19-1743 Duran-Palacios v. Garland BIA Poczter, IJ A209 236 273

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 12th day of May, two thousand twenty-one.

PRESENT: JON O. NEWMAN, ROBERT D. SACK, RICHARD J. SULLIVAN, Circuit Judges. _________________________________________

MARTA ANGELA DURAN-PALACIOS, Petitioner,

v. 19-1743 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _________________________________________

FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY.

FOR RESPONDENT: Andrew N. O’Malley, Senior Litigation Counsel; Michele Y. F. Sarko, Attorney, Office of Immigration Litigation, 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 Marta Angela Duran-Palacios, a native and

citizen of El Salvador, seeks review of a June 3, 2019

decision of the BIA affirming a February 7, 2018 decision of

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

removal, and relief under the Convention Against Torture

(“CAT”). In re Marta Angela Duran-Palacios, No. A209 236 273

(B.I.A. June 3, 2019), aff’g No. A209 236 273 (Immig. Ct.

N.Y. City Feb. 7, 2018). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have reviewed both the IJ’s and the BIA’s opinions

“for the sake of completeness.” Wangchuck v. Dep’t of

Homeland Sec.,

(2d Cir. 2006). We review

the BIA and IJ’s factual findings under the substantial

evidence standard, and we review questions of law de novo.

See

(b)(4)(B); Paloka v. Holder,

(2d Cir. 2014).

An applicant for asylum and withholding of removal “must 2 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-,

(B.I.A. 2010)

(applying one central reason standard to withholding of

removal). The agency did not err in finding that Duran-

Palacios failed to demonstrate a nexus between the harm she

fears from gangs and her membership in the particular social

group of her family. Contrary to Duran-Palacios’s

contention, the Attorney General’s decision in Matter of L-

E-A-,

(A.G. 2019) is not material or

helpful to her case. In that decision, the Attorney General

concluded that “a nuclear family will not, without more,

constitute a ‘particular social group’ because most nuclear

families are not inherently socially distinct.”

.

But even assuming, as the IJ did here, that Duran-

Palacios’s family is a cognizable social group, the agency

did not err in concluding that she failed to demonstrate that

her membership in her family was a central reason for the

harm she allegedly fears. Tragically, gang members from one

3 gang murdered Duran-Palacios’s husband, while members of a

different gang threatened her daughter for recruitment

purposes and attempted to extort Duran-Palacios as they had

done with her neighbors. But Duran-Palacios provided no

evidence from which to infer that the latter group of gang

members – who are different from those who murdered her

husband – targeted her on account of her membership in her

immediate family. See

(b)(1)(B)(i),

1231(b)(3)(A); see also Yueqing Zhang v. Gonzales,

(2d Cir. 2005) (requiring applicant to show nexus

“through direct or circumstantial evidence” of the

persecutor’s motive); cf. Ucelo-Gomez v. Mukasey,

(2d Cir. 2007) (“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’ within the meaning of the [Immigration and

Nationality Act].”). Because Duran-Palacios failed to

establish a nexus between the harm she fears and her family

membership, the agency did not err in denying asylum and

withholding of removal. See

(b)(1)(B)(i),

1231(b)(3)(A).

4 Unlike asylum and withholding of removal, CAT relief does

not require that petitioner establish a nexus between the

threatened harm and membership in a particular group. See

(c)(2). But an applicant must still show

that she would “more likely than not” be tortured by or with

the acquiescence of the government. See

(c)(2), 1208.18(a)(1); Khouzam v. Ashcroft,

, 170–71 (2d Cir. 2004). The agency did not err in

finding that Duran-Palacios failed to establish a likelihood

of torture, let alone torture by or with the acquiescence of

the government, because she did not suffer past torture or

provide any evidence that she would likely suffer torture in

the future. See

(c)(2), (3); see also

Savchuck v. Mukasey,

(2d Cir. 2008) (“[A]n

alien will never be able to show that [s]he faces a more

likely than not chance of torture if one link in the chain

cannot be shown to be more likely than not to occur.”

(internal quotation marks omitted)); Huang v. U.S. INS,

(2d Cir. 2005) (“In the absence of solid support

in the record . . . [an applicant’s] fear is speculative at

best.”). Further, though Duran-Palacios asserted in her

asylum application and her brief on appeal that “the gangs in

5 El Salvador are the government” and “the police work for [the

gangs],” she did not substantiate these far-reaching claims

with evidence. Petitioner’s Br. 5. General conditions of

violence in El Salvador are insufficient to satisfy Duran-

Palacios’s burden for CAT relief. See Wang v. Ashcroft,

(2d Cir. 2003) (holding that beyond general

country conditions evidence demonstrating incidents of

torture in a country, an applicant for CAT relief must provide

some evidence “that someone in his particular alleged

circumstances is more likely than not to be tortured.”).

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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