20-3135

Acuna-De Garcia v. Garland

BIA

Christensen, IJ

A208 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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 18th 4 day of April, two thousand twenty-two.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 RAYMOND J. LOHIER, JR.,

9 MYRNA PÉREZ,

10 Circuit Judges.

11 _____________________________________

12

13 AURELIA ACUNA-DE GARCIA, M. S. 

14 G-A, E. L. G-A,

15 Petitioners,

16

17 v. 20-3135

18 NAC

19 MERRICK B. GARLAND, UNITED

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONERS: Carolyn M. Corrado, Esq., Jadeja 

25 & Cimone, LLP, Hempstead, NY.

26

27 FOR RESPONDENT: Brian Boynton, Acting Assistant

28 Attorney General; Keith I. 
2

1 McManus, Assistant Director; Nelle 

2 M. Seymour, Trial Attorney, Office 

3 of Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a 

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED.

10 Petitioners Aurelia Acuna-De Garcia, M.S. G-A and E.L. 

11 G-A, natives and citizens of El Salvador, seek review of an 

12 August 24, 2020 decision of the BIA affirming an August 21, 

13 2018 decision of an immigration judge (“IJ”) denying asylum, 

14 withholding of removal, and protection under the Convention 

15 Against Torture (“CAT”).1 In re Aurelia Acuna-De Garcia, et 

16 al., Nos. A208 883 949/950/951 (B.I.A. Aug. 24, 2020), aff’g

17 Nos. A208 883 949/950/951 (Immig. Ct. N.Y. City Aug. 21, 

18 2018). We assume the parties’ familiarity with the 

19 underlying facts and procedural history.

20 We have reviewed the IJ’s and the BIA’s decisions “for 

21 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

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

1 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review factual 

2 findings for substantial evidence and questions of law and 

3 application of law to fact de novo. See Yanqin Weng v. 

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

5 Gonzales, 464 F.3d 276, 282–83 (2d Cir. 2006) (applying 

6 substantial evidence standard to nexus determination);

7 Nasrallah v. Barr, 140 S. Ct. 1683, 1690–94 (2020) (applying 

8 substantial evidence standard to factual findings underlying 

9 CAT determination). “[T]he administrative findings of fact 

10 are conclusive unless any reasonable adjudicator would be 

11 compelled to conclude to the contrary.” 8 U.S.C. 

12 § 1252(b)(4)(B).

13 To obtain asylum or withholding of removal, an applicant 

14 must establish past persecution or a fear of future 

15 persecution and “that race, religion, nationality, membership 

16 in a particular social group, or political opinion was or 

17 will be at least one central reason for persecuting the 

18 applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id.

19 § 1231(b)(3)(A); Quituizaca v. Garland, 52 F.4th 103, 107-08

20 (2d Cir. 2022). “To succeed on a particular social group 

21 claim, the applicant must establish both that the group itself 
4

1 was cognizable and that the alleged persecutors targeted the 

2 applicant ‘on account of’ her membership in that group.” 

3 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014)(citations

4 omitted). The applicant must provide “some evidence” of the 

5 persecutor’s motives, “direct or circumstantial.” INS v. 

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

7 The agency did not err in finding that Acuna-De Garcia 

8 did not establish the requisite nexus. “[N]exus is not 

9 established simply because a particular social group of 

10 family members exists and the family members experience 

11 harm.” Matter of L-E-A-, 27 I. & N. Dec. 40, 45 (B.I.A. 

12 2017). Acuna-De Garcia testified that she believed she was 

13 targeted for extortion in 2015 because she was building a 

14 house on the same plot of land that her father was building 

15 on when her parents were killed in 1994. She suspected that 

16 the assailants wanted the land or were somehow otherwise tied 

17 to her parents’ murders, or that they targeted her because 

18 her husband was in the United States making money. These 

19 reasons are insufficient to establish the requisite nexus

20 because they indicate that the individuals who extorted her 

21 were motivated by financial gain. See Ucelo-Gomez v. 
5

1 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)(“When the harm visited 

2 upon members of a group is attributable to the incentives 

3 presented to ordinary criminals rather than to persecution, 

4 the scales are tipped away from considering those people a 

5 ‘particular social group’ within the meaning of the INA.”); 

6 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) 

7 (finding that “act[s] of random violence” do not constitute 

8 persecution); see also Jian Hui Shao v. Mukasey, 546 F.3d 

9 138, 157–58 (2d Cir. 2008) (“[W]hen a petitioner bears the 

10 burden of proof, his failure to adduce evidence can itself 

11 constitute the ‘substantial evidence’ necessary to support 

12 the agency’s challenged decision.”). 

13 The agency’s denial of CAT protection is also supported 

14 by substantial evidence. Acuna-De Garcia had the burden to 

15 show that she is “more likely than not to be tortured in the 

16 country of removal.” 8 C.F.R. § 1208.16(c)(4). In 

17 determining whether torture is more likely than not, the 

18 agency is required to consider any past torture and country 

19 conditions. 8 C.F.R. § 1208.16(c)(3). 

20 Acuna-De Garcia never testified to any physical harm or 

21 past torture. See 8 C.F.R. § 1208.18(a)(2) (“Torture is an 
6

1 extreme form of cruel and inhuman treatment and does not 

2 include lesser forms of cruel, inhuman or degrading treatment 

3 or punishment that do not amount to torture.”); Kyaw Zwar Tun 

4 v. U.S. INS, 445 F.3d 554, 567 (2d Cir. 2006) (“[T]orture 

5 requires proof of something more severe than the kind of 

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

7 also did not allege that anyone in her family had been 

8 physically harmed since her parents’ murders in 1994. And 

9 her country conditions evidence documented general crime and 

10 gang violence, not that someone in her particular

11 circumstances would be singled out for torture. See Mu Xiang 

12 Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005) 

13 (requiring “particularized evidence” beyond general country 

14 conditions to support a CAT claim); Mu-Xing Wang v. Ashcroft, 

15 320 F.3d 130, 144 (2d Cir. 2003) (requiring applicant to

16 “establish[] that someone in his particular alleged 

17 circumstances is more likely than not to be tortured if 

18 imprisoned in China” (emphasis omitted)).

19

20
7

1 For the foregoing reasons, the petition for review is 

2 DENIED. All pending motions and applications are DENIED and 

3 stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe,

6 Clerk of Court