19-4233 Rodriguez-Figueroa v. Garland BIA Baumgarten, IJ A215 673 382 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 22nd day of September, two thousand twenty-three.
Present: DENNY CHIN, WILLIAM J. NARDINI, ALISON J. NATHAN, Circuit Judges. _____________________________________
ELMER AUGUSTO RODRIGUEZ- FIGUEROA,
Petitioner,
v. 19-4233
MERRICK B. GARLAND, United States Attorney General,
Respondent. _____________________________________
For Petitioner: JAMES Y. PARK (Edmund Polubinski III, Daniel S. Magy, on the brief), Davis Polk & Wardwell LLP, New York, NY
For Respondent: JOANNA L. WATSON, Trial Attorney (Brian Boynton, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director, on the brief), 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 GRANTED in part and DENIED in part.
Petitioner Elmer Augusto Rodriguez-Figueroa, a native and citizen of Honduras, seeks
review of a December 5, 2019, decision of the BIA affirming a June 24, 2019, decision of an
Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). In re Elmer Augusto Rodriguez-Figueroa, No. A 215 673
382 (B.I.A. Dec. 5, 2019), aff’g No. A 215 673 382 (Immig. Ct. Batavia June 24, 2019). We
assume the parties’ familiarity with the case.
The IJ denied asylum and withholding of removal on several grounds. First, the IJ
concluded that although Rodriguez-Figueroa’s testimony was generally credible, he failed to
sufficiently corroborate his testimony regarding persecution. The IJ noted in the alternative that
even if his testimony was sufficiently corroborated, his testimony failed to demonstrate a nexus
between any past persecution and his membership in a legally cognizable social group. The IJ
also concluded that any fear of harm based on past persecution was no longer well-founded due to
lack of evidence that the Honduran government was unwilling or unable to protect him and that
relocation would be futile. The IJ also denied Rodriguez-Figueroa’s CAT claim because he failed
to sufficiently corroborate his testimony and accordingly did not establish past persecution under
the less demanding asylum standard.
The BIA affirmed the IJ’s decision regarding the asylum and withholding of removal
claims based on Rodriguez-Figueroa’s failure to demonstrate a well-founded fear of persecution
based on a protected ground. Further, because the BIA concluded that Rodriguez-Figueroa did
not challenge the IJ’s findings regarding relocation or government acquiescence, the BIA deemed
2 them waived. Based on that resolution, the BIA did not reach either the IJ’s corroboration finding
or its finding that Rodriguez-Figueroa’s claimed social groups are not cognizable. The BIA also
affirmed the IJ’s dismissal of the CAT claim, concluding that Rodriguez-Figueroa waived any
challenge to that decision because he did not raise it in his brief to the BIA.
We review the IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Just., 426 F.3d 520, 522 (2d Cir. 2005). We review the agency’s factual findings for substantial
evidence and questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d
191, 195 (2d Cir. 2014).
I. Asylum and Withholding of Removal
We deny the petition as to asylum and withholding of removal because the agency did not
err in finding that Rodriguez-Figueroa failed to establish a nexus to a protected ground. An
applicant for asylum and withholding of removal must establish “a sufficiently strong nexus”
between suffered or feared harm and a protected ground of race, religion, nationality, membership
in a particular social group, or political opinion. Castro v. Holder, 597 F.3d 93, 100 (2d Cir.
2010); see also 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). That is, he must show that one of
these grounds was “at least one central reason for” the claimed persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i); see also Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (extending
the “one central reason” standard to withholding claims).
Substantial evidence supports the agency’s determination that there was no nexus between
Rodriguez-Figueroa’s claimed harm and a protected ground. Rodriguez-Figueroa asserted a
nexus to his membership in a particular social group and an imputed anti-gang political opinion,
but his testimony clearly showed that his abusers’ motivation was a desire to obtain information
about their nephew’s death, which was not tethered to any protected ground. See Yueqing Zhang
3 v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (requiring the applicant to show “that
the persecutor’s motive to persecute arises from” the applicant’s protected status); 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 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].”); Melgar de Torres v. Reno, 191 F.3d 307,
314 (2d Cir. 1999) (harm suffered as a result of “general crime conditions” is not persecution on
account of a protected ground). The agency’s nexus finding is dispositive of Rodriguez-
Figueroa’s claims for asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i)
(asylum), 1231(b)(3)(A) (withholding).
II. CAT Relief
We grant the petition and remand to the BIA for reconsideration of Rodriguez-Figueroa’s
CAT claim because the BIA erred in finding that he waived his CAT claim on appeal. The BIA
may deem an issue waived where “[t]he respondent has not meaningfully challenged the [IJ’s]
decision to deny” relief.
Free access — add to your briefcase to read the full text and ask questions with AI
19-4233 Rodriguez-Figueroa v. Garland BIA Baumgarten, IJ A215 673 382 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 22nd day of September, two thousand twenty-three.
Present: DENNY CHIN, WILLIAM J. NARDINI, ALISON J. NATHAN, Circuit Judges. _____________________________________
ELMER AUGUSTO RODRIGUEZ- FIGUEROA,
Petitioner,
v. 19-4233
MERRICK B. GARLAND, United States Attorney General,
Respondent. _____________________________________
For Petitioner: JAMES Y. PARK (Edmund Polubinski III, Daniel S. Magy, on the brief), Davis Polk & Wardwell LLP, New York, NY
For Respondent: JOANNA L. WATSON, Trial Attorney (Brian Boynton, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director, on the brief), 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 GRANTED in part and DENIED in part.
