19-2136 Puma-Niola v. Garland BIA Conroy, IJ A205 921 455 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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 11th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 MICHAEL H. PARK, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 ANTHONY ALBERTO PUMA-NIOLA 14 Petitioner, 15 16 v. 19-2136 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael Borja, Esq., Borja Law 24 Firm, P.C., Jackson Heights, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Shelley R. Goad, 28 Assistant Director; Jennifer P. 1 Levings, Senior Litigation 2 Counsel, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED in part and DISMISSED in part.

10 Petitioner Anthony Alberto Puma-Niola, a native and

11 citizen of Ecuador, seeks review of a June 18, 2019 decision

12 of the BIA affirming a January 26, 2018 decision of an

13 Immigration Judge (“IJ”) denying Puma-Niola’s application for

14 asylum, withholding of removal, and protection under the

15 Convention Against Torture (“CAT”). In re Anthony Alberto

16 Puma-Niola, No. A 205 921 455 (B.I.A. Dec. June 18, 2019),

17 aff’g No. A 205 921 455 (Immig. Ct. N.Y.C. Jan. 26, 2018). We

18 assume the parties’ familiarity with the underlying facts and

19 procedural history.

20 We review both the BIA’s and IJ’s decisions. Wangchuck

21 v. Dep’t of Homeland Sec.,

(2d Cir. 2006).

22 The applicable standards of review are well established. See

23

(b)(4)(B); Yanqin Weng v. Holder,

510, 513 (2d Cir. 2009) (reviewing factual findings for 2 1 substantial evidence and questions of law and application of

2 law to facts de novo).

3 We deny the petition as to asylum and withholding of

4 removal. An applicant must establish past persecution or a

5 fear of future persecution and that “race, religion,

6 nationality, membership in a particular social group, or

7 political opinion was or will be at least one central reason

8 for persecuting the applicant.”

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

9 see also

§ 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N.

10 Dec. 341, 348 (B.I.A. 2010) (“one central reason” standard

11 applies to applications for withholding of removal). Puma-

12 Niola’s only exhausted particular social group is “young men

13 who can be recruited into gangs.” See Lin Zhong v. U.S.

14 Dep’t of Justice,

, 107 n.1, 122 (2d Cir. 2007)

15 (limiting review to “those issues that formed the basis for

16 [the BIA’s] decision”); Matter of A-B-,

,

17 344 (A.G. 2018) (requiring “exact delineation” of particular

18 social group before IJ). To constitute a particular social

19 group, a group must be “(1) composed of members who share a

20 common immutable characteristic, (2) defined with

21 particularity, and (3) socially distinct within the society

3 1 in question.” Matter of M-E-V-G-,

, 237

2 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey,

,

3 72–74 (2d Cir. 2007).

4 Puma-Niola’s group is not cognizable, and substantial

5 evidence supports the agency’s conclusion that he did not

6 show a nexus between the harm feared and a protected ground.

7 Puma-Niola did not provide country conditions evidence as

8 required to show that Ecuadorian society perceives his

9 proposed group as distinct. See Matter of M-E-V-G-, 26 I. &

10 N. Dec. at 242 (“[A] group’s recognition . . . is determined

11 by the perception of the society in question, rather than by

12 the perception of the persecutor.”); Paloka v. Holder, 762

, 196 (2d Cir. 2014) (“[A] persecutor’s perception

14 alone is not enough to establish a cognizable social group.”).

15 Absent some additional factor, a gang’s actions in recruiting

16 members to increase its influence is not persecution: “When

17 the harm visited upon members of a group is attributable to

18 the incentives presented to ordinary criminals rather than to

19 persecution, the scales are tipped away from considering

20 those people a ‘particular social group.’” Ucelo-Gomez, 509

21 F.3d at 73.

4 1 Relatedly, an applicant must have “some evidence” of his

2 persecutors’ motive, “direct or circumstantial.” INS v.

3 Elias-Zacarias,

(1992). Puma-Niola did not

4 allege any motivation other than increasing influence and

5 recruiting people to sell drugs. Accordingly, he presented

6 no evidence that the gang targeted him because he possessed

7 a “belief or characteristic” that the gang sought to overcome.

8 Kyaw Zwar Tun v. INS,

(2d Cir. 2006)

9 (identifying elements of well-founded fear); see also Melgar

10 de Torres v. Reno,

, 313–14 (2d Cir. 1999)

11 (“general crime conditions” and “random violence” cannot

12 support a claim to asylum).

13 We dismiss the petition as to Puma-Niola’s CAT claim

14 because he did not challenge the IJ’s denial of this relief

15 before the BIA. See Karaj v. Gonzales,

(2d

16 Cir. 2006).

17 For the foregoing reasons, the petition for review is

18 DENIED in part as to asylum and withholding of removal and

19 DISMISSED in remaining part as to relief under the CAT.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court

5