Cruz Ventura v. Garland ( 2023 )

20-3828
Cruz Ventura v. Garland
BIA
Lurye, IJ
A206 013 523
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 24th day of April, two thousand twenty-three.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GUIDO CALABRESI,
9 EUNICE C. LEE,
10 Circuit Judges.
11 _____________________________________
12
13 RUDY ORLANDO CRUZ VENTURA,
14 Petitioner,
15
16 v. 20-3828
17 NAC
18 MERRICK B. GARLAND, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Michael Borja, Borja Law Firm, P.C.,
25 Jackson Heights, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
28 Attorney General; Walter Bocchini,
29 Susan Bennett Green, Senior
30 Litigation Counsel, Office of
31 Immigration Litigation, United States
32 Department of Justice, Washington,
33 DC.
1
2 UPON DUE CONSIDERATION of this petition for review of a Board
3 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
4 ADJUDGED, AND DECREED that the petition for review is DENIED.
5 Rudy Orlando Cruz Ventura, a native and citizen of Guatemala,
6 seeks review of an October 9, 2020 decision of the BIA affirming
7 a December 12, 2017 decision of an Immigration Judge (“IJ”) denying
8 his application for withholding of removal. 1 In re Rudy Orlando
9 Cruz Ventura, No. A 206 013 523 (B.I.A. Oct. 9, 2020), aff’g No.
10 A 206 013 523 (Immigr. Ct. N.Y. City Dec. 12, 2017). We assume
11 the parties’ familiarity with the underlying facts and procedural
12 history.
13 “When the BIA briefly affirms the decision of an IJ and adopts
14 the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s
15 decisions together.” Wangchuck v. Dep’t of Homeland Sec., Immigr.
16 & Customs Enf’t, 448 F.3d 524, 528 (2d Cir. 2006) (internal
17 quotation marks removed and alterations adopted). We review
18 findings of fact for substantial evidence. See Edimo-Doualla v.
19 Gonzales, 464 F.3d 276, 282 (2d Cir. 2006). Under the substantial
20 evidence standard, “a finding will stand if it is supported by
21 reasonable, substantial, and probative evidence in the record when
1 Cruz Ventura did not seek asylum, and he does not challenge the
denial of his claim under the Convention Against Torture.
2
1 considered as a whole.” Secaida-Rosales v. I.N.S., 331 F.3d 297,
2 307 (2d Cir. 2003) (internal quotation marks omitted).
3 Here, substantial evidence supports the agency’s conclusion
4 that Cruz Ventura failed to establish that gang members persecuted
5 him because of his religion. Cruz Ventura had the burden to
6 establish before the IJ that his religion was “at least one central
7 reason” for the gang members’ actions. Quituizaca v. Garland, 52
8 F.4th 103, 110 (2d Cir. 2022). Although there may be “more than
9 one motive for mistreatment,” Acharya v. Holder, 761 F.3d 289, 297
10 (2d Cir. 2014), “the protected ground cannot play a minor role in
11 the alien’s past mistreatment or fears of future mistreatment.
12 That is, it cannot be incidental, tangential, superficial, or
13 subordinate to another reason for harm,” In re J-B-N-& S-M-, 24 I.
14 & N. Dec. 208, 214 (B.I.A. 2007).
15 Cruz Ventura testified that on three occasions on his way
16 home from work in 1998, gang members robbed him, tried to recruit
17 him, and assaulted him. He believed they targeted him because,
18 as an Evangelical Christian, he would not retaliate. However, he
19 also conceded that gang members would attack anyone they believed
20 would not retaliate regardless of religion, and he presented no
21 evidence that the gang members who attacked him were motivated by
22 his religion. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)
23 (requiring “some evidence of [the persecutor’s motive], direct or
3
1 circumstantial”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 157–58
2 (2d Cir. 2008) (“[W]hen a petitioner bears the burden of proof,
3 his failure to adduce evidence can itself constitute the
4 substantial evidence necessary to support the agency’s challenged
5 decision.” (internal quotation marks omitted)). At most, Cruz
6 Ventura speculated that gang members believed he was an Evangelical
7 Christian based on his clothing. See Jian Xing Huang v. INS, 421
8 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in
9 the record . . . [a] fear is speculative at best.”). Moreover,
10 Cruz Ventura admitted that the gang members robbed him, attempted
11 to recruit him, and would target non-religious people if they
12 believed that they, too, would not retaliate. Thus, the record
13 demonstrates that Cruz Ventura’s religion was, at most, incidental
14 to the gang members’ underlying motives: money and recruitment.
15 See Garcia-Aranda v. Garland, 53 F.4th 752, 758 (2d Cir. 2022)
16 (finding that family membership was not a central reason for
17 persecution despite gang members perceiving applicant as wealthy
18 based in part on her inheritance from her family).
19
20
4
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and stays
3 VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
5