23-7095 Arias-Arevalo v. Bondi BIA Loprest, IJ A215 769 064

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 November, two thousand twenty-five.

PRESENT: GUIDO CALABRESI, REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

MARITZA YASMIN ARIAS-AREVALO, Petitioner,

v. 23-7095 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Bruno Bembi, Hempstead, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Lisa M. Arnold, Victor M. Lawrence, Senior Litigation Counsel, 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, Maritza Yasmin Arias-Arevalo, a native and citizen of El

Salvador, seeks review of an August 31, 2023 decision of the BIA affirming an

October 1, 2019 decision of an Immigration Judge (“IJ”) denying her application

for asylum and withholding of removal. 1 In re Arias-Arevalo, No. A215 769 064

(B.I.A. Aug. 31, 2023), aff’g No. A215 769 064 (Immig. Ct. N.Y. City Oct. 1, 2019).

We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal, to which we refer only as necessary to explain our decision

to deny the petition.

“[W]e review the IJ’s decision as modified by the BIA and do not address

the findings the BIA declined to reach or found abandoned.” Castellanos-Ventura

1 Arias-Arevalo has not challenged the BIA’s determination that she waived her claim under the Convention Against Torture.

2 v. Garland,

, 253 (2d Cir. 2024). We review factual findings for

substantial evidence and “questions of law, including the application of law to

facts, de novo.” Ojo v. Garland,

, 159 (2d Cir. 2022). “[T]he

administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.”

(b)(4)(B).

I. Agency Jurisdiction

Arias-Arevalo argues that because her notice to appear (“NTA”) did not

include the date and time of her initial hearing, the “IJ and BIA lacked jurisdiction

in this matter.” Pet. at 22; see

(a)(1)(G)(i). She is mistaken.

Although an incomplete NTA does not stop the accrual of presence or residence

as required to establish eligibility for cancellation of removal, the omission of the

hearing date and time does not strip the immigration court of jurisdiction where,

as here, the petitioner was subsequently sent a hearing notice. See Cupete v.

Garland,

, 57 (2d Cir. 2022). The requirement that an NTA contain the

time and place of a hearing is a “non-jurisdictional, claim-processing rule that is

subject to waiver and forfeiture.” See Penaranda Arevalo v. Bondi,

,

336–37 (2d Cir. 2025). Because Arias-Arevalo conceded removability and failed

to timely raise the NTA’s purported deficiencies before the IJ or the BIA, she

3 waived that argument.

II. Asylum and Witholding of Removal

“The burden of proof is on the applicant [for asylum and withholding of

removal] 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

persecuting the applicant.”

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

, 109–14 (2d Cir. 2022) (holding that the “one central reason” standard

applies to both asylum and withholding of removal). An applicant must prove

“a sufficiently strong nexus” between the suffered harm and a protected ground.

Castro v. Holder,

(2d Cir. 2010). “Whether the requisite nexus

exists depends on the views and motives of the persecutor.” Paloka v. Holder,

, 196–97 (2d Cir. 2014) (internal quotation marks omitted). Where an

applicant asserts a claim based on membership in a particular social group, the

applicant has the burden to establish both that the group is cognizable and that

the requisite nexus exists.

Arias-Arevalo argues that gang members targeted her because of her

religion, her political opinions, her gender, her membership in multiple particular

social groups, and her familial relationship with her son. These claims either lack

4 merit or are unexhausted.

A. Religious Beliefs

Neither the BIA nor the IJ erred in concluding that Arias-Arevalo adduced

insufficient evidence of a nexus between her religious beliefs and persecution by

gang members. Although Arias-Arevalo was an active member of her church,

and gang members sometimes harassed her in or near the church, she stated that

she understood the attacks to be motivated by gang members’ desire for her to

reopen her food stand and let them eat for free, and to punish her for requesting

payment from them in the past. The fact that the gang members could locate her

near the church was not evidence of animosity towards her because of her religion.

See INS v. Elias-Zacarias,

(1992) (requiring applicant to “provide

some evidence . . . direct or circumstantial” of the “persecutors’ motives . . . to

obtain judicial reversal of the BIA’s determination”).

B. Political Opinion

Similarly, there is no error in the agency’s conclusion that Arias-Arevalo did

not establish a nexus to her political opinions, whether professed or imputed,

which consisted of opposition to gangs and her “feminist beliefs.” Pet. 14.

“[O]pposition to criminal elements such as gangs, even when such opposition

5 incurs the enmity of these elements, does not thereby become political opposition

simply by virtue of the gang’s reaction.” Zelaya-Moreno v. Wilkinson,

,

201 (2d Cir. 2021) (emphasis in original). In any event, Arias-Arevalo cites no

evidence that gang members attributed her demands for payment to any anti-gang

or feminist political opinions. Substantial evidence therefore supported the BIA’s

and IJ’s determinations that Arias-Arevalo had not shown that gang members

“persecute[d] [her] because of [any] political opinion, rather than because of [her]

refusal” to allow the gang members to eat and drink for free in her store. I.N.S.

v. Elias-Zacarias,

; Jian Hui Shao v. Mukasey,

, 157–58 (2d

Cir. 2008) (“[W]hen a petitioner bears the burden of proof, [her] failure to adduce

evidence can itself constitute the ‘substantial evidence’ necessary to support the

agency’s challenged decision.”).

We do not consider Arias-Arevalo’s claims of persecution for being a

woman and persecution because of her familial relationship to her son because she

did not exhaust these groups before the IJ and the BIA. See Punin v. Garland,

, 124 (2d Cir. 2024) (“[W]hen an argument made to this Court cannot be

closely matched up with a specific argument made to the BIA, it has not been

properly exhausted and we cannot hear it.”); Ud Din v. Garland,

, 419–

6 20 & n.2 (2d Cir. 2023) (issue exhaustion is mandatory when raised by the

Government).

We have considered Arias-Arevalo’s other claims and find them meritless.

In sum, Arias-Arevalo’s failure to establish that gang members targeted her for a

reason other than general criminal goals is dispositive of her asylum and

withholding of removal claims. See Quituizaca v. Garland, 52 F.4th at 114–15;

Paloka v. Holder, 762 F.3d at 196–97.

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

7