18-3592 Arias-Avila v. Garland BIA Lurye, IJ A208 752 791 

### 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 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 18 th**  **day of May, two thousand twenty-one.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **RAYMOND J. LOHIER, JR.,** 8 **STEVEN J. MENASHI,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **WENDY CAROLINA ARIAS-AVILA,** 13 Petitioner **,** 14 15 **v. 18-3592** 16 **NAC** 17 **MERRICK B. GARLAND, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent

**.** 20

**____________________________________** 21 22 **FOR PETITIONER:** Daniel R. Spensieri, Law Offices 23 of Daniel Spensieri PC, White 24 Plains, NY 25 26 **FOR RESPONDENT:** Brian M. Boynton, Acting Assistant 27 Attorney General; John S. Hogan, 282 Assistant Director; Mona Maria 1 Yousif, Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8

is DENIED. 9 Petitioner Wendy Carolina Arias-Avila, a native and 10 citizen of Honduras, seeks review of a November 5, 2018 11 decision of the BIA affirming a November 14, 2017 decision of 12 an Immigration Judge (“IJ”) denying her application for 13 asylum, withholding of removal, and protection under the 14 Convention Against Torture (“CAT”). In re Wendy Carolina 15 Arias-Avila, No. A 208 752 791 (B.I.A. Nov. 5, 2018), aff’g 16

No. A 208 752 791 (Immig. Ct. N.Y.C. Nov. 14, 2017). We assume 17 the parties’ familiarity with the underlying facts and 18 procedural history. 19

We review both the BIA’s and IJ’s decisions “for the sake 20 of completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 21 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 22

review are well established. See Yanqin Weng v. Holder , 562 23 F.3d 510, 513 (2d Cir. 2009) (reviewing factual findings for 243 substantial evidence and questions of law and application of 1 law to facts de novo); Edimo-Doualla v. Gonzales , 464 F.3d 2 276, 282–83 (2d Cir. 2006) (applying substantial evidence 3 standard to nexus determination); Nasrallah v. Barr , 140 S. 4 Ct. 1683, 1692 (2020) (applying substantial evidence standard 5 to review of CAT claim). “[T]he administrative findings of 6 fact are conclusive unless any reasonable adjudicator would 7 be compelled to conclude to the contrary.” 8 U.S.C. 8 § 1252(b)(4)(B). 9 Arias-Avila first challenges the agency’s denial of her 10 application for asylum and withholding of removal. To obtain 11 asylum or withholding of removal, an applicant must establish 12 past persecution or a fear of future persecution on account 13 of a protected ground. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 14 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b)(1), (2). 15 A protected ground must be “at least one central reason” for 16 the claimed persecution, and the applicant must provide 17 direct or circumstantial evidence of the persecutor’s 18 motives. 8 U.S.C. § 1158(b)(1)(B)(i) (asylum); see also id. 19 § 1231(b)(3)(A) (withholding); Matter of C-T-L- , 25 I. & N. 20 Dec. 341, 346–48 (B.I.A. 2010) (holding that the “one central 21 reason” standard also applies to withholding of removal); INS 224 v. Elias-Zacarias , 502 U.S. 478, 483 (1992) (requiring “ some 1 evidence” of motive, “direct or circumstantial”). Arias2 Avila alleged that gang members targeted her on account of 3 her membership in a particular social group, consisting of 4 her deceased partner and his family members. She testified 5 that her partner was killed after refusing gang extortion 6 demands and that she subsequently r eceived similar threats. 7 When a social group is based on family ties and “animus 8 against the family per se is not implicated, the question 9 becomes what motive or motives cause the persecutor to seek 10 to harm members of an individual’s family.” Matter of L-E11

A- , 27 I. & N. Dec. 40, 45 (B.I.A. 2017), overruled in part 12 on other grounds by Matter of L-E-A- , 27 I. & N. Dec. 581, 13 596–97 (A.G. 2019). A “nexus [between the alleged harm and 14 a protected ground] is not established simply because a 15 particular social group of family members exists and the 16 family members experience harm.” Id. “The protected trait, 17 in this case membership in the . . . family, cannot play a 18 minor role—that is, it cannot be incidental [or] 19 tangential . . . to another reason for harm.” Id. at 44 20 (internal quotation marks omitted). Rather, there must be 21 some indication “that the persecutors had . . . animus against 225 the family or the [applicant] based on their biological ties, 1 historical status, or other features unique to that family 2

unit.” Id. at 47. 3 Here, substantial evidence supports the agency’s 4 finding that Arias-Avila did not demonstrate that the threats 5 she received were on account of her family ties. The 6 individuals threatening her demanded money, her partner was 7 known to lend money, the demands for money resumed after her 8 home was robbed, and no other members of her partner’s family 9 received threats. Indeed, Arias-Avila testified that she did 10 not know why her partner was threatened or murdered in 2013, 11 and she did not articulate any reason that she or her partner 12 were targeted other than that they had good jobs. 13 On this record, the agency did not err in determining 14 that Arias-Avila was targeted for extortion and threatened 15 based on her perceived ability to pay rather than her family 16

ties. See id. at 45–47; Ucelo-Gomez v. Mukasey , 509 F.3d 70, 17 74 (2d Cir. 2007) (“[H]arm motivated purely by wealth is not 18 persecution.”). Accordingly, because Arias-Avila failed to 19

demonstrate a nexus between the harm she suffered and fears 20 and a protected ground, the agency did not err in denying 21 asylum and withholding of removal. See 8 U.S.C. 226 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). 1 Arias-Avila also challenges the agency’s denial of her 2 application for CAT relief. Unlike asylum and withholding 3 of removal, CAT relief does not require a nexus to any 4 protected ground. See 8 C.F.R. § 1208.16(c)(2). However, 5 an applicant is required to show that she would “more likely 6 than not” be tortured by or with the acquiescence of 7 government officials. Id. §§ 1208.16(c)(2), 1208.18(a)(1). 8 Substantial evidence supports the agency’s conclusion that 9 Arias-Avila did not show that she would “more likely than 10

not” be tortured. 11 Arias-Avila was threatened over the phone and with notes 12 intermittently between 2013 and 2015. But she was not 13 physically harmed or confronted in person, and she had no 14 evidence that anyone was pursuing her or was threatening 15 similarly situated family members. Absent evidence that gang 16 members will continue to seek her out to demand money or to 17 torture her if she does not comply, she cannot show that 18 torture is more likely than not. See Savchuck v. Mukasey , 19 518 F.3d 119, 123 (2d Cir. 2008) (“An alien will never be 20 able to show that he faces a more likely than not chance of 21

torture if one link in the chain cannot be shown to be more 227 likely than not to occur. It is the likelihood of all 1 necessary events coming together that must more likely than 2 not lead to torture, and a chain of events cannot be more 3 likely than its least likely link.” (quoting In re J-F-F- , 23 4 I. & N. Dec. 912, 918 n.4 (A.G. 2006)); Mu Xiang Lin v. U.S. 5 Dep’t of Justice , 432 F.3d 156, 160 (2d Cir. 2005) (rejecting 6 CAT claim where petitioner relied on country reports of some 7 torture in prisons but did not provide “particularized 8 evidence”); Jian Xing Huang v. INS , 421 F.3d 125, 129 (2d 9 Cir. 2005) (“In the absence of solid support in the 10 record . . . , [applicant’s] fear is speculative at best.”). 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