19

- 3 656 Carrasco

- Canales v. Garland BIA Loprest , IJ A 077 406 8 20 

### 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 FED**  **ERAL 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** 1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **0 t**  **h d**  **a y of**  **M a**  **y , two thousand**  **twenty**
**- two** 

**.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL ,**  7 **REENA RAGGI ,**  8 **JOSEPH F. BIANCO ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **ORLIN ANTONIO CARRASCO**

**- CANALES**  **,** 13 **Petitioner ,**  14 15
**v. 19** 

**- 3**  **656** 16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER** : Craig Relles , Esq. , White Plains , 23 NY

. 24 25 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 26 Attorney General ; Mary Jane 27 Candaux , Assistant Director; 282 Stephen Finn , Trial Attorney , 1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, D C. 4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) dec ision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 7

is DENIED

. 8

Petitioner Orlin Antonio Carrasco

- Canales , a native and 9

citizen of Honduras , seeks review of a n October 16 , 2019 , 10

decision of the BIA affirming a n April 17 , 201 9 , decision of 11
an Immigration Judge (“IJ”) denying his application for 12
withholding of removal and relief under the Convention 13
Against Torture (“CAT”)

. In re Orlin Antonio Carrasco

14

Canales , No. A 077 406 820 (B.I.A. Oct. 1 6 , 2019 ), aff’g No. 15

A 077 406 820 ( Immig. Ct. N.Y. City Apr. 1 7 , 201 9 ). We assume 16
the parties’ familiarity with the underlying facts and 17
procedural history. 18
Under the circumstances, we have review ed the decisions 19

of both the IJ and the BIA

. See Xiao Xing Ni v. Gonzales , 20
494 F.3d 260, 26 2 (2d Cir. 2007)

. The applicable standards 21

of review are well established. See 8 U.S.C. 22

§ 1252(b)(4)(B); Paloka v. Holder , 762 F.3d 191, 195 (2d Cir. 233 2014) (reviewing factual findings for substantial evidence 1
and questions of law de novo). Carrasco

- Cana les applied for 2
withholding of removal based on political opinion and 3
membership in a particular social group, and for CAT relief, 4
asserting that a Honduran crime family

— the Acostas

— threatened 5

him because he refused to sell them his livestock and because 6

t hey suspected him of having an affair with the wife of a n 7
Acosta family member

. 8

**I. Withholding of Removal**  9
An applicant for withholding of removal must establish 10

that his “life or freedom would be threatened in [the] country 11
[of removal]” on the basis of “race, religion, nationality, 12
membership in a particular social group, or political 13
opinion.” 8 U.S.C. § 1231(b)(3)(A)

. An applicant must 14

“ demonstrate a clear probabilit y of future persecution on 15
account of a protected characteristic ,” Hong Fei Gao v. 16

Sessions , 891 F.3d 67, 76 (2d Cir. 2018) (quotation marks 17

omitted )

. 18
Even assuming Carrasco

- Canales ’s past harm rose to the 19
level of persecution, the agency did not err in denying 20
withholding of removal because the record supports the 214 agency’s conclusion that Carrasco

- Canales failed to show a 1
nexus to a protected ground. An applicant must establish 2
both that there is an applicable protected ground and that 3

hi s alleged persecutors were motivated to harm him on that 4

basis. See Castro v. Holder , 597 F.3d 93, 100 (2d Cir. 2010)

. 5

Here, Carrasco

- Canales’s claimed memberships in several 6
social groups based on his status as a businessowner and 7
landowner facing extor tion were not cognizable

. 1 “T o 8
constitute a particular social group, a group must be: 9

“(1) composed of members who share a common immutable 10
characteristic, (2) defined with particularity, and 11

(3) socially distinct within the society in question.” 12

Matter of M

- E

- V

- G

- , 26 I. & N. Dec. 227, 237 (B.I.A. 2014) ; 13

see also Paloka , 762 F.3d at 195

– 97. The agency did not err 14
in concluding that the proposed groups were not cognizable 15

because the record reflected t hat broad swaths of the Honduran 16

p opulation are victims of crime and Carrasco

- Canales’s 17

1 Insofar as Carrasco

- Canales challenges the IJ’s failure to address whether he expressed a political opinion when he refused to pay a bribe to a traffic officer, he did not raise this claim before the BIA and it is therefore unexhausted

. S ee Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 107 n.1, 118

- 22 (2d Cir. 2007) (holding that our review is generally limited to issues raised before the agency).5 proposed groups we re based on access to money or property or 1
defined by the harm suffered

