23-6257 Najarro-Morales v. Garland BIA Ling, IJ A212 982 790
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of November, two thousand twenty-four.
PRESENT: GUIDO CALABRESI, WILLIAM J. NARDINI, ALISON J. NATHAN, Circuit Judges. _____________________________________
FRANKLIN ANTONIO NAJARRO- MORALES, Petitioner,
v. 23-6257 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Bruno J. Bembi, Esq., Hempstead, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Michele Y. F. Sarko, Senior Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Franklin Antonio Najarro-Morales, a native and citizen of El
Salvador, seeks review of a March 1, 2023, decision of the BIA affirming a June 26,
2019, decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Franklin Antonio Najarro-Morales, No. A212 982 790 (B.I.A. Mar. 1,
2023), aff’g No. A212 982 790 (Immig. Ct. N.Y. City Jun. 26, 2019). We assume the
parties’ familiarity with the underlying facts and procedural history.
We have reviewed the IJ’s decision as modified by the BIA, considering only
the grounds the BIA relied on. See Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d
Cir. 2005). We review factual findings for substantial evidence and questions of
law de novo. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (“Courts review
de novo the legal determination of whether a group constitutes a ‘particular social 2 group’ under the [Immigration and Nationality Act].”); Edimo-Doualla v. Gonzales,
464 F.3d 276, 282–83 (2d Cir. 2006) (applying substantial evidence standard to
nexus determination). “[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
I. Asylum & Withholding of Removal
A. Particular Social Groups
To obtain asylum or withholding of removal, an applicant must establish
past persecution or a well-founded fear of future persecution on account of a
protected ground. See 8 C.F.R. §§ 1208.13(b), 1208.16(b)(1), (2). Najarro-Morales
proposed particular social groups of (1) “individuals abused by the police because
they suspect the victim is a member of a gang”; and (2) “individual[s] who [are]
suspected by the gangs of being an informant against the gang.” An applicant
has the burden to establish that a proposed group is cognizable. Paloka, 762 F.3d
at 195. A cognizable social group is “(1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” Id. at 196 (quoting Matter of M-E-V-G-, 26
I. & N. Dec. 227, 237 (B.I.A. 2014)); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–
3 74 (2d Cir. 2007). Particularity requires that the group be “defined by
characteristics that provide a clear benchmark for determining who falls within
the group” and that membership not be “amorphous, overbroad, diffuse, or
subjective.” Paloka, 762 F.3d at 196 (quoting M–E–V–G–, 26 I. & N. Dec. at 239).
Social distinction requires that “society as a whole views [the] group as socially
distinct.” Id. (citing M–E–V–G, 26 I. & N. Dec. at 242).
The agency applied the correct standard for determining whether Najarro-
Morales’s proposed social groups are cognizable. Najarro-Morales argues that
the IJ should have applied pre-Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) (“A-
B- I”) precedent because A-B- I was vacated by Matter of A-B-, 28 I. & N. Dec. 307,
309 (A.G. 2021) (“A-B- III”). In fact, the IJ did rely on pre-A-B- I precedent when
it relied on Matter of W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014), M-E-V-G-, and Gashi
v. Holder, 702 F.3d 130 (2d Cir. 2012), in concluding that the proposed social groups
were not cognizable. That was not an error. See A-B- III, 28 I. & N. Dec. at 308–
09 (instructing IJs and BIA to rely on pre-A-B- I precedent).
Nor did the agency err in concluding that Najarro-Morales’s proposed social
groups were not cognizable. The agency reasonably concluded that his definition
of the first group was circular. “Persecutory conduct aimed at a social group
4 cannot alone define the group, which must exist independently of the
persecution,” and Najarro-Morales defined the group by the abuse inflicted, i.e.,
that the group was those abused by the police because of suspected gang
affiliation. Paloka, 762 F.3d at 196. He alleged that the police abused him because
he did not have identification and they suspected him of being a criminal, not
because of some immutable characteristic. See id. at 198 (“[A] particular social
group is not cognizable merely because members have been subjected to harm.”
(quotation marks omitted)).
