17-735 (L) Lemus v. Barr BIA Wiesel, IJ A208 542 815/816/817

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 13th day of August, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 PETER W. HALL, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 MILVIA MARINA LEMUS, CHRISTHIAN 14 ESTUARDO RAGUEX-LEMUS, MARELYN 15 NATHALIA RAGUEX-LEMUS, 16 Petitioners, 17 18 v. 17-735 (L), 19 18-12 (Con) 20 NAC 21 WILLIAM P. BARR, UNITED STATES 22 ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONERS: Theodore N. Cox, New York, NY. 27 28 FOR RESPONDENT: Joseph H. Hunt, Assistant 29 Attorney General; Derek C. Julius, 30 Assistant Director; Margaret 31 Kuehne Taylor, Senior Litigation 1 Counsel, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of these petitions for review of

7 Board of Immigration Appeals (“BIA”) decisions, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petitions for review

9 are DENIED.

10 Petitioners Milvia Marina Lemus (“Lemus”), Christhian

11 Estuardo Raguex-Lemus, and Marelyn Nathalia Raguex-Lemus,

12 natives and citizens of Guatemala, seek review of both a

13 February 23, 2017 decision of the BIA reversing an August 10,

14 2016 decision of an Immigration Judge (“IJ”) granting relief

15 under the Convention Against Torture (“CAT”), In re Milvia

16 Marina Lemus et al., Nos. A 208 542 815/816/817 (B.I.A. Feb.

17 23, 2017), reversing Nos. A 208 542 815/816/817 (Immig. Ct.

18 N.Y. City Aug. 10, 2016), and a December 7, 2017 decision of

19 the BIA denying a motion to reopen based on ineffective

20 assistance of counsel, In re Milvia Marina Lemus et al., Nos.

21 A 208 542 815/816/817 (B.I.A. Dec. 7, 2017). We assume the

22 parties’ familiarity with the underlying facts and procedural

23 history in this case.

2 1 Denial of CAT Relief

2 As to the lead petition, we have reviewed the BIA’s

3 decision denying CAT relief. See Yan Chen v. Gonzales, 417

4

, 271 (2d Cir. 2005). We review factual findings for

5 substantial evidence and legal issues de novo. See 8 U.S.C.

6 § 1252(b)(4)(B); Yanqin Weng v. Holder,

, 513

7 (2nd Cir. 2009).

8 An applicant for CAT relief must show that “it is more

9 likely than not that . . . she would be tortured.” 8 C.F.R.

10 § 1208.16(c)(2); see also Khouzam v. Ashcroft,

,

11 168 (2d Cir. 2004). To constitute torture under the CAT, the

12 harm must be “inflicted by or at the instigation of or with

13 the consent or acquiescence of a public official or other

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

15 § 1208.18(a)(1). “Acquiescence of a public official requires

16 that the public official, prior to the activity constituting

17 torture, have awareness of such activity and thereafter

18 breach his or her legal responsibility to intervene to prevent

19 such activity.” Id. § 1208.18(a)(7); Khouzam,

171 (acquiescence occurs where “government officials know of

21 or remain willfully blind to an act and thereafter breach 3 1 their legal responsibility to prevent it.”). The agency

2 considers “all evidence relevant to the possibility of future

3 torture . . . , including, but not limited to . . . [e]vidence

4 of past torture,” the possibility of relocation within the

5 country, “[e]vidence of gross, flagrant or mass violations of

6 human rights . . . and . . . relevant information regarding

7 conditions in the country of removal.” 8 C.F.R.

8 § 1208.16(c)(3).

9 The BIA did not err in concluding that Lemus failed to

10 show that Guatemalan authorities are likely to acquiesce to

11 her torture by gang members. See

(c)(2),

12 1208.18(a)(1). As noted above, “acquiescence” requires that

13 government officials either have knowledge of or remain

14 willfully blind to a torturous act and subsequently breach

15 their duty to act. Khouzam,

; see also 8

(a)(7). Neither actual knowledge nor willful

17 blindness was established here. Lemus testified that she was

18 threatened on three occasions by Mara 18 gang members, but

19 she conceded that she reported only the third incident to

20 police. Even then, she did not alert the police to the prior

21 incidents, and she does not claim to have identified the 4 1 alleged perpetrators or reported that they were Mara 18 gang

2 members. Without that information, that the police told

3 Lemus that there was nothing they could do fails to establish

4 acquiescence. See Garcia-Milian v. Holder,

,

5 1034 (9th Cir. 2014) (“Evidence that the police were aware of

6 a particular crime, but failed to bring the perpetrators to

7 justice, is not in itself sufficient to establish

8 acquiescence in the crime.”).

