Garcia v. Garland ( 2023 )

20-2241
Garcia v. Garland
BIA
Kolbe, IJ
A201 347 244
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 14th day of April, two thousand twenty-
three.
PRESENT:
JOSEPH F. BIANCO,
STEVEN J. MENASHI,
BETH ROBINSON,
Circuit Judges.
_____________________________________
MARIO RENE GARCIA,
Petitioner,
v. 20-2241
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Edgar L. Fankbonner, Goldberger &
Dubin, PC, New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Claire L.
Workman, Senior Litigation
Counsel; John F. Stanton, Trial
Attorney, 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 Mario Rene Garcia, a native and citizen of
Guatemala, seeks review of a June 15, 2020, decision of the
BIA affirming a November 13, 2019, decision of an Immigration
Judge (“IJ”) denying his application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”), and his motion for a continuance. In re Mario Rene
Garcia, No. A201 347 244 (B.I.A. June 15, 2020), aff’g No.
A201 347 244 (Immig. Ct. N.Y. City Nov. 13, 2019). We assume
the parties’ familiarity with the underlying facts and
procedural history.
We have reviewed the IJ’s decision as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency did
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not err in finding that Garcia failed to establish his
eligibility for relief based on his claim that gang members
assaulted him when he was 15 years old or in denying his
request for a continuance to obtain a psychological
examination to determine whether he suffers from post-
traumatic stress disorder (“PTSD”) or attention-
deficit/hyperactivity disorder (“ADHD”).
Asylum and Withholding of Removal
The applicable standards of review are well established.
“[T]he administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, “we review
the agency’s decision for substantial evidence and must defer
to the factfinder’s findings based on such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion. . . . By contrast, we review legal conclusions de
novo.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021)
(internal quotation marks omitted).
An applicant for asylum and withholding of removal “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.”
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8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);
Quituizaca v. Garland, 52 F.4th 103, 105–06, 114 (2d Cir.
2022). Garcia failed to establish that the harm he suffered
and fears was or would be on account of a protected ground.
Garcia asserted that gang members had and would target
him on account of his membership in social groups comprised
of “skilled tradespersons” and “Guatemalans who have informed
on the gangs to local authorities” and on account of an
imputed anti-gang political opinion. “To succeed on a
particular social group claim, the applicant must establish
both that the group itself was cognizable, and that the
alleged persecutors targeted the applicant on account of
h[is] membership in that group.” Paloka v. Holder, 762 F.3d
191, 195 (2d Cir. 2014) (quotation marks and citation
omitted). For a political opinion claim, “[t]he applicant
must . . . show, through direct or circumstantial evidence,
that the persecutor’s motive to persecute arises from the
applicant’s political belief,” Yueqing Zhang v. Gonzales, 426
F.3d 540, 545 (2d Cir. 2005), which “must involve some support
for or disagreement with the belief system, policies, or
practices of a government and its instrumentalities, an
entity that seeks to directly influence laws, regulations, or
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policy, an organization that aims to overthrow the
government, or a group that plays some other similar role in
society,” Zelaya-Moreno v. Wilkinson, 989 F.3d 190, 199–200
(2d Cir. 2021) (citations omitted).
The agency reasonably concluded that Garcia failed to
establish a nexus between the harm he suffered and fears and
his proposed social groups or an imputed anti-gang opinion.
He testified that gang members twice targeted him for
recruitment and financial purposes. He did not testify that
they were interested in him on account of his trade. And
aside from his testimony that gang members called him a
“snitch,” among other names, as he rode public transport
sometime between the attack he reported to police in 1994 and
his departure from Guatemala in 2006, Garcia did not testify
that gang members were aware of his police report or that
they ever mentioned it to him. Nor did he testify that he
had expressed a disagreement with the gang’s “belief system,
policies, or practices,” or that the gang members accused him
of such opinion. Zelaya-Moreno, 989 F.3d at 199–200.
Accordingly, Garcia did not provide facts connecting his
attacks and his fears based on those attacks to his membership
in the social groups of “skilled tradespersons” and
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“Guatemalans who have informed on the gangs to local
authorities” or to an imputed anti-gang political opinion.
Accordingly, the agency did not err in finding that the gang
targeted him based on the gang’s interest in recruiting
members and accumulating wealth, which are not protected
grounds. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A);
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.’”); see also Zelaya-
Moreno, 989 F.3d at 200 (“[R]efusing to join a gang without
more does not constitute a political opinion.”); Yueqing
Zhang, 426 F.3d at 545 (requiring “direct or circumstantial
evidence” of nexus); Melgar de Torres v. Reno, 191 F.3d 307,
313–14 (2d Cir. 1999) (noting that “random violence” and
“general crime conditions” are not grounds for asylum).
