Rochez-Torres v. Garland

R
    19-162
    Rochez-Torres v. Garland
                                                                                   BIA
                                                                             Poczter, IJ
                                                                          A206 629 195

                               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
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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.

         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 17th day of May, two thousand twenty-one.

    PRESENT:
             ROSEMARY S. POOLER,
             RAYMOND J. LOHIER, JR.,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _________________________________________

    ELVIS ADONAY ROCHEZ-TORRES,
             Petitioner,

                      v.                                         19-162
                                                                 NAC
    MERRICK B. GARLAND, UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:                       H. Raymond Fasano, Esq.,
                                          Youman, Madeo & Fasano, LLP,
                                          New York, NY.

    FOR RESPONDENT:                       Brian M. Boynton, Acting
                                          Assistant Attorney General;
                                          Anthony P. NiCastro, Assistant
                                          Director; Ilana J. Snyder, 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     Elvis   Adonay       Rochez-Torres,      a    native   and

citizen of El Salvador, seeks review of a December 17, 2018

decision of the BIA affirming a November 14, 2017 decision of

an Immigration Judge (“IJ”) denying asylum and withholding of

removal.   In re Elvis Adonay Rochez-Torres, No. A206 629 195

(B.I.A. Dec. 17, 2018), aff’g No. A206 629 195 (Immig. Ct.

N.Y. City Nov. 14, 2017).       We assume the parties’ familiarity

with the underlying facts and procedural history.

    We have reviewed both the IJ’s and the BIA’s opinions

“for the sake of completeness.”                Wangchuck v. Dep’t of

Homeland   Sec.,   

448 F.3d 524

,     528   (2d   Cir.       2006).    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).

    An applicant for asylum and withholding of removal “must

establish that race, religion, nationality, membership in a
                                    2
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); see also

id. § 1231(b)(3)(A);

Matter

of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010)

(applying    one   central    reason   standard   to   withholding     of

removal).     The issue before us is whether Rochez-Torres

established    that   rogue    officers   and   gang   members    in   El

Salvador harmed him in the past and would target him in the

future on account of an imputed anti-gang political opinion

or membership in a social group of Salvadoran men who have

witnessed collusion between the police and a gang.               We find

no error in the agency’s conclusion that he did not.

    To demonstrate that past or prospective persecution bears

a nexus to an applicant’s political opinion, “[t]he applicant

must . . . show, through direct or circumstantial evidence,

that the persecutor’s motive to persecute arises from the

applicant’s political belief[s],” rather than merely from the

persecutor’s own opinion.         Yueqing Zhang v. Gonzales, 

426

F.3d 540

, 545 (2d Cir. 2005).          “The persecution may also be

on account of an opinion imputed to the applicant by the

persecutor, regardless of whether or not this imputation is

accurate.”    Hernandez-Chacon v. Barr, 

948 F.3d 94

, 102 (2d

                                   3
Cir. 2020)(emphasis in original).

    Rochez-Torres testified that gang members targeted him

because they wanted him to remain quiet about their collusion

with police, give them money, and join their ranks.                 But

Rochez-Torres    did   not    testify    that   the   gang   made   any

statements or took any actions from which the IJ could infer

that the gang members believed he had an anti-gang opinion or

targeted   him   on    that   account.      Further,    although    he

purportedly told gang members that he did not want to join a

delinquent — i.e., criminal — group, gang members could have

inferred from this statement that he was “risk averse[]”

rather than anti-gang, particularly given that he complied

with their other demands by declining to reveal the collusion

he witnessed and complying with their demands for money

whenever they confronted him          in person.      INS v. Elias-

Zacarias, 

502 U.S. 478

, 483 (1992).        Accordingly, the agency

was not compelled to conclude that Rochez-Torres established

that the rogue officers or gang members targeted him or would

do so in the future on account of an imputed political

opinion.   See id.; see also Yueqing 

Zhang, 426 F.3d at 545

;

Matter of S-E-G-, 24 I. & N. Dec. 579, 589 (B.I.A. 2008)

(finding no nexus when applicants “did not establish what

                                  4
political opinion, if any, they held, and . . . provided no

evidence, direct or circumstantial, that the MS-13 gang in El

Salvador imputed, or would impute to them, an anti-gang

political opinion.”).

    Rochez-Torres also asserted that he was or would be

targeted for persecution on account of his membership in a

particular social group.    To constitute a particular social

group, a group must be “(1) composed of members who share a

common   immutable      characteristic,   (2) defined    with

particularity, and (3) socially distinct within the society

in question.”   Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237

(B.I.A. 2014); see also 

Paloka, 762 F.3d at 196

; Ucelo-Gomez

v. Mukasey, 

509 F.3d 70

, 72–73 (2d Cir. 2007).    We find no

error in the agency’s determination that Rochez-Torres’s

proposed group of Salvadoran men who have witnessed collusion

between the police and gangs is not socially distinct within

Salvadoran society.

    “To have the ‘social distinction’ necessary to establish

a particular social group, there must be evidence showing

that society in general perceives, considers, or recognizes

persons sharing the particular characteristic to be a group.”

Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (B.I.A. 2014).

                               5
Rochez-Torres argues that evidence that gangs in El Salvador

have reportedly killed witnesses and victims to silence them

shows that persecutors can easily identify witnesses and

victims and thus the group of such individuals is socially

distinct within society.        Although “persecution can be the

‘catalyst’ for societal recognition,” 

Paloka, 762 F.3d at 198

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 243), the

fact that criminals can identify witnesses and victims of

their crimes does not alone establish that the greater society

perceives or recognizes witnesses or victims of crimes as a

distinct group, see 

Ucelo-Gomez, 509 F.3d at 73

(“[I]t matters

that the petitioners’ self-definition as a social group for

asylum   purposes     depends   on       no   disadvantage   other   than

purported visibility to criminals [because] [w]hen the harm

visited upon members of the 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.” (internal quotation

marks    omitted)).       Indeed,        “[t]he    perception   of    the

applicant’s persecutors may be relevant, because it can be

indicative of whether society views the group as distinct[,]

[but] the persecutors’ perception is not itself enough to

                                     6
make a group socially distinct, and persecutory conduct alone

cannot define the group.”             Matter of M-E-V-G-, 26 I. & N.

Dec.    at    242   (noting        requirement    that    “the     immutable

characteristic      of     their    shared   past    experience      exist[]

independent of the persecution”).            Further, as the IJ noted,

Rochez-Torres testified that he did not know of anybody else

who had witnessed police and gang members committing a crime,

thereby      diminishing    his     assertion    that    such    individuals

comprise a distinct group in society and that he was targeted

on account of his membership in such a group.

       Alternatively,      the    agency   reasonably     concluded    that,

even if Rochez-Torres’s social group is cognizable, he failed

to demonstrate that his membership in that group was one

central reason for the harm he suffered and fears because he

testified that the rogue officers and gang members targeted

him because they wanted to prevent the public from learning

of their collusion, the gang attempted to recruit all young

people to increase their membership, and the gang extorted

him because it believed he had money.               See 

Ucelo-Gomez, 509

F.3d at 73

.

       Because Rochez-Torres failed to establish a nexus between

the harm he suffered and fears and a protected ground, the

                                       7
agency did not err in denying asylum and withholding of

removal.   See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe,
                            Clerk of Court




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