21-6237 Ramirez-Gomez v. Bondi BIA Nelson, IJ A200 814 610
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 13th day of May, two thousand twenty- five.
PRESENT: JON O. NEWMAN, STEVEN J. MENASHI, MYRNA PÉREZ, Circuit Judges. _____________________________________
GERSON ANTULIO RAMIREZ-GOMEZ, Petitioner,
v. 21-6237 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Nicholas J. Mundy, Esq., Brooklyn, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; Anna Juarez, Senior Litigation Counsel; Kathryn McKinney, 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 Gerson Antulio Ramirez-Gomez, a native and citizen of
Guatemala, seeks review of a March 23, 2021, decision of the BIA affirming a
March 12, 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 Ramirez-Gomez, No. A 200 814 610 (B.I.A. Mar. 23, 2021),
aff’g No. A 200 814 610 (Immigr. Ct. N.Y.C. Mar. 12, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
“When the BIA issues an opinion, the opinion becomes the basis for judicial
review of the decision of which the alien is complaining.” Bhagtana v. Garland, 93
F.4th 592, 593 (2d Cir. 2023) (internal quotation marks omitted). While we have
nevertheless reviewed both the IJ’s and the BIA’s decisions “for the sake of 2 completeness,” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006), we have
reviewed the IJ’s decision as modified by the BIA, that is, without the adverse
credibility determination on which the BIA declined to rely, Xue Hong Yang v. DOJ,
426 F.3d 520, 522 (2d Cir. 2005). “We review the [agency’s] legal conclusions de
novo, and its factual findings … under the substantial evidence standard.” Y.C. v.
Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal quotation marks omitted). “[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 and Withholding of Removal
To establish eligibility for asylum and withholding of removal, Ramirez-
Gomez had to show that “race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one central reason for” his
persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v.
Garland, 52 F.4th 103, 105-06 (2d Cir. 2022) (concluding that the “one central
reason” standard applies to both asylum and withholding of removal). Ramirez-
Gomez asserted that he was and would be persecuted on account of his
membership in a particular social group; he therefore had the burden to establish
that the group was cognizable by demonstrating that members share “a common
3 immutable characteristic,” that the group is “defined with particularity,” and that
it is “socially distinct within the society in question.” Paloka v. Holder, 762 F.3d 191,
196 (2d Cir. 2014) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A.
2014)).
The agency did not err in concluding that Ramirez-Gomez failed to meet his
burden to show that his proposed particular social group of “young men from
indigenous locations in Guatemala recruited by gang members who resist such
recruitment” was cognizable. 1 Social distinction requires that “society as a whole
views [the] group as socially distinct.” Paloka, 762 F.3d at 196. Ramirez-Gomez
argues that the agency failed to consider the record and overlooked his testimony
that he was viewed or treated differently because he was indigenous. 2 He does
not provide a citation for such testimony, however, and our review of the record
1 Because this determination is dispositive of asylum and withholding of removal, we do not reach the agency’s alternative finding that Ramirez-Gomez failed to present evidence corroborating his past harm. See 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.”). 2 To the extent that Ramirez-Gomez argues that the agency failed to consider the record altogether, “we presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. DOJ, 471 F.3d 315, 336 n.17 (2d Cir. 2006), and Ramirez-Gomez has not identified evidence that was not discussed and could have changed the outcome. 4 reveals that he did not testify about how indigenous people are treated or
perceived in Guatemala. In any event, he did not claim that gang members
targeted him because he was indigenous but rather because of his membership in
a group of young men from indigenous regions who resist gang recruitment.
Accordingly, that was the group he had to show was perceived as distinct by
Guatemalan society.
Ramirez-Gomez further argues that the agency failed to consider whether
the gang views this group as socially distinct. He asserts that he established that it
does because gang members targeted him for being indigenous and for resisting
recruitment. But Ramirez-Gomez never testified that the gang singled him out
because he was indigenous, and even if he had, social distinction is about whether
society views a group as distinct and requires more than evidence of the
persecutors’ perception. “While a persecutor’s perception can be indicative of
whether society views a group as distinct, a persecutor’s perception alone is not
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21-6237 Ramirez-Gomez v. Bondi BIA Nelson, IJ A200 814 610
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 13th day of May, two thousand twenty- five.
