20-1657 Yunga-Mera v. Garland BIA Vomacka, IJ A206 451 010 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.
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 22nd day of March, two thousand twenty-two. 5 6 PRESENT: 7 DENNY CHIN, 8 JOSEPH F. BIANCO, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _________________________________________ 12 13 FERNANDO YUNGA-MERA, 14 Petitioner, 15 16 v. 20-1657 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _________________________________________ 22 23 FOR PETITIONER: Michael Borja, Esq., Borja Law 24 Firm, P.C., Jackson Heights, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Melissa Neiman-Kelting, Assistant 29 Director; Jessica A. Dawgert, 30 Senior Litigation Counsel, Office 31 of Immigration Litigation, United 1 States Department of Justice, 2 Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Fernando Yunga-Mera, a native and citizen of
9 Ecuador, seeks review of a May 19, 2020 decision of the BIA
10 affirming a July 5, 2018 decision of an Immigration Judge
11 (“IJ”), which denied asylum, withholding of removal, and
12 relief under the Convention Against Torture (“CAT”). In re
13 Fernando Yunga-Mera, No. A206 451 010 (B.I.A. May 19, 2020),
14 aff’g No. A206 451 010 (Immigr. Ct. N.Y.C. July 5, 2018). We
15 assume the parties’ familiarity with the underlying facts and
16 procedural history.
17 We have considered both the IJ’s and the BIA’s decisions.
18 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
19 Cir. 2006). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,
21 762 F.3d 191, 195 (2d Cir. 2014) (“We review factual findings
22 under the substantial evidence standard, treating them as
23 conclusive unless any reasonable adjudicator would be
24 compelled to conclude to the contrary. Questions of law, as 2 1 well as the application of legal principles to undisputed
2 facts, are reviewed de novo.” (internal quotation marks and
3 citation omitted)).
4 As an initial matter, we do not consider the agency’s
5 denial of asylum because Yunga-Mera abandons any challenge to
6 the denial of that form of relief. See Yueqing Zhang v.
7 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
8 (stating that petitioner abandons issues and claims not
9 raised in his brief). As discussed below, Yunga-Mera has not
10 established error in the agency’s denial of withholding of
11 removal and CAT relief.
12 To establish eligibility for withholding of removal,
13 Yunga-Mera was required to establish past persecution or a
14 likelihood of future persecution “because of [his] race,
15 religion, nationality, membership in a particular social
16 group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
17 8 C.F.R. § 1208.16(b). To demonstrate that persecution (past
18 or prospective) bears a nexus to an applicant’s political
19 opinion, the applicant must show, “through direct or
20 circumstantial evidence, that the persecutor’s motive to
21 persecute arises from” his or her perception of the
22 applicant’s opinion, rather than merely from his or her own
3 1 opinion. See Yueqing Zhang, 426 F.3d at 545. Although
2 retaliation for an applicant’s opposition to endemic
3 government corruption may constitute persecution on account
4 of a political opinion, a persecutor’s suppression of an
5 applicant’s “challenge to isolated, aberrational acts of
6 greed or malfeasance” does not. Id. at 546-48. The agency
7 did not err in concluding that Yunga-Mera failed to establish
8 that members of the controlling political party in Ecuador
9 harmed him or would target him in the future on account of
10 his political opinion. Yunga-Mera did not testify to any
11 facts from which one could infer that the party members sought
12 kickbacks and attacked him for opposing corruption, rather
13 than for their own greed. See id. at 548; see also INS v.
14 Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that the
15 applicant “must provide some evidence of [the persecutors’
16 motives], direct or circumstantial” (emphasis in the
17 original)).
18 Yunga-Mera also did not establish that he was targeted
19 as a member of a cognizable social group. To constitute a
20 particular social group, a group must be “(1) composed of
21 members who share a common immutable characteristic, (2)
22 defined with particularity, and (3) socially distinct within
4 1 the society in question.” Paloka, 762 F.3d at 196 (quoting
2 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014));
3 see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir. 2007).
