18-3507 Macas-Moreno v. Garland BIA Straus, IJ A208 368 055 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 March, two thousand twenty-one.

PRESENT: BARRINGTON D. PARKER, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

ROBER VINICIO MACAS-MORENO, Petitioner,

v. 18-3507 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.* _____________________________________

FOR PETITIONER: Gregory Osakwe, Esq., Hartford, CT.

FOR RESPONDENT: Daniel E. Goldman, Senior Litigation Counsel, Rebecca Hoffberg Phillips, Trial Attorney, Office of Immigration Litigation,

* The Clerk of Court is respectfully directed to amend the caption as set forth above. 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 DENIED.

Petitioner Rober Vinicio Macas-Moreno, a native and

citizen of Ecuador, seeks review of a November 1, 2018

decision of the BIA affirming a September 8, 2017 decision of

an Immigration Judge (“IJ”) denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Rober Vinicio

Macas-Moreno, No. A208 368 055 (B.I.A. Nov. 1, 2018), aff’g

No. A208 368 055 (Immig. Ct. Hartford Sept. 8, 2017). We

assume the parties’ familiarity with the underlying facts and

procedural history.

In lieu of filing a brief, the Government moves for

summary denial and to stay briefing. Rather than determine

if the petition is frivolous, as required for summary

denial, Pillay v. INS,

, 16–17 (2d Cir. 1995), we

construe the Government’s motion as a brief and deny the

petition on the merits.

Under the circumstances of this case, we have reviewed

2 both the IJ’s and BIA’s decision “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). The standards of review are well

established. See Yanqin Weng v. Holder,

(2d Cir. 2009) (reviewing factual findings for substantial

evidence and questions of law de novo).

Asylum and Withholding of Removal

The agency did not err in finding that Macas-Moreno

failed to establish a nexus between his alleged harm and a

statutorily protected ground. In order to establish

eligibility for asylum and withholding of removal, an

“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.”

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

§ 1231(b)(3)(A); Matter of C-T-L-,

(BIA 2010). To constitute a particular social group, a group

must be “(1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and

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

Matter of M-E-V-G-,

(BIA 2014). “A

particular social group cannot be defined exclusively by the

3 claimed persecution, . . . it must be recognizable as a

discrete group by others in the society, and . . . it must

have well-defined boundaries.”

(internal

quotation marks and citation omitted).

Macas-Moreno did not assert either before the IJ or the

BIA that his harm occurred on account of any protected ground.

Before the IJ, he essentially conceded that there was no

protected ground and stated that he would focus on his CAT

claim. Before the BIA, he alleged that he was a member of a

particular social group, but did not identify what the group

was or explain how it met the requirements for a particular

social group. He now asserts that he is a member of the

particular social group in Ecuador of potential witnesses

against police officers. He has not explained, however, how

such a group is cognizable, i.e., that Ecuadorian society

perceives witnesses as a group, nor did he exhaust such

arguments before the agency. Accordingly, we decline to

address this issue further. It is dispositive of his claims

for asylum and withholding of removal. See Lin Zhong v. U.S.

Dep’t of Justice,

, 119–22 (2d Cir. 2007)

(describing issue exhaustion as “mandatory”); see also

Prabhudial v. Holder,

(2d Cir. 2015)

4 (holding that “where the agency properly applies its own

waiver rule and refuses to consider the merits of an argument

that was not raised before the IJ, we will not permit an end

run around those discretionary agency procedures by

addressing the argument for the first time in a petition for

judicial review” (internal quotation marks and brackets

omitted)).

CAT

To be eligible for CAT relief, an applicant must show

“that it is more likely than not” that he will be tortured in

his country of removal.

(c)(2). Unlike

asylum and withholding of removal, CAT relief does not require

a nexus to a protected ground. See

Torture is defined for purposes of CAT as “any act by

which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person . . . by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”

(a)(1). The agency must consider “all

evidence relevant to the possibility of future torture,”

including: “[e]vidence of past torture,” evidence regarding

the possibility of internal relocation, “[e]vidence of gross,

5 flagrant, or mass violations of human rights,” and “[o]ther

relevant information regarding conditions in the country of

removal.”

(c)(3)(i)–(iv).

The agency reasonably determined that Macas-Moreno did

not establish that if removed to Ecuador he would more likely

than not suffer future harm amounting to torture. His stated

fear was based on two past assaults, in 2015. Although he

was severely beaten in the first incident, he was only pepper

sprayed and kicked in the second, in Cuenca, and the police

officers did not follow through on any threats against him or

his family thereafter. Macas-Moreno did not provide any

evidence that the police officers remain interested in him or

any evidence that they approached his family in the two years

since the incident in Cuenca. Cf. Jian Xing Huang v. U.S.

INS,

(2d Cir. 2005) (“In the absence of

solid support in the record,” an asylum applicant’s fear is

“speculative at best.”). Accordingly, the agency did not err

in finding that he failed to show that he would “more likely

than not” suffer harm constituting torture if removed to

Ecuador. See

(c)(2) (placing burden on

applicant to show torture is “more likely than not” to occur),

1208.18(a)(2), (4) (defining torture as “extreme form of

6 cruel and inhuman treatment” that “does not include lesser

forms of cruel, inhuman or degrading treatment” and

requiring, in relevant part, “severe physical pain and

suffering” or “threat of imminent death”); Kyaw Zwar Tun v.

INS,

(2d Cir. 2006) (“[T]orture requires

proof of something more severe than the kind of treatment

that would suffice to prove persecution”).

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

7