The agency did not err in finding that the second proposed group of
informants against the gang was not cognizable. In Gashi v. Holder, 702 F.3d 130
(2d Cir. 2012), we found a cognizable social group of witnesses where the group
consisted of individuals who had witnessed war crimes in Serbia, cooperated with
international investigators, and had their names published on a list of potential
witnesses. 702 F.3d at 137. Here, nothing in the record suggests that Najarro-
Morales served as a witness against his attackers. Accordingly, Najarro-
Morales’s proposed group of suspected informants could include any individual
who had ever reported a crime or been stopped or questioned by the police about
a crime, and there was no evidence that society considered the group to be distinct.
5 See id.
B.
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23-6257 Najarro-Morales v. Garland BIA Ling, IJ A212 982 790
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of November, two thousand twenty-four.
PRESENT: GUIDO CALABRESI, WILLIAM J. NARDINI, ALISON J. NATHAN, Circuit Judges. _____________________________________
FRANKLIN ANTONIO NAJARRO- MORALES, Petitioner,
v. 23-6257 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Bruno J. Bembi, Esq., Hempstead, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Michele Y. F. Sarko, Senior Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Franklin Antonio Najarro-Morales, a native and citizen of El
Salvador, seeks review of a March 1, 2023, decision of the BIA affirming a June 26,
2019, decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Franklin Antonio Najarro-Morales, No. A212 982 790 (B.I.A. Mar. 1,
2023), aff’g No. A212 982 790 (Immig. Ct. N.Y. City Jun. 26, 2019). We assume the
parties’ familiarity with the underlying facts and procedural history.
We have reviewed the IJ’s decision as modified by the BIA, considering only
the grounds the BIA relied on. See Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d
Cir. 2005). We review factual findings for substantial evidence and questions of
law de novo. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (“Courts review
de novo the legal determination of whether a group constitutes a ‘particular social 2 group’ under the [Immigration and Nationality Act].”); Edimo-Doualla v. Gonzales,
464 F.3d 276, 282–83 (2d Cir. 2006) (applying substantial evidence standard to
nexus determination). “[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
I. Asylum & Withholding of Removal
A. Particular Social Groups
To obtain asylum or withholding of removal, an applicant must establish
past persecution or a well-founded fear of future persecution on account of a
protected ground. See 8 C.F.R. §§ 1208.13(b), 1208.16(b)(1), (2). Najarro-Morales
proposed particular social groups of (1) “individuals abused by the police because
they suspect the victim is a member of a gang”; and (2) “individual[s] who [are]
suspected by the gangs of being an informant against the gang.” An applicant
has the burden to establish that a proposed group is cognizable. Paloka, 762 F.3d
at 195. A cognizable social group is “(1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” Id. at 196 (quoting Matter of M-E-V-G-, 26
I. & N. Dec. 227, 237 (B.I.A. 2014)); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–
3 74 (2d Cir. 2007). Particularity requires that the group be “defined by
characteristics that provide a clear benchmark for determining who falls within
the group” and that membership not be “amorphous, overbroad, diffuse, or
subjective.” Paloka, 762 F.3d at 196 (quoting M–E–V–G–, 26 I. & N. Dec. at 239).
Social distinction requires that “society as a whole views [the] group as socially
distinct.” Id. (citing M–E–V–G, 26 I. & N. Dec. at 242).
The agency applied the correct standard for determining whether Najarro-
Morales’s proposed social groups are cognizable. Najarro-Morales argues that
the IJ should have applied pre-Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) (“A-
B- I”) precedent because A-B- I was vacated by Matter of A-B-, 28 I. & N. Dec. 307,
309 (A.G. 2021) (“A-B- III”). In fact, the IJ did rely on pre-A-B- I precedent when
it relied on Matter of W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014), M-E-V-G-, and Gashi
v. Holder, 702 F.3d 130 (2d Cir. 2012), in concluding that the proposed social groups
were not cognizable. That was not an error. See A-B- III, 28 I. & N. Dec. at 308–
09 (instructing IJs and BIA to rely on pre-A-B- I precedent).
