20-2241

Garcia v. Garland

BIA

Kolbe, IJ

A201 347 244

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 

for the Second Circuit, held at the Thurgood Marshall 

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

New York, on the 14th day of April, two thousand twentythree.

PRESENT:

JOSEPH F. BIANCO,

STEVEN J. MENASHI,

BETH ROBINSON,

Circuit Judges.

_____________________________________

MARIO RENE GARCIA,

Petitioner,

v. 20-2241

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Edgar L. Fankbonner, Goldberger & 

 Dubin, PC, New York, NY.

 
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FOR RESPONDENT: Brian Boynton, Acting Assistant

Attorney General; Claire L. 

Workman, Senior Litigation 

Counsel; John F. Stanton, 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 Mario Rene Garcia, a native and citizen of 

Guatemala, seeks review of a June 15, 2020, decision of the 

BIA affirming a November 13, 2019, decision of an Immigration 

Judge (“IJ”) denying his application for asylum, withholding 

of removal, and relief under the Convention Against Torture 

(“CAT”), and his motion for a continuance. In re Mario Rene 

Garcia, No. A201 347 244 (B.I.A. June 15, 2020), aff’g No. 

A201 347 244 (Immig. Ct. N.Y. City Nov. 13, 2019). We assume 

the parties’ familiarity with the underlying facts and 

procedural history.

We have reviewed the IJ’s decision as modified and 

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of 

Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. 

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The agency did 
3

not err in finding that Garcia failed to establish his 

eligibility for relief based on his claim that gang members 

assaulted him when he was 15 years old or in denying his 

request for a continuance to obtain a psychological 

examination to determine whether he suffers from posttraumatic stress disorder (“PTSD”) or attentiondeficit/hyperactivity disorder (“ADHD”). 

Asylum and Withholding of Removal

The applicable standards of review are well established. 

“[T]he administrative findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to 

the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, “we review 

the agency’s decision for substantial evidence and must defer 

to the factfinder’s findings based on such relevant evidence 

as a reasonable mind might accept as adequate to support a 

conclusion. . . . By contrast, we review legal conclusions de 

novo.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021)

(internal quotation marks omitted). 

An applicant for asylum and withholding of removal “must 

establish that race, religion, nationality, membership in a 

particular social group, or political opinion was or will be 

at least one central reason for persecuting the applicant.” 
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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, 114 (2d Cir. 

2022). Garcia failed to establish that the harm he suffered 

and fears was or would be on account of a protected ground. 

Garcia asserted that gang members had and would target 

him on account of his membership in social groups comprised 

of “skilled tradespersons” and “Guatemalans who have informed 

on the gangs to local authorities” and on account of an 

imputed anti-gang political opinion. “To succeed on a 

particular social group claim, the applicant must establish 

both that the group itself was cognizable, and that the 

alleged persecutors targeted the applicant on account of 

h[is] membership in that group.” Paloka v. Holder, 762 F.3d 

191, 195 (2d Cir. 2014) (quotation marks and citation 

omitted). For a political opinion claim, “[t]he applicant 

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

that the persecutor’s motive to persecute arises from the 

applicant’s political belief,” Yueqing Zhang v. Gonzales, 426 

F.3d 540, 545 (2d Cir. 2005), which “must involve some support 

for or disagreement with the belief system, policies, or 

practices of a government and its instrumentalities, an 

entity that seeks to directly influence laws, regulations, or 
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policy, an organization that aims to overthrow the 

government, or a group that plays some other similar role in 

society,” Zelaya-Moreno v. Wilkinson, 989 F.3d 190, 199–200 

(2d Cir. 2021) (citations omitted).

The agency reasonably concluded that Garcia failed to 

establish a nexus between the harm he suffered and fears and 

his proposed social groups or an imputed anti-gang opinion. 

He testified that gang members twice targeted him for 

recruitment and financial purposes. He did not testify that 

they were interested in him on account of his trade. And 

aside from his testimony that gang members called him a 

“snitch,” among other names, as he rode public transport 

sometime between the attack he reported to police in 1994 and 

his departure from Guatemala in 2006, Garcia did not testify 

that gang members were aware of his police report or that 

they ever mentioned it to him. Nor did he testify that he 

had expressed a disagreement with the gang’s “belief system, 

policies, or practices,” or that the gang members accused him 

of such opinion. Zelaya-Moreno, 989 F.3d at 199–200. 

Accordingly, Garcia did not provide facts connecting his

attacks and his fears based on those attacks to his membership 

in the social groups of “skilled tradespersons” and 
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“Guatemalans who have informed on the gangs to local

authorities” or to an imputed anti-gang political opinion. 

Accordingly, the agency did not err in finding that the gang 

targeted him based on the gang’s interest in recruiting 

members and accumulating wealth, which are not protected 

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

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.’”); see also ZelayaMoreno, 989 F.3d at 200 (“[R]efusing to join a gang without 

more does not constitute a political opinion.”); Yueqing 

Zhang, 426 F.3d at 545 (requiring “direct or circumstantial 

evidence” of nexus); Melgar de Torres v. Reno, 191 F.3d 307, 

313–14 (2d Cir. 1999) (noting that “random violence” and 

“general crime conditions” are not grounds for asylum). 