9 Lemus argues that the Guatemalan police were aware of

10 the fire that destroyed her home, which supports her claim of

11 acquiescence. But Lemus admitted she was uncooperative with

12 police when they tried to investigate the fire, and she failed

13 to tell them about her suspicion of gang involvement. Given

14 these admissions, Lemus did not demonstrate that the

15 Guatemalan police knew of or were willfully blind to threats

16 from Mara 18. Cf. Khouzam,

.

17 Denial of Reopening

18 We review the BIA’s denial of reopening for abuse of

19 discretion. Ali v. Gonzales,

(2d Cir.

20 2006). A “motion to reopen shall state the new facts that

21 will be proven at a hearing to be held if the motion is 5 1 granted, and shall be supported by affidavits or other

2 evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). To obtain

3 reopening based on ineffective assistance of counsel, a

4 movant must comply with certain procedural requirements, and

5 must show both that counsel’s actions were unreasonable and

6 that those actions caused prejudice. See Debeatham v.

7 Holder,

, 484–85 (2d Cir. 2010); Rashid v.

8 Mukasey,

(2d Cir. 2008).

9 Lemus asserts that her former counsel’s ineffective

10 representation resulted in the IJ’s denial of her asylum and

11 withholding of removal claims. She argues that if counsel

12 had defined her proposed social groups, submitted country

13 conditions evidence, and presented witness testimony, she

14 could have prevailed on those claims. For the reasons

15 explained below, Lemus’s failure to show prejudice is

16 dispositive. See Debeatham, 602 F.3d at 485–86.

17 In her motion to reopen, Lemus proposed three distinct

18 social groups: (1) vulnerable mothers who had been raped;

19 (2) her family; and (3) female business owners with a family

20 who have refused to comply with extortion demands. But even

21 if Lemus’s former counsel had identified those social groups, 6 1 Lemus’s testimony—which the IJ found credible—did not

2 establish that she was targeted based on her membership in

3 any of them. Rather, as the IJ found, her testimony showed

4 that she was targeted for extortion and thus was a crime

5 victim, not someone who was persecuted on account of a

6 protected ground. See Melgar de Torres v. Reno,

(2d Cir. 1999) (explaining that “general crime

8 conditions” do not lend support to an asylum claim because

9 they are not an “enumerated ground.”); see also Ucelo-Gomez

10 v. Mukasey,

(2d Cir. 2007) (“When the harm

11 visited upon members of a group is attributable to the

12 incentives presented to ordinary criminals rather than to

13 persecution, the scales are tipped away from considering

14 those people a ‘particular social group’ within the meaning

15 of the INA.”). Lemus’s arguments that the associate who

16 represented her at the hearing was “unprepared” and that

17 former counsel failed to appeal the IJ’s denial of asylum and

18 withholding of removal also fail because her testimony did

19 not support a claim that she was targeted on account of the

20 proposed groups or that the groups were cognizable.

21 Because Lemus’s failure to demonstrate prejudice is 7 1 dispositive as to her motion to reopen, we do not reach her

2 remaining arguments. See INS v. Bagamasbad,

, 25

3 (1976) (“As a general rule courts and agencies are not

4 required to make findings on issues the decision of which is

5 unnecessary to the results they reach.”).

6 For the foregoing reasons, the petitions for review are

7 DENIED. As we have completed our review, any stays of removal

8 that the Court previously granted in these petitions are

9 VACATED, and any pending motion for stays of removal in these

10 petitions is DISMISSED as moot. Any pending request for oral

11 argument in this petition is DENIED in accordance with Federal

12 Rule of Appellate Procedure 34(a)(2), and Second Circuit

13 Local Rule 34.1(b).

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court 17

8