Lopez Duran v. Rosen ( 2021 )

18-3586
Lopez Duran v. Rosen BIA
Conroy, IJ
A088 442 404
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 4th day of January, two thousand twenty-
5 one.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 AURELIO LOPEZ DURAN,
15 Petitioner,
16
17 v. 18-3586
18 NAC
19 JEFFREY A. ROSEN, ACTING UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gisela Chavez-Garcia, Law Offices
25 of Gisela Chavez-Garcia, New York,
26 NY.
27
28 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
29 Assistant Attorney General;
1 Anthony P. Nicastro, Assistant
2 Director; Tracey N. McDonald,
3 Trial Attorney, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Aurelio Lopez Duran, a native and citizen of
12 Mexico, seeks review of an October 31, 2018, decision of the
13 BIA affirming an October 16, 2017, decision of an Immigration
14 Judge (“IJ”) denying asylum, withholding of removal, and
15 relief under the Convention Against Torture (“CAT”). In re
16 Aurelio Lopez Duran, No. A 088 442 404 (B.I.A. Oct. 31, 2018),
17 aff’g No. A 088 442 404 (Immig. Ct. N.Y. City Oct. 16, 2017).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed both the IJ’s and the BIA’s decisions
21 “for the sake of completeness.” Wangchuck v. Dep’t of
22 Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The
23 applicable standards of review are well established. See
24 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195
25 (2d Cir. 2014) (reviewing factual findings for substantial
2
1 evidence and questions of law, including whether a proposed
2 group is cognizable, de novo); Gjolaj v. Bureau of Citizenship
3 & Immigration Servs., 468 F.3d 140, 143 (2d Cir. 2006)
4 (reviewing nexus determination for substantial evidence).
5 Lopez Duran does not challenge the denial of asylum and we
6 find no error in the agency’s denial of withholding of removal
7 and CAT relief.
8 An applicant for withholding of removal must establish
9 past persecution or that he will more likely than not be
10 persecuted in the future and that such persecution was, or
11 will be, on account of “race, religion, nationality,
12 membership in a particular social group, and political
13 opinion.” 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.
14 § 1208.16(b)(1), (2). A cognizable particular social group
15 is one that has “a common immutable characteristic,” is
16 “defined with particularity,” and is “socially distinct
17 within the society in question.” Paloka, 762 F.3d at 196
18 (quoting In re M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)).
19 Lopez Duran argues that he will be targeted by criminals
20 in Mexico on account of his membership in a group of people
21 returning from the United States who are perceived as wealthy
22 and as a member of a group of witnesses to crime. The agency
3
1 did not err in denying relief on either basis. The agency
2 correctly determined that Lopez Duran’s proposed group of
3 individuals returning from the United States and perceived as
4 wealthy was not a cognizable particular social group because
5 wealth is too subjective. See Ucelo-Gomez v. Mukasey, 509
6 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited upon
7 members of a group is attributable to the incentives presented
8 to ordinary criminals rather than to persecution, the scales
9 are tipped away from considering those people a ‘particular
10 social group’ within the meaning of the [Immigration and
11 Nationality Act].”). Although Lopez Duran argues that the
12 agency relied on Ucelo-Gomez without conducting an
13 independent analysis of how such individuals are perceived in
14 Mexico, Lopez Duran does not identify any evidence to support
15 his claim that individuals returning to Mexico are perceived
16 as a group within Mexican society. See Paloka, 762 F.3d at
17 196 (“[I]n determining particularity and social distinction
18 what matters is whether society as a whole views a group as
19 socially distinct”). He does not cite any country conditions
20 evidence in his brief and the country conditions evidence in
21 the record touches on a wide variety of topics, ranging from
22 crime to natural disasters, but does not address this proposed
4
1 group. See Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d
2 Cir. 1999) (holding that “general crime conditions” are not
3 a protected ground).
4 Lopez Duran also fails to establish his membership in
5 his other proposed social group of witnesses to crime. His
6 reliance on Gashi v. Holder, 702 F.3d 130 (2d Cir. 2012), to
7 argue that that witnesses are a cognizable social group, is
8 misplaced. Gashi’s name was published on a list of potential
9 witnesses against an accused war criminal, other villagers
10 knew he had spoken to authorities, and other potential
11 witnesses had been harassed. Gashi, 702 F.3d at 132. There
12 is no similar evidence here: Lopez Duran did not report the
13 1997 robbery to the police or testify in any proceeding and
14 there is no evidence that anyone in Mexico is aware that he
15 could be a witness to that or any other crime.
16 Finally, the agency reasonably concluded that Lopez Duran
17 did not meet his burden of proof for CAT relief. An applicant
18 is required to show that he would “more likely than not” be
19 tortured by or with the acquiescence of government officials.
20 See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Khouzam v.
21 Ashcroft, 361 F.3d 161, 170–71 (2d Cir. 2004). “A private
22 actor’s behavior can constitute torture under the CAT without
5
1 a government’s specific intent to inflict it if a government
2 official is aware of the persecutor’s conduct and intent and
3 acquiesces in violation of the official’s duty to intervene.”
4 Pierre v. Gonzales, 502 F.3d 109, 118 (2d Cir. 2007).
5 The agency reasonably found that Lopez Duran did not
6 establish the he would more likely than not be tortured in
7 Mexico. The IJ acknowledged Lopez Duran’s evidence of the
8 high crime level in Mexico but reasonably concluded that such
9 general evidence did not show a likelihood of torture because
10 he was not more likely than anyone else to become a crime
11 victim. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d
12 Cir. 2003) (upholding denial of CAT claim where there was
13 evidence of torture in China, but not that “someone in
14 [petitioner’s] particular alleged circumstances [wa]s more
15 likely than not to be tortured.” (emphasis in original).).
16 For the foregoing reasons, the petition for review is
17 DENIED. All pending motions and applications are DENIED and
18 stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
6