PRESENT: JON O. NEWMAN, STEVEN J. MENASHI, MYRNA PÉREZ, Circuit Judges. _____________________________________
GERSON ANTULIO RAMIREZ-GOMEZ, Petitioner,
v. 21-6237 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Nicholas J. Mundy, Esq., Brooklyn, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; Anna Juarez, Senior Litigation Counsel; Kathryn McKinney, 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 Gerson Antulio Ramirez-Gomez, a native and citizen of
Guatemala, seeks review of a March 23, 2021, decision of the BIA affirming a
March 12, 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 Ramirez-Gomez, No. A 200 814 610 (B.I.A. Mar. 23, 2021),
aff’g No. A 200 814 610 (Immigr. Ct. N.Y.C. Mar. 12, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
“When the BIA issues an opinion, the opinion becomes the basis for judicial
review of the decision of which the alien is complaining.” Bhagtana v. Garland, 93
F.4th 592, 593 (2d Cir. 2023) (internal quotation marks omitted). While we have
nevertheless reviewed both the IJ’s and the BIA’s decisions “for the sake of 2 completeness,” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006), we have
reviewed the IJ’s decision as modified by the BIA, that is, without the adverse
credibility determination on which the BIA declined to rely, Xue Hong Yang v. DOJ,
426 F.3d 520, 522 (2d Cir. 2005). “We review the [agency’s] legal conclusions de
novo, and its factual findings … under the substantial evidence standard.” Y.C. v.
Holder, 741 F.3d 324, 332 (2d Cir. 2013) (internal quotation marks omitted). “[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 and Withholding of Removal
To establish eligibility for asylum and withholding of removal, Ramirez-
Gomez had to show that “race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one central reason for” his
persecution. 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v.
Garland, 52 F.4th 103, 105-06 (2d Cir. 2022) (concluding that the “one central
reason” standard applies to both asylum and withholding of removal). Ramirez-
Gomez asserted that he was and would be persecuted on account of his
membership in a particular social group; he therefore had the burden to establish
that the group was cognizable by demonstrating that members share “a common
3 immutable characteristic,” that the group is “defined with particularity,” and that
it is “socially distinct within the society in question.” Paloka v. Holder, 762 F.3d 191,
196 (2d Cir. 2014) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A.
2014)).
The agency did not err in concluding that Ramirez-Gomez failed to meet his
burden to show that his proposed particular social group of “young men from
indigenous locations in Guatemala recruited by gang members who resist such
recruitment” was cognizable. 1 Social distinction requires that “society as a whole
views [the] group as socially distinct.” Paloka, 762 F.3d at 196. Ramirez-Gomez
argues that the agency failed to consider the record and overlooked his testimony
that he was viewed or treated differently because he was indigenous. 2 He does
not provide a citation for such testimony, however, and our review of the record
1 Because this determination is dispositive of asylum and withholding of removal, we do not reach the agency’s alternative finding that Ramirez-Gomez failed to present evidence corroborating his past harm. See 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.”). 2 To the extent that Ramirez-Gomez argues that the agency failed to consider the record altogether, “we presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. DOJ, 471 F.3d 315, 336 n.17 (2d Cir. 2006), and Ramirez-Gomez has not identified evidence that was not discussed and could have changed the outcome. 4 reveals that he did not testify about how indigenous people are treated or
perceived in Guatemala. In any event, he did not claim that gang members
targeted him because he was indigenous but rather because of his membership in
a group of young men from indigenous regions who resist gang recruitment.
Accordingly, that was the group he had to show was perceived as distinct by
Guatemalan society.
Ramirez-Gomez further argues that the agency failed to consider whether
the gang views this group as socially distinct. He asserts that he established that it
does because gang members targeted him for being indigenous and for resisting
recruitment. But Ramirez-Gomez never testified that the gang singled him out
because he was indigenous, and even if he had, social distinction is about whether
society views a group as distinct and requires more than evidence of the
persecutors’ perception. “While a persecutor’s perception can be indicative of
whether society views a group as distinct, a persecutor’s perception alone is not
enough, by itself, to establish a cognizable social group.” Quintanillla-Mejia v.
