Rodas Rosales v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: December 15, 2020
• Docket: 17-2536 (L)
• Status: Unpublished

Opinion

17-2536 (L) Rodas Rosales v. Barr BIA Weisel, IJ A202 126 402/403 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 TO 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 15th day of December, two thousand twenty.

PRESENT: JON O. NEWMAN, PIERRE N. LEVAL, MICHAEL H. PARK, Circuit Judges.* _____________________________________

GERSON ELISEO RODAS ROSALES, M.R.G., Petitioners,

v. 17-2536 (L); 18-1088 (Con) NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

* Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b). FOR PETITIONERS: Andrea Sáenz, Brooklyn Defender Services, Brooklyn, NY.

Nancy Morawetz, Jessica Swensen, Supervising Attorneys; Devika M. Balaram; Kevin Siegel, Student Interns, Washington Square Legal Services, Inc., New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Shelley R. Goad, Assistant Director; Carmel A. Morgan, 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.

Petitioners Gerson Eliseo Rodas Rosales and M.R.G.,

natives and citizens of El Salvador, seek review of two BIA

decisions: (1) a July 2017, decision affirming a November 2016,

decision of an Immigration Judge (“IJ”) denying Rodas

Rosales’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”), and

(2) a March 2018 decision denying a motion to reopen. In re

Gerson Eliseo Rodas Rosales and M.R.G., No. A 202 126 402/403

(B.I.A. July 31, 2017), aff’g Nos. A 202 126 402/403 (Immig.

2 Ct. N.Y. City Nov. 16, 2016); In re Gerson Eliseo Rodas

Rosales and M.R.G., Nos. A 202 126 402/403 (B.I.A. Mar. 22,

2018). We assume the parties’ familiarity with the

underlying facts and procedural history.

I. Lead Case

Under the circumstances, we have reviewed the IJ’s

decision as supplemented by the BIA. See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the

agency’s legal conclusions de novo and its factual findings

under the substantial evidence standard. See Y.C. v. Holder,

741 F.3d 325, 332 (2d Cir. 2013).

A. Asylum and Withholding of Removal

For asylum and withholding of removal, an “applicant must

establish that race, religion, nationality, membership in a

particular social group, or political opinion was or will be

at least one central reason for” the claimed persecution. 8

U.S.C. §§ 1158(b)(1)(B)(i) (asylum), 1231(b)(3)(A)

(withholding); see also Matter of C-T-L, 25 I. & N. Dec. 341,

346 (BIA 2010) (holding that the “one central reason” standard

also applies to withholding of removal). To constitute a

particular social group, a group must be “(1) composed of

3 members who share a common immutable characteristic,

(2) defined with particularity, and (3) socially distinct

within the society in question.” Matter of M-E-V-G-, 26 I.

& N. Dec. 227, 237 (BIA 2014); see also Paloka v. Holder, 762

F.3d 191, 195–97 (2d Cir. 2014) (deferring to BIA’s particular

social group requirements). “To be socially distinct, a

group . . . must be perceived as a group by society.” Matter

of M-E-V-G-, 26 I. & N. Dec. at 240.

1. Security Guards

The agency did not err in determining that Rodas

Rosales’s proposed social group of security guards was not

cognizable. Rodas Rosales has waived any challenge to the

agency’s social distinction determination by failing to

address it in his opening brief. See Norton v. Sam’s Club,

145 F.3d 114, 117 (2d Cir. 1998).

Additionally, the agency reasonably determined that

employment as a security guard was not an immutable

characteristic. An “immutable characteristic” is one that

members of the group “either cannot change, or should not be

required to change because it is fundamental to their

individual identities or consciences.” Ucelo-Gomez v.

4 Mukasey, 509 F.3d 70, 72–73 (2d Cir. 2007) (internal quotation

marks omitted). The BIA has held that employment generally

is not an immutable characteristic and that “the

internationally accepted concept of a refugee simply does not

guarantee an individual a right to work in the job of his

choice.” Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA

1985), overruled in part on other grounds by Matter of

Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Rodas Rosales

does not explain why his employment as a security guard is a

characteristic that he “cannot . . . or should not be

required to change.” Ucelo-Gomez, 509 F.3d at 73.

