18-2763 Rodriguez-Reyes v. Rosen BIA Nelson, IJ A208 756 446 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 22nd day of January, two thousand twenty-one. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge 9 PIERRE N. LEVAL, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 ELIAS RODRIGUEZ-REYES, 15 Petitioner, 16 17 v. 18-2763 18 NAC 19 JEFFREY A. ROSEN, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent.* 22 _____________________________________ 23 24 FOR PETITIONER: Robert F. Graziano, Buffalo, NY. 25 26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 27 Attorney General; Daniel E. 28 Goldman, Senior Litigation 29 30 * Pursuant to Fed R. App. R. 43(c)(2), Jeffrey A. Rosen is automatically substituted for former Attorney General 31 William P. Barr. 32 1 Counsel, Mona Maria Yousif, 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Elias Rodriguez-Reyes, a native and citizen

12 of El Salvador, seeks review of an August 15, 2018 decision

13 of the BIA affirming a September 6, 2017 decision of an

14 Immigration Judge (“IJ”) denying asylum, withholding of

15 removal, and relief under the Convention Against Torture

16 (“CAT”). In re Elias Rodriguez-Reyes, No. A208 756 446

17 (B.I.A. Aug. 15, 2018), aff’g No. A208 756 446 (Immig. Ct.

18 N.Y.C. Sept. 6, 2017). We assume the parties’ familiarity

19 with the underlying facts and procedural history.

20 Under the circumstances of this case, we have reviewed

21 both the IJ’s and BIA’s decisions. See Wangchuck v. Dep’t

22 of Homeland Sec.,

(2d Cir. 2006). We review

23 the agency’s legal conclusions de novo and its factual

24 findings under the substantial evidence standard. Y.C. v.

25 Holder,

(2d Cir. 2013). Under that

2 1 standard, we uphold the agency’s factual findings so long as

2 “they are supported by reasonable, substantial[,] and

3 probative evidence in the record.” Yanqin Weng v. Holder,

4

(2d Cir. 2009) internal quotation marks

5 omitted); see also

(b)(4)(B) (stating that

6 “the administrative findings of fact are conclusive unless

7 any reasonable adjudicator would be compelled to conclude to

8 the contrary”).

9 First, Rodriguez-Reyes asserts that the IJ failed to

10 develop the record. This argument is unavailing. While “an

11 IJ has an obligation to establish and develop the record,”

12 Islam v. Gonzales,

(2d Cir. 2006), an IJ is

13 not responsible for making a counseled applicant’s claim, see

14 Ming Shi Xue v. BIA,

, 125 n.18 (2d Cir. 2006)

15 (“An IJ’s responsibility to identify, in advance of judgment,

16 perceived inconsistencies, is not tantamount to a duty to

17 assist the counseled asylum applicant in putting forward an

18 affirmative asylum claim in the first place.”). Rodriguez-

19 Reyes was represented by counsel who engaged in direct

20 examination and both government counsel and the IJ asked

21 additional questions. Rodriguez-Reyes does not identify any

22 additional lines of inquiry that the IJ should have pursued

3 1 or what relevant facts would have been revealed upon further

2 questioning.

3 Second, the agency did not err in rejecting Rodriguez-

4 Reyes’s argument that “business owners who refuse to pay

5 extortion to gang members,” Certified Admin. Record at 3, was

6 a cognizable social group. In order to demonstrate

7 eligibility for asylum and withholding of removal, “the

8 applicant must establish that race, religion, nationality,

9 membership in a particular social group, or political opinion

10 was or will be at least one central reason for persecuting

11 the applicant.”

(b)(1)(B)(i); see also

12 § 1231(b)(3)(A); Matter of C-T-L-,

, 347-

13 48 (B.I.A. 2010). To constitute a particular social group,

14 a group must be: “(1) composed of members who share a common

15 immutable characteristic, (2) defined with particularity, and

16 (3) socially distinct within the society in question.”

17 Paloka v. Holder,

(2d Cir. 2014)

18 (quoting Matter of M-E-V-G-,

(B.I.A.

