Guerra-Galdamez v. Wilkinson ( 2021 )

17-3998-ag
Guerra-Galdamez v. Wilkinson
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 February, two thousand twenty-one.
PRESENT: JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges,
VICTOR MARRERO,
District Judge. *
ALEX MEDARDO GUERRA-GALDAMEZ,
Petitioner, 17-3998-ag
v.
ROBERT M. WILKINSON, ACTING UNITED STATES
ATTORNEY GENERAL, †
Respondent.
FOR PETITIONER: JOSHUA BARDAVID, New York, NY.
*Judge Victor Marrero, of the United States District Court for the Southern District of New York, sitting
by designation.
† The Clerk of Court is directed to amend the caption as set forth above.
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FOR RESPONDENT: JULIA J. TYLER (Joseph H. Hunt, Assistant
Attorney General; Shelley R. Goad,
Assistant Director; on the brief), 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 Alex Medardo Guerra-Galdamez, a native and citizen of El Salvador, seeks review
of a November 16, 2017, decision of the BIA affirming a March 6, 2017, decision of an Immigration
Judge (“IJ”) denying his application for asylum and withholding of removal. In re Alex Medardo
Guerra-Galdamez, No. A 206 842 991 (B.I.A. Nov. 16, 2017), aff’g No. A 206 842 991 (Immig. Ct.
N.Y. City Mar. 6, 2017). We assume the parties’ familiarity with the underlying facts and procedural
history.
We review the IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014). Whether someone has
been persecuted on account of his membership in a particular social group is a factual finding we
review under the substantial evidence standard. See Paloka, 762 F.3d at 195, 199 n.4.
In order to demonstrate eligibility for asylum and withholding of removal, “the applicant
must 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.” 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(A). Although there may be “more than one motive for mistreatment,
. . . at least one central reason for the mistreatment [must be] on account of a protected ground.”
Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (internal quotation marks and citations omitted).
The “harm or suffering . . . [must] be inflicted upon an individual in order to punish him for
possessing a belief or characteristic a persecutor sought to overcome.” Matter of Acosta, 19 I. & N.
Dec. 211, 222 (B.I.A. 1985). The harm or mistreatment may not be a result of general violence of
criminal activity. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited
upon members of a group is attributable to the incentives presented to ordinary criminals rather
than to persecution, the scales are tipped away from considering those people a ‘particular social
group’ within the meaning of the INA.”); Matter of Diaz, 10 I. & N. Dec. 199, 203 (B.I.A. 1963)
(“The statute is designed to benefit a particular class of persons, not any national of a country which
is undergoing a period of upheaval accompanied by violence.”).
On appeal, Guerra-Galdamez takes issue with the agency’s treatment of his claim to asylum
based on his membership in a particular social group, which he defines as “Salvadoran males
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between the ages of 15 and 29.” Certified Administrative Record (“CAR”) 537. Our review of the
administrative record reveals that the BIA did not err in concluding that, regardless of whether this
proposed social group was cognizable, he failed to show that his membership in that group was
“one central reason” for his persecution. An applicant must demonstrate either through “through
direct or circumstantial evidence” that his persecutors targeted him on account of a protected
ground. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005); see also INS v. Elias-Zacarias, 502
U.S. 478, 483 (1992) (“But since the statute makes [the persecutor’s] motive critical, [the petitioner]
must provide some evidence of it, direct or circumstantial.”).
Substantial evidence supports the agency’s conclusion that Guerra-Galdamez did not
demonstrate that the gang members who harmed him were motivated by anything other than “a
desire by the gang to strengthen its ranks and to punish the respondent for noncompliance.” CAR 4;
see also Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (“[G]eneral crime conditions are not
a stated ground [for asylum].”). First, Guerra-Galdamez’s own statements reflected that he believed
the gang sought money and to recruit him because he was a vulnerable target. He testified both that
MS-13 wanted him to join because he was “young” and could be manipulated, but also that he did
not know why he was targeted. CAR 144-45. He also undermined his claim that the gangs targeted
him because of his group membership when he stated that he did not know of the gang targeting
any other young people in his neighborhood. Further, Guerra-Galdamez’s evidentiary submissions
do not, as the Government states, “fill the evidentiary void left by his own testimony.” See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner bears the burden of
proof, his failure to adduce evidence can itself constitute the ‘substantial evidence’ necessary to
support the agency’s challenged decision.”). Guerra-Galdamez’s country conditions evidence reflects
that gang extortion and violence is common in El Salvador and impacts a large cross-section of the
population beyond males between the ages of 15 and 29.
Accordingly, because Guerra-Galdamez failed to provide sufficient evidence that the gang
members targeted him on account of his membership in his proposed group, the BIA did not err in
finding that he failed to establish his eligibility for asylum or withholding of removal. 1 See 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Paloka, 762 F.3d at 198; see also Melgar de Torres, 191 F.3d at 314.
Finally, Guerra-Galdamez’s additional argument that the BIA engaged in impermissible fact-
finding lacks merit because the BIA appropriately reviewed the IJ’s nexus determination for clear
error. See 8 C.F.R. § 1003.1(d)(3)(i). Further, the BIA’s review of the record was responsive to
Guerra-Galdamez’s arguments on appeal regarding the motives of the gang members and its
conclusions, rather than representing impermissible fact-finding by the Board, were fully consistent
Guerra-Galdamez does not challenge the agency’s denial of relief under the Convention Against
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Torture.
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with the IJ’s factual finding that “there is no indication on the record that the gang members who
recruited respondent had or will have any motives other than increasing the size and influence of
their gang.” CAR 74.
CONCLUSION
We have considered all of Guerra Galdamez’s arguments and find them without merit. For
the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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