Leiva-Argueta v. Garland
Leiva-Argueta v. Garland
Opinion
19-3423 Leiva-Argueta v. Garland BIA Nelson, IJ A205 955 828/829 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 25th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RICHARD C. WESLEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 HENSSER OSEAS LEIVA-ARGUETA, 14 EDWIN ADRIAN ARGUETA 15 Petitioners, 16 17 v. 19-3423 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONERS: Daniel Spensieri, Esq., White 25 Plains, NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Anthony P. 1 Nicastro, Assistant Director; 2 Joanna L. Watson., Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, 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 GRANTED in part and DENIED in part.
10 Petitioners, Hensser Oseas Leiva Argueta and his brother
11 Edwin Adrian Argueta, natives and citizens of Guatemala, seek
12 review of a September 25, 2019, decision of the BIA affirming
13 a February 28, 2018, decision of an Immigration Judge (“IJ”)
14 denying their applications for asylum, withholding of
15 removal, and protection under the Convention Against Torture
16 (“CAT”). In re Hensser Oseas Leiva-Argueta, Edwin Adrian
17 Argueta, Nos. A205 955 828/829 (B.I.A. Sept. 25, 2019), aff’g
18 Nos. A205 955 828/829 (Immig. Ct. N.Y. City Feb. 28, 2018).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 We have reviewed both the IJ’s and the BIA’s decisions.
22 See Wangchuck v. Dep’t of Homeland Sec.,
448 F.3d 524, 528
23 (2d Cir. 2006). The applicable standards of review are well
24 established. See
8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 2 1
762 F.3d 191, 195(2d Cir. 2014) (reviewing factual findings
2 for substantial evidence and questions of law, including
3 whether a proposed group is cognizable, de novo); Gjolaj v.
4 Bureau of Citizenship & Immigration Servs.,
468 F.3d 140, 143
5 (2d Cir. 2006) (reviewing nexus determination for substantial
6 evidence).
7 We deny the petition as to asylum and withholding of
8 removal. To qualify for asylum and withholding of removal,
9 Petitioners had the burden to establish that their feared
10 persecutors would target them on account of “race, religion,
11 nationality, membership in a particular social group, or
12 political opinion.”
8 U.S.C. §§ 1158(b)(1)(B)(i), (ii)
13 1231(b)(3)(A), (C). We find no error in the agency’s
14 conclusion that Petitioners did not identify a cognizable
15 social group or show that the individuals they feared were
16 targeting them for political reasons.
17 A particular social group is one “(1) composed of members
18 who share a common immutable characteristic, (2) defined with
19 particularity, and (3) socially distinct within the society
20 in question.” Paloka,
762 F.3d at 196(internal quotation
21 marks omitted). Petitioners alleged they were targeted
3 1 because of their membership in the particular social group of
2 young male witnesses to murders in small Guatemalan towns
3 because they witnessed the murders of drug traffickers whose
4 family sought retribution from the witnesses. The agency
5 reasonably concluded that the group was not socially distinct
6 within Guatemalan society because Petitioners presented no
7 evidence that the society in general was aware of their status
8 as witnesses or that Guatemalan society perceived witnesses
9 to murders or other crimes as a distinct group. Id.
10 (explaining that “what matters is whether society as a whole
11 views a group as socially distinct, not the persecutor’s
12 perception”). Further, “[w]hen the harm visited upon members
13 of a group is attributable to the incentives presented to
14 ordinary criminals rather than to persecution, the scales are
15 tipped away from considering those people a particular social
16 group.” Ucelo-Gomez v. Mukasey,
509 F.3d 70, 73(2d Cir.
17 2007) (internal quotation marks omitted).
18 As to imputed political opinion, Petitioners asserted
19 that the drug traffickers’ family threatened them because
20 they held an anti-crime political opinion. They presented
21 no evidence that the family imputed such an opinion to them
4 1 or that there was any political dimension or context to the
2 events. Instead, they testified that the reason for the
3 threats was to keep them silent about the crimes they
4 witnessed. As the agency concluded, random violence and
5 general crime are not grounds for asylum and withholding of
6 removal. See Melgar de Torres v. Reno,
191 F.3d 307, 313–14
7 (2d Cir. 1999).
8 We remand to the agency for further consideration of the
9 CAT claim. To obtain CAT relief, Petitioners had to show
10 that they would “more likely than not” be tortured by the
11 drug traffickers’ family and that the Guatemalan government
12 would acquiesce or turn a blind eye to that torture. 8 C.F.R.
13 §§ 1208.16(c)(2), 1208.18(a)(1). The record reflects that
14 Petitioners received death threats and reported the Rodriguez
15 family to the police, the police agreed to investigate, but
16 did not contact them again, and other witnesses to the same
17 murders were killed. Petitioners presented a State
18 Department Report outlining widespread corruption in the
19 police and testified that the authorities would not protect
20 them because the Rodriguez family financed the campaign of
21 the village mayor.
5 1 We find the agency’s analysis of the CAT claim
2 insufficient for judicial review. In denying CAT relief, the
3 agency repeated the legal standard, concluding that
4 Petitioners had not shown that they would likely be tortured
5 by or with the acquiescence of the government, but did not
6 make any factual findings to support that determination or
7 identify where the claim was deficient. “[A] failure to
8 adduce evidence can itself constitute the ‘substantial
9 evidence’ necessary to support the agency’s challenged
10 decision,” Jian Hui Shao v. Mukasey,
546 F.3d 138, 157–58 (2d
11 Cir. 2008), but we require “some indication that the IJ
12 considered material evidence supporting a petitioner’s claim”
13 and “a certain minimum level of analysis from the IJ and BIA,”
14 Poradisova v. Gonzales,
420 F.3d 70, 77(2d Cir. 2005).
15 For the foregoing reasons, the petition for review is
16 GRANTED in part and remanded to the agency for further
17 proceedings on Petitioners’ CAT claim and DENIED in remaining
18 part as to asylum and withholding of removal.
19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court
6
Reference
- Status
- Unpublished