20-844 Canales-Canales v. Garland BIA Poczter, IJ A209 288 324/323

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 7th day of December, two thousand twenty-one.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WELSEY, MICHAEL H. PARK, Circuit Judges. _________________________________________

RUTH ELIZABETH CANALES-CANALES, Y. D. T-C, Petitioners,

v. 20-844 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _________________________________________

FOR PETITIONERS: Rosmarie A. Barnett, Freeport, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Melissa Neiman-Kelting, Assistant Director; Allison Frayer, 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 Ruth Elizabeth Canales-Canales and her minor

son, natives and citizens of El Salvador, seek review of a

February 6, 2020 decision of the BIA denying their motion to

remand and affirming a March 26, 2018 decision of an

Immigration Judge (“IJ”) denying asylum and withholding of

removal under the Immigration and Nationality Act (“INA”),

and relief under the Convention Against Torture (“CAT”). In

re Ruth Elizabeth Canales-Canales, Y. D. T-C, Nos. A209 228

324/323 (B.I.A. Feb. 6, 2020), aff’g Nos. A209 228 324/323

(Immig. Ct. N.Y.C. Mar. 26, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

We consider only the BIA’s denial of the motion to remand

because Canales-Canales does not otherwise challenge the

agency’s decisions. See Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7 (2d Cir. 2005). Her sole argument is 2 that the BIA erred in declining to remand because her counsel

before the IJ was ineffective. We review the BIA’s denial

of a motion to remand for abuse of discretion. Li Yong Cao

v. U.S. Dep’t of Justice,

(2d Cir. 2005).

To prevail on a claim of ineffective assistance of

counsel, Canales-Canales had to show “that competent counsel

would have acted otherwise,” and “that [s]he was prejudiced

by [her] counsel’s performance.” Rabiu v. I.N.S.,

(2d Cir. 1994) (quoting Esposito v. I.N.S.,

(2d Cir. 1993)). To show “actual prejudice,” she

had to establish her prima facie eligibility for the requested

relief. Id. at 882.

In rejecting the ineffective assistance of counsel claim,

the BIA concluded that Canales-Canales failed to show

prejudice because her newly proposed social group—“Salvadoran

women seen by individual gang members as their partner”—was

not cognizable. And, even if cognizable, the BIA found that

she did not overcome the IJ’s finding that she failed to

demonstrate that the gang member she feared was motivated to

harm her on account of her membership in a group rather than

general criminal motives. The Government correctly argues

that Canales-Canales does not challenge the BIA’s specific

3 findings. Rather, she argues that she satisfied the

procedural requirements for raising an ineffective assistance

of counsel claim, but that was not an issue the BIA reached

and thus is not before us. See Lin Zhong v. U.S. Dep’t of

Justice,

(2d Cir. 2007). She also argues

that the BIA should have addressed whether counsel’s

performance was deficient before deciding prejudice, but the

BIA was not required to reach that issue given the dispositive

prejudice finding. See Rabiu, 41 F.3d at 882–83; see also

I.N.S. v. Bagamasbad,

(1976) (“As a general

rule courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results

they reach.”). Finally, although Canales-Canales contends

that the BIA failed to address prejudice properly, she simply

reiterates the bases for counsel’s allegedly deficient

performance—failure to prepare or submit evidence—rather than

challenges the BIA’s finding she was not prejudiced because

her proposed social group was not cognizable. Accordingly,

Canales-Canales has waived review of this dispositive

determination. See Yueqing Zhang,

n.1, 545

n.7.

4 Were we to reach the BIA’s prejudice determination, we

would find no error. To constitute a “particular social

group” within the meaning of the INA, 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.”

Paloka v. Holder,

(2d Cir. 2014) (quoting

Matter of M-E-V-G-,

(B.I.A. 2014)).

As the BIA determined, Canales-Canales’s group was not

defined with particularity given that the boundaries of the

group were narrowed only by the subjective phrase, “[w]omen

seen by individual gang members as their partner,” which does

not “provide a clear benchmark for determining who falls

within the group.” Matter of M-E-V-G-,

; see also Paloka,

(“Persecutory conduct

aimed at a social group cannot alone define the group, which

must exist independently of the persecution.” (internal

quotation marks omitted)); Ucelo-Gomez v. Mukasey,

(2d Cir. 2007) (concluding that wealth was too

subjective and variable a metric to define the boundaries of

a particular social group).

5 Further, Canales-Canales did not show how counsel could

have overcome the IJ’s finding that she failed to establish

the requisite nexus between a feared harm and a particular

social group. Canales-Canales testified that an individual

gang member threatened her because he wanted to be her

romantic partner, not because she was a member of a particular

social group. See Paloka, 762 F.3d at 196–97 (“After an

individual shows that she is a member of a cognizable social

group, she must demonstrate that the persecution was on

account of her membership in that particular social group. .

. . Whether the requisite nexus exists depends on the views

and motives of the persecutor.”); see also Ucelo-Gomez,

(“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.’”).

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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