Sagastume Pascual v. Barr ( 2019 )

17-4048
Sagastume Pascual v. Barr
BIA
Christensen, IJ
A206 675 627/628
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of December, two thousand nineteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 VILMA ARGENTINA SAGASTUME
14 PASCUAL, IRVING JOSUE MENDEZ
15 SAGASTUME,
16 Petitioners,
17
18 v. 17-4048
19 NAC
20 WILLIAM P. BARR, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONERS: Karin Anderson Ponzer, Esq.,
26 Neighbors Link Community Law
27 Practice, Ossining, NY.
1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
2 General; Jonathan A. Robbins,
3 Senior Litigation Counsel; Tracey
4 N. McDonald, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of
7 Justice, Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Vilma Argentina Sagastume Pascual and her minor son,
13 Irving Josue Mendez Sagastume, natives and citizens of
14 Guatemala, seek review of a November 29, 2017, decision of
15 the BIA affirming a March 30, 2017, decision of an Immigration
16 Judge (“IJ”) denying Pascual’s application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Vilma Argentina Sagastume
19 Pascual, Irving Josue Mendez Sagastume, Nos. A 206 675 627/628
20 (B.I.A. Nov. 29, 2017), aff’g Nos. A 206 675 627/628 (Immig.
21 Ct. N.Y. City Mar. 30, 2017). We assume the parties’
22 familiarity with the underlying facts and procedural history
23 in this case.
24 As an initial matter, our decision in Banegas Gomez v.
25 Barr, 922 F.3d 101, 110 (2d Cir. 2019), forecloses Pascual’s
26 claim that the immigration court lacked jurisdiction over her
2
1 removal proceedings because her notice to appear (“NTA”) did
2 not include the date and time of her hearing. “[A]n NTA that
3 omits information regarding the time and date of the initial
4 removal hearing is nevertheless adequate to vest jurisdiction
5 in the Immigration Court, at least so long as a notice of
6 hearing specifying this information is later sent to the
7 alien.” Id. at 111–12. Because Pascual was served with a
8 hearing notice specifying the time and date of her hearing
9 and she appeared at the hearing, she has no challenge to the
10 immigration court’s jurisdiction.
11 Turning to the merits, we have reviewed both the IJ’s
12 and the BIA’s decisions “for the sake of completeness.”
13 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
14 Cir. 2006). The applicable standards of review are well
15 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
16 Holder, 562 F.3d 510, 513 (2d Cir. 2009). We find no error
17 in the agency’s conclusion that Pascual failed to demonstrate
18 a nexus between the threats and extortion demands she received
19 and her membership in a particular social group of head of
20 household mothers of disabled children.
21 An asylum applicant has the burden to show that she has
22 suffered past persecution, or has a well-founded fear of
23 future persecution, “on account of race, religion,
3
1 nationality, membership in a particular social group, or
2 political opinion.” 8 U.S.C. § 1101(a)(42); see
3 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). “[A]sylum may be
4 granted where there is more than one motive for mistreatment,
5 as long as at least one central reason for the mistreatment
6 is on account of a protected ground.” Acharya v. Holder, 761
7 F.3d 289, 297 (2d Cir. 2014) (internal quotation marks
8 omitted). The “applicant need not show with absolute
9 certainty why the events occurred, but rather, only that the
10 harm was motivated, in part, by an actual or imputed protected
11 ground.” Uwais v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d
12 Cir. 2007). However, the applicant “must provide some
13 evidence of [a persecutor’s motives], direct or
14 circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478, 483
15 (1992); see also Manzur v. U.S. Dep’t of Homeland Sec., 494
16 F.3d 281, 291 (2d Cir. 2007). Assuming that Pascual’s
17 proposed social group is cognizable, the agency reasonably
18 determined that she failed to provide any direct or
19 circumstantial evidence to demonstrate that the extortionists
20 targeted her on account of her status as the head of household
21 mother of a disabled child rather than because of her money
22 and their general criminal aspirations. See Ucelo-Gomez v.
23 Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (applicant has burden
4
1 of demonstrating that persecutors “ha[ve] any motive other
2 than increasing their own wealth at the expense of” the
3 applicant). Pascual testified that the extortionists never
4 asked her for anything other than money, they never mentioned
5 her child, and they said “[she] had to pay because [she] had
6 money, [she] had a business.” Furthermore, Pascual’s country
7 conditions evidence reflects widespread extortion in
8 Guatemala and does not demonstrate that members of her
9 particular social group are at unique risk. See Melgar de
10 Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (“general
11 crime conditions” do not constitute persecution on account of
12 a protected ground). Therefore, she did not meet her burden
13 of demonstrating that she was persecuted on account of a
14 protected ground as required for asylum and withholding of
15 removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
16 She has not challenged the agency’s denial of CAT relief.
17 For the foregoing reasons, the petition for review is
18 DENIED. All pending motions and applications are DENIED and
19 stays VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
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