22-6258 A.O.M-C. v. Garland BIA Douchy, IJ A208 542 788

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 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 4th day of September, two thousand twenty-four.

PRESENT: GERARD E. LYNCH, STEVEN J. MENASHI, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

A.O.M-C, Petitioner,

v. 22-6258 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.* _____________________________________ * We grant the unopposed motion to abbreviate petitioner’s name pursuant to Second Circuit Local Rule 27.1(j). The Clerk of Court is respectfully directed to amend the caption accordingly. FOR PETITIONER: Matthew L. Guadagno, Law Office of Matthew L. Guadagno, New York, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Anna E. Juarez, Senior Litigation Counsel; Lindsay Marshall, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

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, A.O.M-C., a native and citizen of Guatemala, seeks review of an

April 28, 2022, decision of the BIA affirming a May 13, 2019, decision of an

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

removal under the Immigration and Nationality Act (“INA”). 1 In re A.O.M-C.,

No. A208 542 788 (B.I.A. Apr. 28, 2022), aff’g No. A208 542 788 (Immig. Ct. N.Y.

City May 13, 2019). 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 Yan

1 A.O.M-C. has abandoned his claim under the Convention Against Torture by not addressing it in his brief. See Debique v. Garland,

(2d Cir. 2023) (“We consider abandoned any claims not adequately presented in an appellant’s brief, and an appellant’s failure to make legal or factual arguments constitutes abandonment.” (quotation marks omitted)). 2 Chen v. Gonzales,

(2d Cir. 2005). We review factual findings for

substantial evidence and questions of law de novo. See Yanqin Weng v. Holder,

(2d Cir. 2009). “[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary.”

(b)(4)(B).

To establish eligibility for asylum and withholding of removal, A.O.M-C.

had to show that his “race, religion, nationality, membership in a particular social

group, or political opinion was . . . at least one central reason” for the harm that he

suffered or feared.

(b)(1)(B)(i); see Quituizaca v. Garland,

, 109–14 (2d Cir. 2022). A.O.M-C. alleged that a Guatemalan gang robbed,

extorted, and attempted to recruit him based on his membership in the particular

social groups of his family and Guatemalan youths without parental supervision,

and based on his actual or imputed political opinion. The agency reasonably

found that he failed to demonstrate an actual or imputed political opinion or that

his purported political opinions or social groups were “one central reason” why

the gang targeted him for robbery, extortion, or recruitment. See Paloka v. Holder,

, 196–97 (2d Cir. 2014) (“Whether the requisite nexus exists depends

on the views and motives of the persecutor.” (quotation marks omitted)). To the

3 contrary, the record amply supports the IJ’s conclusion that the gang members

were motivated solely by their ordinary economic interests in A.O.M-C’s money

and labor, and “harm motivated purely by wealth is not persecution” under the

INA. Ucelo-Gomez v. Mukasey,

(2d Cir. 2007) (rejecting claim based

on political opinion where putative persecutors had no “‘motive other than

increasing their own wealth at the expense of’ the petitioners” (citation to record

omitted)); see also Melgar de Torres v. Reno,

(2d Cir. 1999) (“general

crime conditions” are not a protected ground for asylum and withholding of

removal).

A.O.M-C. concedes that he did not testify that the gangs were motivated by

a protected ground, but argues that the agency ignored a letter from his father and

country conditions evidence that demonstrate he was persecuted for his

membership in a particular social group. However, “we presume that an IJ has

taken into account all of the evidence before him, unless the record compellingly

suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Just.,

, 336 n.17 (2d

Cir. 2006). The letter explained that four members of A.O.M-C.’s extended family

were killed for refusing to pay gangs and that “gang members threatened [A.O.M-

C.] with death when he refused to join their gang and sell drugs for them.” App’x

4 386. The IJ did not expressly reference the letter, but the record reflects that the IJ

did not overlook it; rather, the IJ considered the facts contained in the letter in its

order. Further, this letter supports the conclusion that A.O.M-C. and his relatives

were crime victims, without any indication that the gangs targeted them out of

animosity towards the family. “[T]he fact that a persecutor has threatened an

applicant and members of his [or her] family does not necessarily mean that the

threats were motivated by family ties.” Garcia-Aranda v. Garland,

(2d Cir. 2022) (quotation marks and citation omitted). A.O.M-C. testified that he

did not know why his family members were killed, nor did he present any other

evidence suggesting that the gang harbored animus against his family.

Moreover, he testified that he was unaware of any gang victimization experienced

by his adult siblings who remained in Guatemala.

Likewise, the country conditions evidence fails to establish that the agency

erred in concluding that A.O.M-C. was not targeted because he was a Guatemalan

youth without parental supervision. The proffered articles note that such youths

are susceptible to recruitment, but are silent as to whether the gangs target those

youths because of their lack of parental guidance. Rather, the country conditions

evidence reflects that gang extortion and violence is common in Guatemala and

5 impacts a large cross-section of the population. See Quintanilla-Mejia v. Garland,

(2d Cir. 2021) (“while certain segments of a population may be more

susceptible to one type of [gang] criminal activity than another, where the

residents all generally suffer from the gang’s criminal efforts to sustain its

enterprise, the significant societal problems that result may not support relief in

the form of asylum or withholding of removal.” (quotation marks omitted)).

A.O.M-C. also argues that the agency overlooked country conditions

evidence that supports a conclusion that Guatemalan gangs perceive a refusal to

pay or join them as opposition to gangs, which in turn constitutes a political

opinion. However, refusals to join or pay a gang, are not, without more, an

expressed or imputed political opinion under the INA, nor does such activity

become political “simply by virtue of the gang’s reaction.” Zelaya-Moreno v.

Wilkinson,

, 200–01 (2d Cir. 2021). The record does not demonstrate

that petitioner’s “disagreement with the gangs is . . . different than any other

person who disapproves of criminal elements,” and the country conditions

evidence is therefore insufficient to establish that A.O.M-C.’s resistance “took on

a political dimension by transcending mere self-protection.”

(quotation

marks omitted).

6 Because A.O.M-C.’s evidence shows only that he was a victim of criminal

activity based on ordinary criminal motives—and not that the gang singled him

out because of his political opinion or any other protected characteristic—he did

not meet his burden for asylum or withholding of removal. See

(b)(1)(B)(i), 1231(b)(3)(C); Paloka,

; Melgar de Torres,

. As that conclusion is dispositive, we do not address whether his proposed

social groups were cognizable or the risk of future harm. See INS 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.”).

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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