Because Garcia failed to establish a nexus between the
harm he suffered and fears and a protected ground, which was
dispositive of asylum and withholding of removal, we do not
consider the agency’s alternative finding that Garcia’s
proposed groups were not cognizable. See 8 U.S.C.
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§§ 1101(a)(42), 1158(b)(1)(A), (B)(i), 1231(b)(3)(A); see
also INS v. Bagamasbad, 429 U.S. 24, 25 (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.”).
CAT Relief
Unlike asylum and withholding of removal, protection
under the CAT does not require a nexus to a protected ground.
See 8 C.F.R. §§ 1208.16(c), 1208.17(a). CAT applicants have
the burden to show they would “more likely than not” be
tortured by or with the acquiescence of government officials.
8 C.F.R. §§ 1208.16(c), 1208.18(a). The agency reasonably
concluded that Garcia did not establish a likelihood of
torture because he was attacked decades earlier, he had
remained unharmed in Guatemala for more than a decade after
he was attacked, his teenage children remain unharmed in his
hometown, and gang members had not threatened him with future
harm. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d
Cir. 2005) (“In the absence of solid support in the record
. . . [an applicant’s] fear is speculative at best.”); Mu-
Xing Wang v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir. 2003)
(providing that a likelihood of torture requires an applicant
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to “establish that there is greater than a fifty percent
chance . . . that he will be tortured upon return to his . . .
country of origin”). Because Garcia failed to establish a
likelihood of torture, we do not reach the agency’s
alternative finding that he did not demonstrate the requisite
government acquiescence to torture. See 8 C.F.R.
§§ 1208.16(c), 1208.18(a); see also Bagamasbad, 429 U.S. at
25.
Continuance
Garcia argues that the agency abused its discretion and
violated due process by failing to grant a continuance for a
psychologist to evaluate him. We review the agency’s denial
of a continuance for abuse of discretion, Morgan v. Gonzales,
445 F.3d 549, 551 (2d Cir. 2006), and constitutional claims
de novo, Gjerjaj v. Holder, 691 F.3d 288, 292 (2d Cir. 2012).
An IJ “may grant a motion for continuance for good cause
shown,” 8 C.F.R. § 1003.29, and only “abuse[s] his discretion
in denying a continuance if (1) his decision rests on an error
of law (such as the application of the wrong legal principle)
or a clearly erroneous factual finding or (2) his decision—
though not necessarily the product of a legal error or a
clearly erroneous factual finding—cannot be located within
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the range of permissible decisions,” Morgan, 445 F.3d at 551–
52 (quotation marks and brackets omitted). “Parties claiming
denial of due process in immigration cases must, in order to
prevail, allege some cognizable prejudice fairly attributable
to the challenged process.” Garcia-Villeda v. Mukasey, 531
F.3d 141, 149 (2d Cir. 2008) (quotation marks omitted). “In
order . . . to show . . . actual prejudice, [a petitioner]
must make a prima facie showing that he would have been
eligible for the relief and that he could have made a strong
showing in support of his application.” Rabiu v. INS, 41
F.3d 879, 882–83 (2d Cir. 1994).
The agency did not abuse its discretion or violate due
process in denying a continuance because, contrary to
Garcia’s argument, a psychological report diagnosing him with
PTSD and ADHD would not have changed the outcome of his case
by excusing the untimely filing of his asylum application,
demonstrating his incompetence to proceed, or establishing
his eligibility for humanitarian asylum. See Morgan, 445
F.3d at 551–52; Rabiu, 41 F.3d at 882–83; cf. Elbahja v.
Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (concluding that an
IJ does not abuse his discretion by denying a continuance
sought to pursue relief that is speculative). First, the
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agency did not rely on the untimeliness of Garcia’s asylum
application to deny relief. Second, Garcia’s attorney never
expressed concern with his competency and the record did not
include indicia of mental incompetence, such as the
“inability to understand and respond to questions, the
inability to stay on topic, . . . a high level of
distraction[,] . . . [or] evidence of mental illness.”
Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (B.I.A. 2011).
Third, Garcia was not eligible for humanitarian asylum
because he failed to establish that he suffered past
persecution on account of a protected ground. See 8 C.F.R.
§ 1208.13(b)(1)(iii) (humanitarian asylum provision); Kone v.
Holder, 596 F.3d 141, 153 (2d Cir. 2010) (recognizing
“humanitarian asylum’s foundational requirement that the
applicant must herself establish past persecution and herself
be a refugee”). Accordingly, the agency did not abuse its
discretion or violate Garcia’s due process rights in denying
a continuance. See Morgan, 445 F.3d at 551-52; Garcia-
Villeda, 531 F.3d at 149.
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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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