record does not compel the
8 conclusion that a protected ground was “one central reason” when circumstances
9 suggested that a gang was motivated by ordinary criminal incentives. Id. at 114–
10 16. Here, nothing in the record compels us to conclude that Manzanarez-Arias
11 was targeted for a reason other than the ordinary criminal incentives of the gang,
12 so we do not disturb the agency’s determination that her membership in a
13 protected group was not a central reason for the harm she suffered. Id.; Paloka, 762
14 F.3d at 195.
15 Nor do we find error in the agency’s denial of CAT relief. An applicant has
16 the burden to show that she is “more likely than not” to be tortured. 8 C.F.R.
17 § 1208.16(c)(2). “In assessing whether it is more likely than not that an applicant
18 would be tortured . . . all evidence relevant to the possibility of future torture shall
6 1 be considered, including, but not limited to: (i) Evidence of past torture inflicted
2 upon the applicant; (ii) Evidence that the applicant could relocate to a part of the
3 country of removal where he or she is not likely to be tortured; (iii) Evidence of
4 gross, flagrant or mass violations of human rights within the country of removal,
5 where applicable; and (iv) Other relevant information regarding conditions in the
6 country of removal.” Id. § 1208.16(c)(3). “[A]n alien will never be able to show
7 that [s]he faces a more likely than not chance of torture if one link in the chain
8 cannot be shown to be more likely than not to occur. It is the likelihood of all
9 necessary events coming together that must more likely than not lead to torture,
10 and a chain of events cannot be more likely than its least likely link.” Savchuck v.
11 Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (quoting In re J–F–F–, 23 I. & N. Dec. 912,
12 918 n. 4 (A.G. 2006)). A CAT claimant must show “that someone in [her] particular
13 alleged circumstances is more likely than not to be tortured.” Mu-Xing Wang v.
14 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003).
15 Manzanarez-Arias’s fear of torture is speculative. She was robbed and
16 extorted, but not physically harmed, much less harmed in a manner that would
17 constitute torture. “Torture is an extreme form of cruel and inhuman treatment
18 and does not include lesser forms of cruel, inhuman or degrading treatment or
7 1 punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Other than
2 her parents reporting that someone inquired about her whereabouts once after she
3 fled, she had no further contact and received no further threats from gang
4 members. And she did not submit any relevant country conditions evidence to
5 the agency. See 8 C.F.R. § 1208.16(c)(2), (3). Her allegation that she is likely to be
6 tortured is too speculative given the absence of past torture or other evidence
7 establishing that people who are extorted in Honduras are subject to torture. See
8 Savchuck, 518 F.3d at 123; Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir.
9 2003) (requiring a CAT applicant to “establish that there is greater than a fifty
10 percent chance . . . that [s]he will be tortured”).
11 For the foregoing reasons, the petition for review is DENIED. All pending
12 motions and applications are DENIED and stays VACATED.
13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court