19-1708 Pillacela-Cajamarca v. Garland BIA Straus, IJ A209 421 677 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 30th day of September, two thousand twenty-one.

PRESENT: JON O. NEWMAN, JOSÉ A. CABRANES, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

FRANCKLIN DANILO PILLACELA- CAJAMARCA, Petitioner,

v. 19-1708 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Robert C. Ross, Esq., West Haven, CT.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Kiley Kane, Senior Litigation Counsel; Todd J. Cochran, Trial 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 Francklin Danilo Pillacela-Cajamarca, a

native and citizen of Ecuador, seeks review of a May 13, 2019,

decision of the BIA affirming a December 18, 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 Francklin Danilo

Pillacela-Cajamarca, No. A 209 421 677 (B.I.A. May 13, 2019),

aff’g No. A 209 421 677 (Immig. Ct. Hartford Dec. 18, 2017).

We assume the parties’ familiarity with the underlying facts

and procedural history.

We have reviewed the IJ’s decision as supplemented by

the BIA. See Wala v. Mukasey,

(2d Cir.

2007). The standards of review are well established. See

(b)(4)(B) (“[T]he administrative findings of

fact are conclusive unless any reasonable adjudicator would 2 be compelled to conclude to the contrary.”); Y.C. v. Holder,

(2d Cir. 2013) (reviewing factual findings

for substantial evidence and questions of law and application

of law to fact de novo).

To obtain asylum or withholding of removal, Pillacela-

Cajamarca was required to establish that “race, religion,

nationality, membership in a particular social group, or

political opinion was or will be at least one central reason

for” the claimed persecution.

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

(asylum), 1231(b)(3)(A) (withholding); Matter of C-T-L-,

(B.I.A. 2010) (holding that the “one

central reason” standard also applies to withholding of

removal). Pillacela-Cajamarca argues that he established

that he would be persecuted on account of his membership in

the particular social group of “witnesses to a crime.” 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-,

(B.I.A. 2014);

see Paloka v. Holder,

, 195–97 (2d Cir. 2014).

3 “Particularity refers to whether the group is sufficiently

distinct that it would constitute a discrete class of

persons.” Matter of W-G-R-,

(B.I.A.

2014) (internal quotation marks omitted). “To be socially

distinct, a group . . . must be perceived as a group by

society.” Matter of M-E-V-G-, 26 I. & N. Dec. at 240.

Pillacela-Cajamarca’s proposed group failed to satisfy

the particularity and social distinction requirements. In

Gashi v. Holder,

(2d Cir. 2012), we

concluded that witnesses who cooperated with official war

crimes investigators were a particular social group. Unlike

Pillacela-Cajamarca’s proposed group, the group in Gashi was

highly specific, “finite,” and limited to cooperating

witnesses of war crimes committed by soldiers under the

command of a particular leader.

. Pillacela-

Cajamarca did not provide the “clear benchmark” that was

present in Gashi, as his group could include victims of

crimes, cooperating witnesses, informants, and individuals

who did not act after seeing a crime. Matter of M-E-V-G-,

26 I. & N. Dec. at 239. Furthermore, the record does not

support the conclusion that Ecuadorian society views crime

4 witnesses as discrete group; the fact that the police are

aware that Pillacela-Cajamarca witnesses a crime is

insufficient because the distinction must be recognized by

society at large. Id. at 242; see also Paloka,

. In sum, because the group could include a wide swath

of the population and given the lack of evidence of societal

perception of crime witnesses as a group, we find no error in

the agency’s determination that Pillacela-Cajamarca’s

proposed group was not cognizable.

We also find no error in the denial of CAT relief. An

applicant has the burden to “establish that it is more likely

than not that . . . he would be tortured if removed to the

proposed country of removal.”

(c)(2),

1208.17(a). The agency reasonably found it speculative that

the police officers who previously assaulted Pillacela-

Cajamarca likely would seek him out for torture given the

time that passed since his family last encountered the

officers in 2016 and the fact that his family has relocated

safely within Ecuador. See Savchuck v. Mukasey,

(2d Cir. 2008) (explaining that “alien will never

be able to show that he faces a more likely than not chance

5 of torture if one link in the chain cannot be shown to be

more likely than not to occur. It is the likelihood of all

necessary events coming together that must more likely than

not lead to torture, and a chain of events cannot be more

likely than its least likely link.” (internal quotation marks

omitted)); Jian Xing Huang v. INS,

(2d Cir.

2005) (“In the absence of solid support in the record . . .

[applicant’s] fear is speculative at best.”).

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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