18-3013 Mejia-Ruiz v. Wilkinson BIA Straus, IJ A 206 222 294 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 9th day of March, two thousand twenty-one.

PRESENT: JON O. NEWMAN, ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

FERNANDO MEJIA-RUIZ, AKA SERGIO AMAYA-ACOSTA, AKA SERGIO AMAYA KOTE, AKA SERGIO AMAYA-FOTI, Petitioner,

v. 18-3013 NAC ROBERT M. WILKINSON, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________

FOR PETITIONER: Hamdan Qudah, Patterson, NJ.

FOR RESPONDENT: Song Park, Corey L. Farrell, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Robert M. Wilkinson is automatically substituted for former Attorney General William P. Barr. 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.

Petitioner Fernando Mejia-Ruiz, a native and citizen of Mexico, seeks review of a

September 14, 2018, decision of the BIA affirming an August 15, 2017, decision of an Immigration

Judge (“IJ”) denying Mejia-Ruiz’s application for asylum and withholding of removal. 2 In re

Fernando Mejia-Ruiz, No. A 206 222 294 (B.I.A. Sept. 14, 2018), aff’g No. A 206 222 294

(Immig. Ct. Hartford Aug. 15, 2017). We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

We have considered the IJ’s decision as supplemented and modified by the BIA. See Yan

Chen v. Gonzales,

(2d Cir. 2005). Accordingly, the only issues before us are

(1) the BIA’s conclusion that Mejia-Ruiz failed to establish a nexus to a protected ground as

required for both asylum and withholding of removal and (2) the BIA’s denial of the motion to

remand. 3

I. Nexus to a Protected Ground

The applicable standards of review are well established. See

(b)(4)(B);

Paloka v. Holder,

(2d Cir. 2014) (reviewing factual findings for substantial

2 Mejia-Ruiz claims his true name is Sergio Amaya Kote; this summary order uses the name used by the agency. The notice to appear alleged that he was a native and citizen of Guatemala, but the IJ accepted his claim that he was a native and citizen of Mexico. 3 Mejia-Ruiz did not challenge the denial of his CAT claim before the BIA and does not raise the claim in this Court. Accordingly, the claim is both unexhausted and waived. See Karaj v. Gonzales,

(2d Cir. 2006) (finding no jurisdiction over CAT claim not raised before BIA); Yueqing Zhang v. Gonzales,

, 541 n.1 (2d Cir. 2005) (finding CAT claim abandoned where it was not argued in the brief). Similarly, he does not challenge the BIA’s denial of humanitarian asylum. 2 evidence and questions of law de novo).

To demonstrate eligibility for asylum and withholding of removal, “the 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 persecuting the applicant.” 4

(b)(1)(B)(i), 1231(b)(3)(A); see also Matter of C-T-L-,

(B.I.A.

2010). Asylum or withholding “may be granted where there is more than one motive for

mistreatment, as long as at least one central reason for the mistreatment is on account of a protected

ground.” Acharya v. Holder,

(2d Cir. 2014). An applicant “must provide some

evidence of [their persecutor’s motives], direct or circumstantial.” INS v. Elias-Zacarias,

(1992); see also Manzur v. U.S. Dep’t of Homeland Sec.,

(2d Cir.

2007). A nexus determination is fact-finding reviewed for substantial evidence. See Gjolaj v.

Bureau of Citizenship & Immigration Servs.,

(2d Cir. 2006).

Mejia-Ruiz seeks asylum and withholding of removal based on his membership in the

particular social group of “Americanized” persons. Even assuming that this group is cognizable,

the agency reasonably determined that Mejia-Ruiz failed to demonstrate that he has a well-founded

fear of future persecution on account of his membership in this group. Mejia-Ruiz testified that he

feared returning to Mexico since a gang was extorting his two children because they knew Mejia-

Ruiz was in the United States and sent home money. Mejia-Ruiz said the extortion threats began

in 2012 and became stronger in 2014 after his son (who was briefly in the United States) returned

to Mexico. Mejia-Ruiz said that the reason for the extortion was that the gang members believed

that he made a lot of money in the United States. Mejia-Ruiz also acknowledged that the gang

4 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations. 3 extorted from “everyone in the neighborhood.” Certified Administrative Record 231. In support

of his claim, Mejia-Ruiz submitted a declaration that his son made to the Mexican police that

indicates that someone called his son demanding money, and that the caller stated that they knew

Mejia-Ruiz was in the United States and “has made money.” Id. at 42. Mejia-Ruiz also submitted

two statements that his brother gave to Mexican police, claiming that some men wanted to harm

Mejia-Ruiz.

The BIA did not err because the record lacks any direct or circumstantial evidence that

Mejia-Ruiz would be targeted on account of being “Americanized.” Mejia-Ruiz testified that he

would be targeted for having money and that the gang targeted everyone for money. See Elias-

Zacarias,

(requiring “some evidence” of a persecutor’s motive) (emphasis in

original). We do not discount Mejia-Ruiz’s real fear that he could be victimized in Mexico, but

without evidence of specific targeting on a protected ground, the unfortunate criminal activity that

Mejia-Ruiz fears is not a legally cognizable basis for asylum or withholding of removal: “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.” Ucelo-Gomez v. Mukasey,

(2d Cir. 2007) (finding

reasonable the BIA’s determination that affluent Guatemalans was not a particular social group);

see also Melgar de Torres v. Reno,

(2d Cir. 1999) (“general crime conditions”

are not a protected ground for asylum and withholding of removal). This nexus determination is

dispositive of both asylum and withholding of removal.

(b)(1)(B)(i), 1231(b)(3)(A).

II. Motion to Remand

We review the BIA’s denial of a motion to remand under the abuse of discretion standard.

4 See Li Yong Cao v. U.S. Dep’t of Justice,

(2d Cir. 2005). “An abuse of discretion

may be found in those circumstances where the [BIA’s] decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or contains only

summary or conclusory statements; that is to say, where the [BIA] has acted in an arbitrary or

capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice,

, 93 (2d Cir. 2001).

Here, the BIA did not abuse its discretion in declining to remand for the IJ to consider the

new police reports, because they would not have altered the result in the case. See Li Yong Cao,

; see also Matter of Coelho,

(B.I.A. 1992) (“[T]he Board

ordinarily will not consider a discretionary grant of a motion to remand unless the moving party

meets a ‘heavy burden’ and presents evidence of such a nature that the Board is satisfied that if

proceedings before the immigration judge were reopened, with all the attendant delays, the new

evidence offered would likely change the result in the case.”). Mejia-Ruiz submitted two police

reports that indicate that some individuals have threatened him. The reports do not reflect who

made the threats, the nature of the threats, or the motivation for the threats. The reports, then, do

not alter the agency’s dispositive conclusion that Mejia-Ruiz failed to show he would be harmed

on account of his “Americanized” status or any cognizable protected ground.

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

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