Garland, 3 F.4th 569, 588 (2d Cir. 2021) (internal quotation marks omitted); see also
Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited
upon members of a group is attributable to the incentives presented to ordinary
5 criminals rather than to persecution, the scales are tipped away from considering
those people a ‘particular social group’ within the meaning of the [Immigration
and Nationality Act].”).
Moreover, to the extent that the BIA affirmed the IJ’s particularity finding,
that finding was also correct. 3 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); see
also Ordonez Azmen v. Barr, 965 F.3d 128, 135 (2d Cir. 2020) (explaining that
particularity requires that members of the society in question “generally agree on
who is included in the group”) (quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 221
(B.I.A. 2014)). Resistance to gang recruitment could encompass a broad range of
conduct, and the record does not include evidence of consensus about what
3 The IJ additionally concluded that the proposed group “may also not be immutable” because a person could leave an “indigenous location.” Admin. R. 41. But while a particular social group of people “in” a particular area might not be immutable, a person cannot change where he is “from.” See Paloka, 762 F.3d at 195 (explaining that an immutable characteristic is one that group members “either cannot change, or should not be required to change”) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985)). Any such error would not be material because the failure to demonstrate either social distinction or particularity is dispositive. See id. at 196. 6 constitutes resistance or who is considered “young” in Guatemala. Cf. Paloka, 762
F.3d at 198-99 (remanding when, among other things, “the petitioner ha[d] refined
the contours of her proposed social group during the proceedings to include a
specific age range … that finds support in the evidence”).
II. CAT
A CAT applicant “bears the burden of proving” that he “more likely than
not would be tortured by, or with the acquiescence of, government officials acting
in an official capacity.” Quintanilla-Mejia, 3 F.4th at 592 (internal quotation marks
omitted); see also 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). 4 To establish
acquiescence, the applicant must show that a “public official, prior to the activity
constituting torture, [will] have awareness of such activity and thereafter breach
his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R.
§ 1208.18(a)(7); see Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“[T]orture
requires only that government officials know of or remain willfully blind to an act
and thereafter breach their legal responsibility to prevent it.”); Pierre v. Gonzales,
502 F.3d 109, 118 (2d Cir. 2007) (“A private actor’s behavior can constitute torture
4 Citations are to the regulations in place at the time of the IJ’s decision. 7 under the CAT without a government’s specific intent to inflict it if a government
official is aware of the persecutor’s conduct and intent and acquiesces in violation
of the official’s duty to intervene.”). In evaluating a CAT claim, the agency
considers “all evidence relevant to the possibility of torture,” including past
torture, the applicant’s ability to relocate to a part of the country where he is not
likely to be tortured, and “gross, flagrant or mass violations of human rights
within the country of removal.” 8 C.F.R. § 1208.16(c)(3).
Ramirez-Gomez argues that the agency failed to consider country
conditions and evidence of police ineffectiveness and corruption, noting his
statements that the police were stationed far from his home and usually took about
a week to respond to reports. He also asserts that the agency overlooked his
“horrible encounters” with the police, Petitioner’s Br. 27, but it is not clear what he
is referencing because he never alleged before the agency that he had interactions
with the police. The country conditions evidence consists of a U.S. State
Department report, which relates that there are problems with gang violence and
that corruption is a human rights issue in Guatemala, but it also states that the
Guatemalan government is taking measures to control suspected gang members.
While some of this evidence could support a conclusion that the police would be
8 unable to protect Ramirez-Gomez, it does not compel a conclusion that a
Guatemalan official is likely to acquiesce to his torture. See Quintanilla-Mejia,
3 F.4th at 592 (holding that when “the agency’s conclusion finds support in record
evidence,” a petitioner “cannot secure CAT relief by pointing to conflicting
evidence that might support—but not compel—a different conclusion”); id. at 593-
94 (holding that the record did not compel a finding of acquiescence when the
petitioner had not reported prior gang assaults and country conditions evidence
showed both that gang violence persisted—including instances involving police
misconduct—and that the government was taking steps to combat gang violence).
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