Accordingly, the agency did not err in determining that Rodas

cognizable and thus that his past harm was not persecution on

account of a protected ground as required for asylum and

withholding of removal. See Matter of M-E-V-G-, 26 I. & N.

Dec. at 237. Because the lack of a cognizable social group

is dispositive of this claim of past harm, we do not reach

whether Rodas Rosales’s status as a security guard was “one

central reason” for the harm he suffered. See INS v.

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts

5 and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”).

2. Former Security Guards

Rodas Rosales argues that the IJ overlooked his proposed

social group of former security guards and that the BIA then

engaged in impermissible factfinding by addressing this claim

on appeal. We find no error. The BIA reviews an IJ’s factual

findings for clear error and reviews de novo “questions of

law, discretion, and judgment and all other issues in appeals

from [IJ] decisions.” 8 C.F.R. § 1003.1(d)(3)(i), (ii).

“Except for taking administrative notice of commonly known

facts . . . or the contents of official documents, the Board

will not engage in factfinding in the course of deciding

appeals.” 8 C.F.R. § 1003.1(d)(3)(iv).

Although the BIA may not make findings of fact in the

first instance, the BIA was permitted to evaluate the record

to determine whether the IJ overlooked a viable claim. See

Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010) (“[I]f

incomplete findings of fact are entered by an IJ and the BIA

cannot affirm . . . on the basis that he or she decided the

case and if the dispositive issue is [not] sufficiently clear,

6 [the] BIA has said it will remand to the IJ for further fact-

finding.” (internal quotation marks omitted)); see 8 C.F.R.

§ 1003.1(d)(3)(iv) (“A party asserting that the Board cannot

properly resolve an appeal without further factfinding must

file a motion for remand. If further factfinding is needed

in a particular case, the Board may remand the proceeding to

the [IJ] . . . .”). The BIA reasonably determined that there

was not a sufficient basis for remand for factfinding on a

proposed social group of former security guards.

In closing, Rodas Rosales’s counsel stated that Rodas

Rosales would face persecution based on his former employment

as a security guard. But the statements of counsel are not

evidence. See INS v. Phinpathya, 464 U.S. 183, 188 n.6

(1984). Rodas Rosales did not testify that gang members

would harm him in the future because he was a former security

guard and his testimony reflects that gangs target security

guards because of their current employment, i.e., for their

weapons, because they are protecting a place that gangs want

to enter, or because they interfere with the gangs’

extortion activities. And there was no country conditions

evidence regarding the targeting of former security guards or

7 that Salvadoran society perceives former security guards as

a group. Accordingly, the BIA did not err in declining to

remand. See 8 C.F.R. § 1003.1(d)(3)(iv).

B. CAT

An applicant for CAT relief has the burden to show that

“it is more likely than not” that he will be tortured, but he

need not show any connection to a protected ground. See 8

C.F.R. § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161,

168 (2d Cir. 2004). To constitute torture under the CAT, the

likely harm must be “inflicted by or at the instigation of or

with the consent or acquiescence of a public official or other

person acting in an official capacity.” 8 C.F.R.

§ 1208.18(a)(1). “Acquiescence of a public official requires

that the public official, prior to the activity constituting

torture, have awareness of such activity and thereafter

breach his or her legal responsibility to intervene to prevent

such activity.” Id. § 1208.18(a)(7). Cognizable

acquiescence “requires only that government officials know of

or remain willfully blind to an act and thereafter breach

their legal responsibility to prevent it.” Khouzam, 361 F.3d

at 171.

8 The agency did not err in concluding that Rodas Rosales

failed to show that Salvadoran authorities would more likely

than not acquiesce to his torture by gang members. Because

Rodas Rosales did not report any threats to the police, he

could not establish that the Salvadoran police knew about or

were willfully blind to the gang members’ specific threats.