Because Garcia failed to establish a nexus between the 

harm he suffered and fears and a protected ground, which was 

dispositive of asylum and withholding of removal, we do not 

consider the agency’s alternative finding that Garcia’s 

proposed groups were not cognizable. See 8 U.S.C. 
7

§§ 1101(a)(42), 1158(b)(1)(A), (B)(i), 1231(b)(3)(A); see 

also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general 

rule courts and agencies are not required to make findings on 

issues the decision of which is unnecessary to the results 

they reach.”). 

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). CAT applicants have 

the burden to show they would “more likely than not” be 

tortured by or with the acquiescence of government officials. 

8 C.F.R. §§ 1208.16(c), 1208.18(a). The agency reasonably 

concluded that Garcia did not establish a likelihood of 

torture because he was attacked decades earlier, he had 

remained unharmed in Guatemala for more than a decade after 

he was attacked, his teenage children remain unharmed in his 

hometown, and gang members had not threatened him with future 

harm. See Jian Xing Huang v. U.S. 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.”); MuXing Wang v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir. 2003) 

(providing that a likelihood of torture requires an applicant 
8

to “establish that there is greater than a fifty percent 

chance . . . that he will be tortured upon return to his . . . 

country of origin”). Because Garcia failed to establish a 

likelihood of torture, we do not reach the agency’s 

alternative finding that he did not demonstrate the requisite 

government acquiescence to torture. See 8 C.F.R. 

§§ 1208.16(c), 1208.18(a); see also Bagamasbad, 429 U.S. at 

25.

Continuance

Garcia argues that the agency abused its discretion and 

violated due process by failing to grant a continuance for a 

psychologist to evaluate him. We review the agency’s denial 

of a continuance for abuse of discretion, Morgan v. Gonzales, 

445 F.3d 549, 551 (2d Cir. 2006), and constitutional claims 

de novo, Gjerjaj v. Holder, 691 F.3d 288, 292 (2d Cir. 2012). 

An IJ “may grant a motion for continuance for good cause 

shown,” 8 C.F.R. § 1003.29, and only “abuse[s] his discretion 

in denying a continuance if (1) his decision rests on an error 

of law (such as the application of the wrong legal principle) 

or a clearly erroneous factual finding or (2) his decision—

though not necessarily the product of a legal error or a 

clearly erroneous factual finding—cannot be located within 
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the range of permissible decisions,” Morgan, 445 F.3d at 551–

52 (quotation marks and brackets omitted). “Parties claiming 

denial of due process in immigration cases must, in order to 

prevail, allege some cognizable prejudice fairly attributable 

to the challenged process.” Garcia-Villeda v. Mukasey, 531 

F.3d 141, 149 (2d Cir. 2008) (quotation marks omitted). “In 

order . . . to show . . . actual prejudice, [a petitioner] 

must make a prima facie showing that he would have been 

eligible for the relief and that he could have made a strong 

showing in support of his application.” Rabiu v. INS, 41 

F.3d 879, 882–83 (2d Cir. 1994). 

The agency did not abuse its discretion or violate due 

process in denying a continuance because, contrary to 

Garcia’s argument, a psychological report diagnosing him with 

PTSD and ADHD would not have changed the outcome of his case

by excusing the untimely filing of his asylum application, 

demonstrating his incompetence to proceed, or establishing 

his eligibility for humanitarian asylum. See Morgan, 445 

F.3d at 551–52; Rabiu, 41 F.3d at 882–83; cf. Elbahja v.

Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (concluding that an 

IJ does not abuse his discretion by denying a continuance 

sought to pursue relief that is speculative). First, the 
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agency did not rely on the untimeliness of Garcia’s asylum 

application to deny relief. Second, Garcia’s attorney never 

expressed concern with his competency and the record did not 

include indicia of mental incompetence, such as the 

“inability to understand and respond to questions, the 

inability to stay on topic, . . . a high level of 

distraction[,] . . . [or] evidence of mental illness.” 

Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (B.I.A. 2011). 

Third, Garcia was not eligible for humanitarian asylum 

because he failed to establish that he suffered past 

persecution on account of a protected ground. See 8 C.F.R. 

§ 1208.13(b)(1)(iii) (humanitarian asylum provision); Kone v. 

Holder, 596 F.3d 141, 153 (2d Cir. 2010) (recognizing 

“humanitarian asylum’s foundational requirement that the 

applicant must herself establish past persecution and herself 

be a refugee”). Accordingly, the agency did not abuse its 

discretion or violate Garcia’s due process rights in denying 

a continuance. See Morgan, 445 F.3d at 551-52; GarciaVilleda, 531 F.3d at 149.
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For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court