4 A common immutable characteristic is one that members of the
5 group “either cannot change, or should not be required to
6 change because it is fundamental to their individual
7 identities or consciences.” Ucelo-Gomez, 509 F.3d at 72–73
8 (quotation marks omitted). Yunga-Mera did not define a
9 social group before the IJ, but, nevertheless, the IJ
10 considered whether a social group of government contractors
11 was cognizable and reasonably concluded that it was not, given
12 that employment as a government contractor is not an immutable
13 characteristic. See Matter of M-E-V-G-, 26 I. & N. Dec. at
14 237; see also Ucelo-Gomez, 509 F.3d at 72–73.
15 Yunga-Mera did not challenge the IJ’s ruling on this
16 point on appeal to the BIA, but rather defined his social
17 group for the first time as “those who reject political
18 recruitment.” Petitioner’s Brief at 4. As an appellate
19 body, the BIA was not required to consider this social group
20 claim, and it did not do so. See Prabhudial v. Holder, 780
21 F.3d 553, 555 (2d Cir. 2015) (“[T]he BIA may refuse to
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20-1657 Yunga-Mera v. Garland BIA Vomacka, IJ A206 451 010 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.
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 22nd day of March, two thousand twenty-two. 5 6 PRESENT: 7 DENNY CHIN, 8 JOSEPH F. BIANCO, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _________________________________________ 12 13 FERNANDO YUNGA-MERA, 14 Petitioner, 15 16 v. 20-1657 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _________________________________________ 22 23 FOR PETITIONER: Michael Borja, Esq., Borja Law 24 Firm, P.C., Jackson Heights, NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; 28 Melissa Neiman-Kelting, Assistant 29 Director; Jessica A. Dawgert, 30 Senior Litigation Counsel, Office 31 of Immigration Litigation, United 1 States Department of Justice, 2 Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Fernando Yunga-Mera, a native and citizen of
9 Ecuador, seeks review of a May 19, 2020 decision of the BIA
10 affirming a July 5, 2018 decision of an Immigration Judge
11 (“IJ”), which denied asylum, withholding of removal, and
12 relief under the Convention Against Torture (“CAT”). In re
13 Fernando Yunga-Mera, No. A206 451 010 (B.I.A. May 19, 2020),
14 aff’g No. A206 451 010 (Immigr. Ct. N.Y.C. July 5, 2018). We
15 assume the parties’ familiarity with the underlying facts and
16 procedural history.
17 We have considered both the IJ’s and the BIA’s decisions.
18 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
19 Cir. 2006). The applicable standards of review are well
20 established. See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,
21 762 F.3d 191, 195 (2d Cir. 2014) (“We review factual findings
22 under the substantial evidence standard, treating them as
23 conclusive unless any reasonable adjudicator would be
24 compelled to conclude to the contrary. Questions of law, as 2 1 well as the application of legal principles to undisputed
2 facts, are reviewed de novo.” (internal quotation marks and
3 citation omitted)).
4 As an initial matter, we do not consider the agency’s
5 denial of asylum because Yunga-Mera abandons any challenge to
6 the denial of that form of relief. See Yueqing Zhang v.
7 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
8 (stating that petitioner abandons issues and claims not
9 raised in his brief). As discussed below, Yunga-Mera has not
10 established error in the agency’s denial of withholding of
11 removal and CAT relief.
12 To establish eligibility for withholding of removal,
13 Yunga-Mera was required to establish past persecution or a
14 likelihood of future persecution “because of [his] race,
15 religion, nationality, membership in a particular social
16 group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);
17 8 C.F.R. § 1208.16(b). To demonstrate that persecution (past
18 or prospective) bears a nexus to an applicant’s political
19 opinion, the applicant must show, “through direct or
20 circumstantial evidence, that the persecutor’s motive to
21 persecute arises from” his or her perception of the
22 applicant’s opinion, rather than merely from his or her own
3 1 opinion. See Yueqing Zhang, 426 F.3d at 545. Although
2 retaliation for an applicant’s opposition to endemic
3 government corruption may constitute persecution on account
4 of a political opinion, a persecutor’s suppression of an
5 applicant’s “challenge to isolated, aberrational acts of
6 greed or malfeasance” does not. Id. at 546-48. The agency
7 did not err in concluding that Yunga-Mera failed to establish
8 that members of the controlling political party in Ecuador
9 harmed him or would target him in the future on account of
10 his political opinion. Yunga-Mera did not testify to any
11 facts from which one could infer that the party members sought
12 kickbacks and attacked him for opposing corruption, rather
13 than for their own greed. See id. at 548; see also INS v.
