20-2118 Olivares De Lizama v. Garland BIA Straus, IJ A209 418 019/020
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 17th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 JOHN M. WALKER, JR., 11 ALISON J. NATHAN, 12 Circuit Judges. 13 _____________________________________ 14 15 SARA NOEMI OLIVARES DE LIZAMA, 16 IKER EMANUEL LIZAMA-OLIVARES, 17 Petitioners, 18 19 v. 20-2118 20 NAC 21 MERRICK B. GARLAND, UNITED 22 STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONERS: Manuel D. Gomez, Manuel D. Gomez 27 & Associates, New York, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Cindy S. 3 Ferrier, Assistant Director; Sarai 4 M. Aldana, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioners Sara Noemi Olivares De Lizama and Iker
14 Emanuel Lizama-Olivares, natives and citizens of El Salvador,
15 seek review of a June 5, 2020, BIA decision affirming an April
16 26, 2018, decision of an Immigration Judge (“IJ”) denying
17 their application for asylum, withholding of removal, and
18 relief under the Convention Against Torture (“CAT”). In re
19 Sara Noemi Olivares De Lizama, Iker Emanuel Lizama-Olivares,
20 Nos. A209-418-019/020 (B.I.A. June 5, 2020), aff’g Nos. A209-
21 418-019/020 (Immig. Ct. Hartford Apr. 26, 2018). We assume
22 the parties’ familiarity with the underlying facts and
23 procedural history.
24 We have reviewed the IJ’s decision as modified by the
25 BIA, i.e., minus the IJ’s findings regarding whether Olivares
26 De Lizama’s proposed social groups were cognizable. See Ming
2 1 Xia Chen v. Bd. of Immigr. Appeals, 435 F.3d 141, 144 (2d
2 Cir. 2006). The agency did not err in finding that Olivares
3 De Lizama failed to establish her eligibility for relief based
4 on gang extortion and threats or in denying her request for
5 a continuance to submit corroborating affidavits.
6 I. Asylum and Withholding of Removal
7 The applicable standards of review are well established.
8 See 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings
9 of fact are conclusive unless any reasonable adjudicator
10 would be compelled to conclude to the contrary[.]”); Weng v.
11 Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual
12 findings for substantial evidence and questions of law de
13 novo). To establish eligibility for asylum and withholding
14 of removal, an applicant must establish past persecution or
15 a well-founded fear or likelihood of persecution on account
16 of “race, religion, nationality, membership in a particular
17 social group, or political opinion.” 8 U.S.C.
18 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b),
19 1208.16(b).
20 The agency reasonably found that Olivares De Lizama
21 failed to establish that she suffered past persecution
22 because she personally experienced only one unfulfilled
3 1 threat in El Salvador. See Mei Fun Wong v. Holder, 633 F.3d
2 64, 72 (2d Cir. 2011) (“[P]ersecution is an extreme concept
3 that does not include every sort of treatment our society
4 regards as offensive.” (internal quotation marks omitted));
5 Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006)
6 (recognizing that unfulfilled threats do not constitute past
7 persecution). Because the record does not support the
8 conclusion that Olivares De Lizama endured past persecution,
9 she was not entitled to a presumption of a well-founded fear
10 or likelihood of persecution and thus had the burden to
11 establish that she had such a fear on account of a protected
12 ground. See 8 C.F.R. §§ 1208.13(b), 1208.16(b).
13 Olivares De Lizama did not carry that burden. She
14 proposed social groups consisting of single women and of her
15 family. “To succeed on a particular social group claim, the
16 applicant must establish both that the group itself was
17 cognizable, and that the alleged persecutors targeted the
18 applicant on account of her membership in that group.”
19 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (internal
20 quotation marks and citations omitted). “The applicant must
21 . . . show, through direct or circumstantial evidence, that
22 the persecutor’s motive to persecute arises from [a protected
4 1 ground].” Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.