Petitioner Elmer Augusto Rodriguez-Figueroa, a native and citizen of Honduras, seeks
review of a December 5, 2019, decision of the BIA affirming a June 24, 2019, decision of an
Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). In re Elmer Augusto Rodriguez-Figueroa, No. A 215 673
382 (B.I.A. Dec. 5, 2019), aff’g No. A 215 673 382 (Immig. Ct. Batavia June 24, 2019). We
assume the parties’ familiarity with the case.
The IJ denied asylum and withholding of removal on several grounds. First, the IJ
concluded that although Rodriguez-Figueroa’s testimony was generally credible, he failed to
sufficiently corroborate his testimony regarding persecution. The IJ noted in the alternative that
even if his testimony was sufficiently corroborated, his testimony failed to demonstrate a nexus
between any past persecution and his membership in a legally cognizable social group. The IJ
also concluded that any fear of harm based on past persecution was no longer well-founded due to
lack of evidence that the Honduran government was unwilling or unable to protect him and that
relocation would be futile. The IJ also denied Rodriguez-Figueroa’s CAT claim because he failed
to sufficiently corroborate his testimony and accordingly did not establish past persecution under
the less demanding asylum standard.
The BIA affirmed the IJ’s decision regarding the asylum and withholding of removal
claims based on Rodriguez-Figueroa’s failure to demonstrate a well-founded fear of persecution
based on a protected ground. Further, because the BIA concluded that Rodriguez-Figueroa did
not challenge the IJ’s findings regarding relocation or government acquiescence, the BIA deemed
2 them waived. Based on that resolution, the BIA did not reach either the IJ’s corroboration finding
or its finding that Rodriguez-Figueroa’s claimed social groups are not cognizable. The BIA also
affirmed the IJ’s dismissal of the CAT claim, concluding that Rodriguez-Figueroa waived any
challenge to that decision because he did not raise it in his brief to the BIA.
We review the IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Just., 426 F.3d 520, 522 (2d Cir. 2005). We review the agency’s factual findings for substantial
evidence and questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d
191, 195 (2d Cir. 2014).
I. Asylum and Withholding of Removal
We deny the petition as to asylum and withholding of removal because the agency did not
err in finding that Rodriguez-Figueroa failed to establish a nexus to a protected ground. An
applicant for asylum and withholding of removal must establish “a sufficiently strong nexus”
between suffered or feared harm and a protected ground of race, religion, nationality, membership
in a particular social group, or political opinion. Castro v. Holder, 597 F.3d 93, 100 (2d Cir.
2010); see also 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). That is, he must show that one of
these grounds was “at least one central reason for” the claimed persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i); see also Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (extending
the “one central reason” standard to withholding claims).
Substantial evidence supports the agency’s determination that there was no nexus between
Rodriguez-Figueroa’s claimed harm and a protected ground. Rodriguez-Figueroa asserted a
nexus to his membership in a particular social group and an imputed anti-gang political opinion,
but his testimony clearly showed that his abusers’ motivation was a desire to obtain information
about their nephew’s death, which was not tethered to any protected ground. See Yueqing Zhang
3 v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (requiring the applicant to show “that
the persecutor’s motive to persecute arises from” the applicant’s protected status); 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 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].”); Melgar de Torres v. Reno, 191 F.3d 307,
314 (2d Cir. 1999) (harm suffered as a result of “general crime conditions” is not persecution on
account of a protected ground). The agency’s nexus finding is dispositive of Rodriguez-
Figueroa’s claims for asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i)
(asylum), 1231(b)(3)(A) (withholding).
II. CAT Relief
We grant the petition and remand to the BIA for reconsideration of Rodriguez-Figueroa’s
CAT claim because the BIA erred in finding that he waived his CAT claim on appeal. The BIA
may deem an issue waived where “[t]he respondent has not meaningfully challenged the [IJ’s]
decision to deny” relief. See Matter of Z–Z–O–, 26 I. & N. Dec. 586, 586 n.1 (B.I.A. 2015). The
IJ denied CAT relief based on her analysis in the asylum and withholding of removal context:
Rodriguez-Figueroa did not “corroborate his claim,” CAR 108, and failed to establish a sufficient
likelihood of persecution under asylum’s less demanding standard.
Although in his brief to the BIA Rodriguez-Figueroa did not expressly challenge the IJ’s
denial of his CAT claim or the IJ’s specific findings that he did not establish government
acquiescence or futility of relocation (which were independent grounds for dismissal of his CAT
claim), a fair reading of that brief is that Rodriguez-Figueroa generally challenged the IJ’s
conclusion that his testimony lacked corroboration. While this is a close call, we conclude that
4 Rodriguez-Figueroa’s general challenge to the IJ’s corroboration findings encompassed a
challenge to the IJ’s rejection of his CAT claim, including the relocation and government
acquiescence issues, which in this particular case had substantial factual overlap with his claims
of past persecution. Accordingly, we remand for the BIA to consider the merits of the CAT claim
in the first instance.
For the foregoing reasons, the petition for review is GRANTED in part and DENIED in
part and the case is REMANDED for further consideration of the CAT claim. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court