14 Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that the
15 applicant “must provide some evidence of [the persecutors’
16 motives], direct or circumstantial” (emphasis in the
17 original)).
18 Yunga-Mera also did not establish that he was targeted
19 as a member of a cognizable social group. To constitute a
20 particular social group, a group must be “(1) composed of
21 members who share a common immutable characteristic, (2)
22 defined with particularity, and (3) socially distinct within
4 1 the society in question.” Paloka, 762 F.3d at 196 (quoting
2 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014));
3 see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir. 2007).
4 A common immutable characteristic is one that members of the
5 group “either cannot change, or should not be required to
6 change because it is fundamental to their individual
7 identities or consciences.” Ucelo-Gomez, 509 F.3d at 72–73
8 (quotation marks omitted). Yunga-Mera did not define a
9 social group before the IJ, but, nevertheless, the IJ
10 considered whether a social group of government contractors
11 was cognizable and reasonably concluded that it was not, given
12 that employment as a government contractor is not an immutable
13 characteristic. See Matter of M-E-V-G-, 26 I. & N. Dec. at
14 237; see also Ucelo-Gomez, 509 F.3d at 72–73.
15 Yunga-Mera did not challenge the IJ’s ruling on this
16 point on appeal to the BIA, but rather defined his social
17 group for the first time as “those who reject political
18 recruitment.” Petitioner’s Brief at 4. As an appellate
19 body, the BIA was not required to consider this social group
20 claim, and it did not do so. See Prabhudial v. Holder, 780
21 F.3d 553, 555 (2d Cir. 2015) (“[T]he BIA may refuse to
22 consider an issue that could have been, but was not, raised
5 1 before an IJ.”). Therefore, our review is “limited to
2 whether the BIA erred” in refusing to address that new claim.
3 Id. at 555-56. The BIA decisions Yunga-Mera cites for his
4 newly defined social group were decided well before his
5 appearance before the IJ. See Petitioner’s Brief at 6-7.
6 Accordingly, the BIA did not err in declining to address his
7 social group claim. See Prabhudial, 780 F.3d at 556. In any
8 event, Yunga-Mera did not show his membership in such a group
9 because he did not testify that he was targeted for
10 recruitment. See 8 U.S.C. § 1231(b)(3)(A).
11 Unlike withholding of removal, CAT relief does not
12 require a nexus to protected grounds. See 8 C.F.R.
13 §§ 1208.16(c), 1208.17. To be eligible for CAT relief, an
14 applicant is required to show that he would more likely than
15 not be tortured by or with the acquiescence of government
16 officials. See 8 C.F.R. §§ 1208.16(c), 1208.18(a); Khouzam
17 v. Ashcroft, 361 F.3d 161, 168, 170–71 (2d Cir. 2004).
18 The agency reasonably found that Yunga-Mera failed to
19 show a likelihood of torture because he did not testify that
20 the party members who harmed him would target him in the
21 future unless he decided to work for them again, or allege
22 that he would be required to work pursuant to a government
6 1 contract, or that anyone else was interested in harming him.
2 See 8 C.F.R. § 1208.16(c) (“The burden of proof is on the
3 applicant . . . to establish that it is more likely than not
4 that he or she would be tortured if removed to the proposed
5 country of removal.”); Jian Xing Huang v. U.S. INS, 421 F.3d
6 125, 129 (2d Cir. 2005) (“In the absence of solid support in
7 the record . . . [an applicant’s] fear is speculative at
8 best.”).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED and
11 stays VACATED.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court