2 2005). The agency reasonably concluded that, even assuming
3 Olivares De Lizama’s social groups were cognizable, she
4 failed to establish a nexus between the harm she fears and
5 her membership in those groups because her testimony
6 demonstrated that the gang initiated each interaction with
7 her and her family for financial gain or punishment for their
8 lack of obeisance. See Ucelo-Gomez v. Mukasey, 509 F.3d 70,
9 73 (2d Cir. 2007) (“When the harm visited upon members of a
10 group is attributable to the incentives presented to ordinary
11 criminals rather than to persecution, the scales are tipped
12 away from considering those people a ‘particular social
13 group[.]’”); Melgar de Torres v. Reno, 191 F.3d 307, 313–14
14 (2d Cir. 1999) (explaining that “random violence” and
15 “general crime conditions” are not grounds for asylum).
16 Further, contrary to Olivares De Lizama’s contention, the BIA
17 did not err in citing Matter of A-B-, 27 I. & N. Dec. 316
18 (A.G. 2018), vacated, Matter of A-B-, 28 I. & N. Dec. 307
19 (A.G. 2021), because it did so solely for the long-settled
20 principle that it was not required to decide an issue that
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20-2118 Olivares De Lizama v. Garland BIA Straus, IJ A209 418 019/020
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 17th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 JOHN M. WALKER, JR., 11 ALISON J. NATHAN, 12 Circuit Judges. 13 _____________________________________ 14 15 SARA NOEMI OLIVARES DE LIZAMA, 16 IKER EMANUEL LIZAMA-OLIVARES, 17 Petitioners, 18 19 v. 20-2118 20 NAC 21 MERRICK B. GARLAND, UNITED 22 STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONERS: Manuel D. Gomez, Manuel D. Gomez 27 & Associates, New York, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Cindy S. 3 Ferrier, Assistant Director; Sarai 4 M. Aldana, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioners Sara Noemi Olivares De Lizama and Iker
14 Emanuel Lizama-Olivares, natives and citizens of El Salvador,
15 seek review of a June 5, 2020, BIA decision affirming an April
16 26, 2018, decision of an Immigration Judge (“IJ”) denying
17 their application for asylum, withholding of removal, and
18 relief under the Convention Against Torture (“CAT”). In re
19 Sara Noemi Olivares De Lizama, Iker Emanuel Lizama-Olivares,
20 Nos. A209-418-019/020 (B.I.A. June 5, 2020), aff’g Nos. A209-
21 418-019/020 (Immig. Ct. Hartford Apr. 26, 2018). We assume
22 the parties’ familiarity with the underlying facts and
23 procedural history.
24 We have reviewed the IJ’s decision as modified by the
25 BIA, i.e., minus the IJ’s findings regarding whether Olivares
26 De Lizama’s proposed social groups were cognizable. See Ming
2 1 Xia Chen v. Bd. of Immigr. Appeals, 435 F.3d 141, 144 (2d
2 Cir. 2006). The agency did not err in finding that Olivares
3 De Lizama failed to establish her eligibility for relief based
4 on gang extortion and threats or in denying her request for
5 a continuance to submit corroborating affidavits.
6 I. Asylum and Withholding of Removal
7 The applicable standards of review are well established.
8 See 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings
9 of fact are conclusive unless any reasonable adjudicator
10 would be compelled to conclude to the contrary[.]”); Weng v.
11 Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual
12 findings for substantial evidence and questions of law de
13 novo). To establish eligibility for asylum and withholding
14 of removal, an applicant must establish past persecution or
15 a well-founded fear or likelihood of persecution on account
16 of “race, religion, nationality, membership in a particular
17 social group, or political opinion.” 8 U.S.C.
18 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b),
19 1208.16(b).
20 The agency reasonably found that Olivares De Lizama
21 failed to establish that she suffered past persecution
22 because she personally experienced only one unfulfilled
3 1 threat in El Salvador. See Mei Fun Wong v. Holder, 633 F.3d
2 64, 72 (2d Cir. 2011) (“[P]ersecution is an extreme concept
3 that does not include every sort of treatment our society
4 regards as offensive.” (internal quotation marks omitted));
5 Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006)
6 (recognizing that unfulfilled threats do not constitute past
7 persecution). Because the record does not support the
8 conclusion that Olivares De Lizama endured past persecution,
9 she was not entitled to a presumption of a well-founded fear
10 or likelihood of persecution and thus had the burden to
11 establish that she had such a fear on account of a protected
12 ground. See 8 C.F.R. §§ 1208.13(b), 1208.16(b).