. See Ucelo

- Gomez v. Mukasey , 2
509 F.3d 70, 73 (2d Cir. 2007) (holding that “a social group 3

cannot be defined exc lusively by the fact that its members 4

have been subjected to harm” ). “ When the harm visited upon 5
members of a group is attributable to the incentives presented 6
to ordinary criminals rather than to persecution, the scales 7
are tipped away from considering those people a ‘ particular 8
social group ’ within the meaning of the INA. ” Id. 9
Moreover, the record supports the agency’s conclusion 10

that Carrasco

- Canales also failed to show that his membership 11
in any group was a reason for the harm he suffered. See 12

Paloka , 762 F.3d at 195 (“the applicant must establish both 13
that the group i tself was cognizable and that the alleged 14
persecutors targeted the applicant on account of h[is] 15
membership in that group” (citations and quotation marks 16
omitted)). Carrasco

- Canales concurs with the agency findings 17
that personal avarice played a role in t he Acosta family ’s 18

actions , and his own testimony reflects th at he was targeted 19
for his assets and his suspected affair

. Although h e 20
maintains that his status as a landowner facing extortion 216 constitutes a distinct and particular social group, he does 1
not show that the Acostas targeted him for that reason

. 2

**II. CAT Claim**  3
The agency did not err in finding that Carrasco

- Canales 4
failed to meet his burden of proof for CAT relief. See 5

8 C.F.R. § 1208.16 (c)(2). A CAT applicant must prove that 6
“it is more likely than not that he

. . . would be tortured,” 7

id. , “by or at the instigation of or with the consent or 8
acquiescence of a public official,” id. § 1208.18(a)(1 )

. 9

“ T orture is an extreme form of cruel a nd inhuman treatment 10
and does not include lesser forms of cruel, inhuman or 11
degrading treatment or punishment that do not amount to 12

torture

. ” 8 C.F.R. § 1 208.18(a)(2) ; see also Kyaw Zwar Tun 13

v. INS , 445 F.3d 554, 567 (2d Cir. 2006) ( “ [T] orture requires 14
proof of something more severe than the kind of treatment 15
that would suffice to prove persecution.”). In assessing the 16

likelihood of torture , the agency consider s , among other 17

factors, past torture , the possibility of relocation , “gross, 18
flagran t, or mass violations of human rights within the 19
country of removal , ” and “[o]ther relevant information 20
regarding conditions in the country of removal.” 217 8 C.F.R. § 1208.16(c)(3)(i)

– (v). “ A n alien will never be 1
able to show that he faces a more likely tha n not chance of 2

torture if one link in the chain cannot be shown to be more 3
likely than not to occur. It is the likelihood of all 4
necessary events coming together that must more likely than 5
not lead to torture, and a chain of events cannot be more 6
likely than its least likely link. ” Savchuck v. Mukasey , 518 7
F.3d 119, 123 (2d Cir. 2008) (quoting Matter of J

– F

– F

– , 23 I. 8
& N. Dec. 912, 918 n. 4 (A

. G

. 2006) )

. 9
Here, substantial evidence supports the agency’s denial 10
of CAT relief. In arguing otherwise, Carrasco

- Canales 11

references evidence “ that the Acosta family seized [his] 12
land, slaughtered and poisoned his father

- in

- law ’ s cattle, 13
looted his home, and attempte d to covertly locate him through 14

Facebook ,” along with another gang’s extortion of his 15
brother, as showing that he likely will face torture if 16
returned to Honduras. While terribly unfortunate, these acts 17

do not amount to torture

. See 8 C.F.R. § 1 208.18(a)(2)

. 18

Moreover, Carrasco

- Canales did not present evidence that he 19
was forced to pay the Acostas or anybody else while he lived 20
in Honduras, and he did not allege that his brother who was 218 extorted was tortured. Carrasco

- Canales also testified that 1
the Honduran police were untrustworthy and did not act when 2
he reported that a possible Acosta associate pointed a gun at 3

him. However, his country conditions evidence reflects both 4
severe crime and corruption and government efforts to 5
ameliorate those p roblems. Given the absence of past torture 6
(of him or his family members) and absence of clear evidence 7
that the authorities would acquiesce to his torture, the 8
agency did not err in concluding that he had not shown he 9
would more likely than not be tortur ed with the acquiescence 10

of Honduran authorities. See Savchuck , 518 F.3d at 123. 11
For the foregoing reasons, the petition for review is 12

DENIED

. All pending motions and applications are DENIED and 13

stays VACATED. 14

FOR THE COURT: 15 Catherine O ’ Hagan Wolfe , 16 Clerk of Court 17