19 2014)). A proposed social group fails the social distinction

20 test if the record evidence does not demonstrate that the

21 group would be perceived as a group by society or subject to

22 a greater threat from gang violence than the general

4 1 population. See Matter of S-E-G-,

, 585–

2 87 (B.I.A. 2008); see also Ucelo-Gomez v. Mukasey,

70, 73 (2d Cir. 2007) (“When the harm visited upon members of

4 a group is attributable to the incentives presented to

5 ordinary criminals rather than to persecution, the scales are

6 tipped away from considering those people a ‘particular

7 social group’ within the meaning of the INA.”).

8 The BIA reasonably concluded that Rodriguez-Reyes failed

9 to establish how his proposed social group, “business owners

10 who refuse to pay extortion to gang members,” satisfied the

11 particularity and social distinction requirements. This

12 group constitutes a potentially large and diffuse segment of

13 society. Cf. Ucelo-Gomez, 509 F.3d at 73–74 (deferring to

14 BIA’s conclusion that “affluent Guatemalans” are not

15 sufficiently particular or socially distinct, in part because

16 it is “impractical . . . to distinguish between petitioners

17 who are targeted” because of their group membership from those

18 who are targeted “merely because that’s where the money is”).

19 To the extent that Rodriguez-Reyes argues that business

20 owners are a distinct group because the gangs thought he was

21 a successful hard-working business man, his argument is

22 misplaced because the distinction must be measured by society

5 1 at large. See Matter of M-E-V-G-,

2 (explaining that “a group’s recognition . . . is determined

3 by the perception of the society in question, rather than by

4 the perception of the persecutor”); see also Paloka,

at 196 (reasoning that “a persecutor’s perception alone is

6 not enough to establish a cognizable social group”).

7 Additionally, the country conditions in the record reflect

8 widespread extortion and do not reflect that business owners

9 are perceived as a particularly vulnerable group.

10 Because Rodriguez-Reyes failed to establish that he faces

11 harm on account of his membership in a cognizable social

12 group, the agency did not err in denying asylum and

13 withholding of removal.

14 Finally, we find no error in the agency’s denial of CAT

15 relief. To receive protection under the CAT, an applicant

16 must “establish that it is more likely than not that he or

17 she would be tortured if removed to the proposed country of

18 removal.”

(c)(2). “Torture is defined as

19 any act by which severe pain or suffering, whether physical

20 or mental, is intentionally inflicted on a person . . . by or

21 at the instigation of or with the consent or acquiescence of

22 a public official or other person acting in an official

6 1 capacity.”

(a)(1); see also Pierre v.

2 Gonzales,

(2d Cir. 2007). The agency

3 must consider “all evidence relevant to the possibility of

4 future torture,” including: “[e]vidence of past torture,”

5 evidence regarding the possibility of internal relocation,

6 “[e]vidence of gross, flagrant, or mass violations of human

7 rights,” and “[o]ther relevant information regarding

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

9 § 1208.16(c)(3)(i)–(iv).

10 Contrary to Rodriguez-Reyes’s assertion, the IJ

11 acknowledged his testimony that a group of three people shot

12 at him. But he escaped that incident unharmed, he did not

13 allege that anyone continued to seek him out, and his family

14 remained unharmed in a nearby town. See 8 C.F.R.

15 § 1208.18(a)(2) (defining torture as “extreme form of cruel

16 and inhuman treatment” that “does not include lesser forms of

17 cruel, inhuman or degrading treatment”), (a)(4) (mental harm

18 may constitute torture if it is “prolonged” and results from

19 “severe physical pain and suffering” or “threat of imminent

20 death”). And while the State Department Report noted

21 widespread extortion and gang violence in El Salvador, and

22 specifically mentions that bus drivers are subject to

7 1 extortion, that report is insufficient to show that someone

2 in Rodriguez-Reyes’s particular circumstances is more likely

3 than not to be tortured. See Jian Xing Huang v. U.S. INS,

4

(2d Cir. 2005) (explaining that “in the

5 absence of solid support in the record,” an asylum applicant’s

6 fear is “speculative at best”); Mu Xiang Lin v. U.S. Dep’t of

F.3d 156, 160 (2d Cir. 2005) (requiring

8 “particularized evidence” beyond general country conditions

9 to support a CAT claim).

10 For the foregoing reasons, the petition for review is

11 DENIED. All pending motions and applications are DENIED and

12 stays VACATED.

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

8