2 0

- 3135 Acuna

- De Garcia v. Garland BIA Christensen , IJ A 20 8 883 949/950/951 

### 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** 1 **for the Sec ond Circuit,**  **held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 18**  **th da**  **y of April**  **, two thousand twenty** 
**- two** 

**.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR. ,**  7 **RAYMOND J. LOHIER, JR. ,**  8 **MYRNA PÉREZ ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **AURELIA ACUNA**

**- DE GARCIA,**  **M. S.** 13 **G**

**- A, E. L. G** 

**- A**  **,** 14 **Petitioner s**  **,** 15 16
**v. 2**  **0**

**- 3135**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER S**  **:** Carolyn M. Corrado , Esq. , J adeja 24 & Cimone, LLP, Hempstead , NY

. 25 26 **FOR RESPONDENT:** Brian Boynton , Acting A ssistant 27 Attorney General ; Keith I. 282 McManus , Assistant Director ; Nelle 1 M. Seymour , Trial Attorne y , Office 2 of Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5

UPON DUE CONSIDERATION of th is petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED

. 9

Petitione rs Aurelia Acuna

- De Garcia, M.S. G

- A and E.L. 10

G

- A, native s and citizen s o f El Salvador , seek review of a n 11
August 24, 2020 decision of the BIA affirming an August 21, 12

2018 decision of an immigration judge (“IJ”) denying asylum, 13
withholding of removal, and protection under the Convention 14
Against Torture (“CAT”)

. 1 In re Aurelia Acuna

- De Garcia, et 15

a l

. , No s . A 208 883 949/950/951 (B.I.A. Aug. 24 , 202 0 ), aff ’g 16

No s. A 208 883 949/950/951 (Immig. Ct. N.Y. City Aug. 21 , 17

2018 ). We assume the parties’ familiarity with the 18
underlying facts and procedural history

. 19

We have reviewed the IJ’s and the BIA’s decisions “for 20
the sake of completeness.” Wangchuck v. Dep’t of Homeland 21

1 We refer primarily to Aurelia Acuna

- De Garcia , as her two minor daughters were derivative beneficiaries on her application and also filed their own separate asylum applications

.3 Sec. , 448 F.3d 524, 528 (2d Cir. 2006). We review factual 1
findings for substantial evidence and questions of law and 2
application of law to fact de novo. See Yanqin Weng v. 3

Holder , 562 F.3d 510, 513 (2d Cir. 2009); Edimo

- Doualla v. 4

Gonza les , 464 F.3d 276, 282

– 83 (2d Cir. 2006) (applying 5
substantial evidence standard to nexus determination); 6

Nasrallah v. Barr , 140 S. Ct. 1683, 169 0

– 94 (2020) (applying 7
substantial evidence standard to factual findings underlying 8

CAT determination). “[T]he administrative findings of fact 9
are conclusive unless any reasonable adjudicator would be 10
compelled to conclude to the contrary.” 8 U.S.C. 11

§ 1252(b)(4)(B)

. 12
To obtain asylum or withholding of removal, an applicant 13
must establish past persecution or a fear of future 14
persecution and “ that race, religion, nationality, membership 15
in a particular social group, or political opinion was or 16

will be at least one central reason for persecuting the 17
applicant .” 8 U.S.C. § 1158(b)(1)(B)(i) ; see also id. 18

§ 1231(b)(3)(A) ; Quituizaca v. Garland , 52 F.4th 103, 107

- 08 19
(2d Cir. 2022) . “To succeed on a particular social group 20
claim, the applicant must establish both that t he group itself 214 was cognizable and that the alleged persecutors targeted the 1
applicant ‘on account of’ her membership in that group.” 2

Paloka v. Holder , 762 F.3d 191, 195 (2d Cir. 2014) (citation s 3
omitted). The applicant must provide “ some evidence” of the 4
persecutor’s motives, “ direct or circumstantial

. ” INS v. 5

Elias

- Zacarias , 502 U.S. 478, 483 (1992)

. 6

T he agency did not err in finding that Acuna

- De Garcia 7
did not establish the requisite nexus. “ [N] exus is not 8
established simply because a particular social group of 9
family members exists and the family members experience 10

harm.” Matter of L

- E

- A

- , 27 I. & N. Dec. 40, 45 (B.I.A. 11

2017). Acuna

- De Garcia testified that she believed she was 12
targeted for extort ion in 2015 because she was building a 13
house on the same plot of land that her father was building 14
on when her parents were killed in 1994 . She suspected that 15

the assailants wanted the land or were somehow otherwise tied 16
to her parents’ murders, or that t hey targeted her because 17
her husband was in the United States making money. T hese 18

reasons are insufficient to establish the requisite nexus 19

because they indicate that the individuals who extorted her 20
were motivated by financial gain

. See Ucelo

- Gomez v. 215 Mukasey , 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited 1
upon members of a group is attributable to the incentives 2
presented to ordinary criminals rather than to persecution, 3
the scales are tipped away from considering those people a 4
‘particular soci al group’ within the meaning of the INA.”); 5
Melgar de Torres v. Reno , 191 F.3d 307, 313 (2d Cir. 1999) 6
(finding that “act[s] of random violence” do not constitute 7
persecution) ; see also Jian Hui Shao v. Mukasey , 546 F.3d 8
138, 15 7

– 5 8 (2d Cir. 2008) (“[W]hen a petitioner bears the 9
burden of proof, his failure to adduce evidence can itself 10
constitute the ‘substantial evidence’ necessary to support 11
the agency’s challenged decision.”)

. 12
The agency’s denial of CAT protection is also supported 13
by substantial evidence. Acuna

- De Gar c ia had the burden to 14
show that she is “more likely than not to be tortured in the 15
country of removal

. ” 8 C.F.R. § 1208.16(c) (4) . In 16
determining whether torture is more likely than not, the 17
agency is required to consider any past torture and country 18
conditions. 8 C.F.R. § 1208.16(c)(3). 19

Acuna

- De Garcia never testified to any physical ha rm or 20

past torture. See 8 C.F.R. § 1208.18(a)(2) (“Torture is an 216 extreme form of cruel and inhuman treatment and does not 1

include les ser forms of cruel, inhuman or degrading treatment 2
or punishment that do not amount to torture.”); Kyaw Zwar Tun 3

v. U.S. INS , 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture 4
requires proof of something more severe than the kind of 5

treatment that would suffice to prove persecution.”). She 6

also did not allege that anyone in her family had been 7
physically harmed since her parents’ murders in 1994. And 8

h er country conditions evidence documented general crime and 9
gang violence, not that someone in her particular 10

circumstances would be single d out for torture. See Mu Xiang 11
Lin v. U.S. Dep’t of Justice , 432 F.3d 156, 160 (2d Cir. 2005) 12
(requiring “particularized evidence” beyond general country 13
conditions to support a CAT claim) ; Mu

- Xing W ang v. Ashcroft , 14
320 F.3d 130, 144 (2d Cir. 2003) (requiring applicant to 15

“ establish [] that someone in his particular alleged 16
circumstances is more likely than not to be tortured if 17
imprisoned in China” (emphasis omitted))

. 18

19

207 For the foregoing reasons, the petition for review is 1

DENIED

. All pending motions and applications are DENIED and 2

stays VACATED

. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6