13 Olivares De Lizama did not carry that burden. She
14 proposed social groups consisting of single women and of her
15 family. “To succeed on a particular social group claim, the
16 applicant must establish both that the group itself was
17 cognizable, and that the alleged persecutors targeted the
18 applicant on account of her membership in that group.”
19 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (internal
20 quotation marks and citations omitted). “The applicant must
21 . . . show, through direct or circumstantial evidence, that
22 the persecutor’s motive to persecute arises from [a protected
4 1 ground].” Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.
2 2005). The agency reasonably concluded that, even assuming
3 Olivares De Lizama’s social groups were cognizable, she
4 failed to establish a nexus between the harm she fears and
5 her membership in those groups because her testimony
6 demonstrated that the gang initiated each interaction with
7 her and her family for financial gain or punishment for their
8 lack of obeisance. See Ucelo-Gomez v. Mukasey, 509 F.3d 70,
9 73 (2d Cir. 2007) (“When the harm visited upon members of a
10 group is attributable to the incentives presented to ordinary
11 criminals rather than to persecution, the scales are tipped
12 away from considering those people a ‘particular social
13 group[.]’”); Melgar de Torres v. Reno, 191 F.3d 307, 313–14
14 (2d Cir. 1999) (explaining that “random violence” and
15 “general crime conditions” are not grounds for asylum).
16 Further, contrary to Olivares De Lizama’s contention, the BIA
17 did not err in citing Matter of A-B-, 27 I. & N. Dec. 316
18 (A.G. 2018), vacated, Matter of A-B-, 28 I. & N. Dec. 307
19 (A.G. 2021), because it did so solely for the long-settled
20 principle that it was not required to decide an issue that
21 was “unnecessary to the results [it] reach[ed].” I.N.S. v.
22 Bagamasbad, 429 U.S. 24, 25 (1976).
5 1 II. CAT Relief
2 Unlike asylum and withholding of removal, protection
3 under the CAT does not require a nexus to a protected ground.
4 See 8 C.F.R. §§ 1208.16(c), 1208.17(a). CAT applicants have
5 the burden to show they would “more likely than not” be
6 tortured by or with the acquiescence of government officials.
7 Id. §§ 1208.16(c), 1208.18(a); see also Khouzam v. Ashcroft,
8 361 F.3d 161, 168, 170–71 (2d Cir. 2004). The agency
9 reasonably concluded that Olivares De Lizama did not
10 establish a likelihood of torture with government
11 acquiescence because her similarly situated family members
12 remain unharmed in El Salvador, and the government
13 successfully prosecuted and imprisoned a gang member who had
14 extorted her family. See Khouzam, 361 F.3d at 171 (holding
15 that for the purpose of “state action [under CAT], torture
16 requires only that government officials know of or remain
17 willfully blind to an act and thereafter breach their legal
18 responsibility to prevent it”); cf. Melgar de Torres, 191
19 F.3d at 313 (finding fear of future persecution weakened when
20 similarly situated family members remain unharmed in
6 1 petitioner’s native country).
2 III. Continuance
3 We review the agency’s denial of a continuance for abuse
4 of discretion. See Morgan v. Gonzales, 445 F.3d 549, 551 (2d
5 Cir. 2006). An IJ “may grant a motion for continuance for
6 good cause shown,” 8 C.F.R. § 1003.29, and only “abuse[s] his
7 discretion in denying a continuance if (1) his decision rests
8 on an error of law (such as application of the wrong legal
9 principle) or a clearly erroneous factual finding or (2) his
10 decision—though not necessarily the product of a legal error
11 or a clearly erroneous factual finding—cannot be located
12 within the range of permissible decisions,” Morgan, 445 F.3d
13 at 551–52 (internal quotation marks, alterations, and
14 citation omitted). The IJ did not abuse his discretion in
15 denying a continuance because Olivares De Lizama had more
16 than five months to obtain affidavits from El Salvador and
17 because she could not show that corroborating affidavits
18 would change the outcome given that the IJ fully credited her
19 testimony without corroboration. See id.; cf. Elbahja v.
20 Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (concluding that an
21 IJ does not abuse his discretion by denying a continuance
7 1 sought to pursue relief that is speculative).
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 8