Nor did the agency err in concluding that Najarro-Morales’s proposed social
groups were not cognizable. The agency reasonably concluded that his definition
of the first group was circular. “Persecutory conduct aimed at a social group
4 cannot alone define the group, which must exist independently of the
persecution,” and Najarro-Morales defined the group by the abuse inflicted, i.e.,
that the group was those abused by the police because of suspected gang
affiliation. Paloka, 762 F.3d at 196. He alleged that the police abused him because
he did not have identification and they suspected him of being a criminal, not
because of some immutable characteristic. See id. at 198 (“[A] particular social
group is not cognizable merely because members have been subjected to harm.”
(quotation marks omitted)).
The agency did not err in finding that the second proposed group of
informants against the gang was not cognizable. In Gashi v. Holder, 702 F.3d 130
(2d Cir. 2012), we found a cognizable social group of witnesses where the group
consisted of individuals who had witnessed war crimes in Serbia, cooperated with
international investigators, and had their names published on a list of potential
witnesses. 702 F.3d at 137. Here, nothing in the record suggests that Najarro-
Morales served as a witness against his attackers. Accordingly, Najarro-
Morales’s proposed group of suspected informants could include any individual
who had ever reported a crime or been stopped or questioned by the police about
a crime, and there was no evidence that society considered the group to be distinct.
5 See id.
B. Imputed Political Opinion
The BIA reasonable concluded that Najarro-Morales waived any claim that
he was targeted by the gang or the police for an imputed political opinion. “[T]he
BIA may refuse to consider an issue that could have been, but was not, raised
before an IJ.” Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015). Najarro-
Morales does not challenge the BIA’s waiver finding. Accordingly, he has
abandoned his political opinion claim by not challenging the BIA’s reason for
rejecting it. See Prabhudial, 780 F.3d at 555–56 (“[T]his Court’s review is limited to
whether the BIA erred in deeming the argument waived.”); see also Debique v.
Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not
adequately presented in an appellant’s brief, and an appellant’s failure to make
legal or factual arguments constitutes abandonment.” (quotation marks omitted)).
Najarro-Morales’s additional arguments about asylum and withholding of
removal are misplaced because the BIA did not reach the IJ’s alternative findings.
See Yang, 426 F.3d at 522; see also 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.”).
6 II. CAT Relief
A CAT applicant has the burden to show that he will “more likely than not,”
8 C.F.R. § 1208.16(c)(2), be tortured by or with the acquiescence of government
officials. See 8 C.F.R. § 1208.18(a)(1). “Torture is defined as any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person . . . by, or at the instigation of, or with the consent or acquiescence of, a
public official.” Id. “In assessing whether it is more likely than not that an
applicant would be tortured . . . all evidence relevant to the possibility of future
torture shall be considered, including, but not limited to . . . [e]vidence of past
torture,” ability to relocate within the country, “[e]vidence of gross, flagrant or
mass violations of human rights within the country of removal,” and “[o]ther
relevant information regarding conditions in the country of removal.”
8 C.F.R § 1208.16(c)(3). Substantial evidence supports the agency’s conclusion
that Najarro-Morales failed to establish likely torture. See Quintanilla-Mejia v.
Garland, 3 F.4th 569, 592–94 (2d Cir. 2021) (applying substantial evidence review
to determinations of likelihood of torture and acquiescence).
An applicant must “establish[] that someone in his particular alleged
circumstances is more likely than not to be tortured.” Mu-Xing Wang v. Ashcroft,
7 320 F.3d 130, 144 (2d Cir. 2003). Najarro-Morales submitted no evidence that
police are looking for him or even know his name given that he had no
identification on him when they beat him, he testified that he left El Salvador
because he feared gangs, not the police, and the police did not seek him out in the
10 months that he remained in El Salvador after the one incident with the police.
As to his fear of torture by gangs, there is no indication the gang members who
shot at his house continue to look for him. And he did not establish that the police
would more likely than not acquiesce to his torture by gangs given evidence of the
authorities’ actions against gang activity. See Quintanillla-Mejia, 3 F.4th at 593–94
(“[S]ubstantial evidence review does not contemplate any judicial reweighing of
evidence. Rather, it requires us to ask only whether record evidence compelled
a[] . . . finding different from that reached by the agency.”).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court