He asserted that he heard about the police informing the gangs

when people made complaints. He did not have specific

examples or explain how he learned this information;

therefore, although the agency found him credible, it was not

required to accept his conclusions regarding country

conditions. Although there is country conditions evidence

of police corruption and collusion between some police

officers and gang members, Rodas Rosales did not establish

widespread corruption of the police forces by gang members or

that the police would acquiesce specifically to harm that he

might suffer. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130,

144 (2d Cir. 2003) (holding that an applicant for CAT relief

must show a likelihood of torture in “his particular alleged

circumstances”). And he did not provide evidence as to what

steps the police would take if he reported threats from gang

9 members. Accordingly, given the limited evidence of

collusion between gang members and the police and the lack of

particularized evidence that government officials would

acquiesce to his torture, the evidence does not compel a

finding that Rodas Rosales will more likely than not be

tortured by gangs with the acquiescence of the Salvadoran

authorities. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”).

Additionally, although the IJ’s reliance on Matter of S-

V- was misplaced because torture by entities a government is

unable to control may be sufficient to state a CAT claim where

there is evidence that the harm is likely to occur and the

government is or should be aware of that likely harm, see

Khouzam, 361 F.3d at 171, remand would be futile because Rodas

Rosales presented minimal evidence of torture in his

particular circumstance or that that the government would

remain willfully blind to his torture by gang members. See

Mu-Xing Wang, 320 F.3d at 144.

10 II. Consolidated Case – Motion to Reopen

We review the BIA’s denial of a motion to reopen for

abuse of discretion but review factual findings regarding

country conditions for substantial evidence. See Jian Hui

Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). “[A]

motion to reopen shall state the new facts that will

be proven at a hearing to be held if the motion is granted,

and shall be supported by affidavits or other evidentiary

material.” 8 U.S.C. § 1229a(c)(7)(B); see 8 C.F.R.

§ 1003.2(c)(1). “A motion to reopen proceedings shall not

be granted unless . . . evidence sought to be offered is

material and was not available and could not have been

discovered or presented at the former hearing.” 8 C.F.R.

§ 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104

(1988).

The BIA did not abuse its discretion by denying Rodas

Rosales’s motion to reopen. First, an expert opinion could

have been obtained and presented at the merits hearing.

Although the expert cites killings of security guards in 2017,

the expert does not explain how this is a significant change

from 2016 and noted that infiltration of gangs into the police

11 and information sharing between gangs and the police

“continued unabated in 2017.” See 8 C.F.R. § 1003.2(c)(1).

Second, although Rodas Rosales presented news articles

and reports that postdated his hearing before the IJ, the

evidence was cumulative of or reinforced country conditions

evidence already in the record. For example, before the IJ,

Rodas Rosales submitted evidence that 60 private security

guards were killed in 2016 and that 90 employees of private

security guards were killed in 2015. Thus, the BIA

reasonably determined that evidence of more killings of

security guards in 2017 was not new or material evidence as

required for remand. Relatedly, the BIA did not apply an

incorrect standard for reopening. See Jian Hui Shao, 546

F.3d at 168 (requiring a movant to, “show a realistic chance

that []he will be able to obtain . . . relief” and requiring

“alien to carry the heavy burden of demonstrating that the

proffered new evidence would likely alter the result in h[is]

case.” (internal quotation marks and citations omitted)).

Moreover, Rodas Rosales did not demonstrate a realistic

chance that he would be eligible for relief because his new

evidence did not remedy the defects in his claim: working as

12 a security guard is not an immutable characteristic and his

evidence did not reflect that gangs target former security

guards. The BIA was not required to provide further

explanation regarding specific pieces of evidence. See id.

at 169 (“[W]e do not demand that the BIA expressly parse or

refute on the record each individual argument or piece of

evidence offered by the petitioner.” (internal quotation

marks omitted)); Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

Cir. 2006) (“While the BIA must consider such evidence, it

may do so in summary fashion without a reviewing court

presuming that it has abused its discretion.”).

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