Opinion
20-1965 NAC
05-16-2023
PAOLA MAGDALENA CERRATO-VALLADARES, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Charles Christophe, Christophe Law Group, P.C., New York, NY. FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Andrew N. O'Malley, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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 16th day of May, two thousand twenty-three.
FOR PETITIONER: Charles Christophe, Christophe Law Group, P.C., New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Andrew N. O'Malley, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: SUSAN L. CARNEY, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges.
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 Paola Magdalena Cerrato-Valladares, a native and citizen of Honduras, seeks review of a decision of the BIA affirming a decision of an Immigration Judge ("IJ") denying asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Paola Magdalena Cerrato-Valladares, No. A206 767 188 (B.I.A. June 3, 2020), aff'g No. A206 767 188 (Immig. Ct. N.Y.C. June 20, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed the IJ's decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We have reviewed the agency's findings of facts for substantial evidence, and we have reviewed questions of law de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); see also 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.").
As an initial matter, we reject Cerrato-Valladares's contention that her removal proceedings should have been terminated because her notice to appear did not include a hearing date or time, even though a notice of hearing specifying this information was later sent. That challenge to the IJ's jurisdiction is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), which we reaffirmed in Chery v. Garland, 16 F.4th 980 (2d Cir. 2021) after Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021). We further conclude that the agency did not err in finding that Cerrato-Valladares failed to establish her eligibility for asylum, withholding of removal, and CAT relief.
I. Asylum and Withholding of Removal
To establish eligibility for asylum and withholding of removal, an applicant must establish past persecution or a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42); see also id. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b).
The agency reasonably found that Cerrato-Valladares failed to establish past persecution and a well-founded fear of future persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A). To succeed on a particular social group claim, an applicant must establish both that the group itself was cognizable, Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014), and that the applicant's membership in that group "will be at least one central reason for persecuting the applicant," 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 (2d Cir. 2022); Castro v. Holder, 597 F.3d 93, 103 (2d Cir. 2010). Here, the agency found that, even assuming Cerrato-Valladares's proposed social group of her father and aunt's immediate family was cognizable, her membership in that group was not a central reason for her feared persecution. Because Cerrato-Valladares's testimony demonstrated that (1) the gang targeted her aunt, uncle, cousin, and father in 2008 for financial reasons, and (2) threatened her and her grandmother in 2014 to either prevent them from reporting the gang's criminal activities to police or as revenge for a past police report, we cannot say that the agency's decision was unsupported by substantial evidence or erroneous as a matter of law. See, e.g., 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' ....").
We decline to remand in light of the Attorney General's vacatur of Matter of A-B, 27 I. & N. Dec. 316 (A.G. 2018), vacated by Matter of A-B, 28 I. & N. Dec. 307 (A.G. 2021), since the agency did not rely on the now-vacated decision when analyzing nexus.
II. 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). Nevertheless, CAT applicants have the burden to show that if removed they would "more likely than not" be tortured by, or with the acquiescence of, a public official (or other person) acting in an official capacity. 8 C.F.R. §§ 1208.16(c), 1208.18(a); see also Khouzam v. Ashcroft, 361 F.3d 161, 168, 170-71 (2d Cir. 2004). Here, the agency reasonably concluded that Cerrato-Valladares did not establish a likelihood of future torture because gang members had not harmed her in the past despite knowing where she lived, and she did not allege that other family members had been harmed since her father's murder in 2008. See 8 C.F.R. §§ 1208.16(c), 1208.18(a); cf. Jian Xing Huang v. 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."); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding fear of future persecution weakened when similarly situated family members remained unharmed in petitioner's native country). Moreover, even if Cerrato-Valladares could establish a likelihood of future torture by the gang, she makes no developed argument that the agency erred when it concluded that she did not establish that a Honduran public official would acquiesce to that torture. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming argument forfeited when petitioner raised it only in a conclusory sentence on appeal).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.