18-2528

Guzman Alejo v. Garland

BIA

Kolbe, IJ

A098 669 637

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.

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 4th 4 day of May, two thousand twenty-one.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 Chief Judge,

9 RICHARD C. WESLEY,

10 WILLIAM J. NARDINI,

11 Circuit Judges.

12 _____________________________________

13

14 MAURILIO GUZMAN ALEJO, AKA

15 MAURILLIO GUZMAN ALEJO,

16 Petitioner,

17

18 v. 18-2528

19 NAC

20 MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,1 21

22 Respondent.

23 _____________________________________

24

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Attorney General Merrick B. Garland is automatically substituted 

as Respondent.
2

1 FOR PETITIONER: Samir Deger-Sen, Esq., Latham & 

2 Watkins LLP, Washington, DC.

3

4 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 

5 Attorney General; Jessica E. 

6 Burns, Senior Litigation Counsel; 

7 Rosanne M. Perry, Trial Attorney, 

8 Office of Immigration Litigation,

9 Civil Division, United States 

10 Department of Justice, Washington, 

11 DC.

12 UPON DUE CONSIDERATION of this petition for review of a 

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

14 ORDERED, ADJUDGED, AND DECREED that the petition is DENIED.

15 Petitioner Maurilio Guzman Alejo, a native and citizen 

16 of Mexico, seeks review of an August 23, 2018, BIA decision

17 affirming a March 2, 2018, decision of an Immigration Judge 

18 (“IJ”) denying Guzman Alejo’s application for withholding of 

19 removal and protection under the Convention Against Torture 

20 (“CAT”). In re Maurilio Guzman Alejo, No. A 098 669 637

21 (B.I.A. Aug. 23, 2018), aff’g No. A 098 669 637 (Immig. Ct.

22 N.Y. City Mar. 2, 2018). We assume the parties’ familiarity 

23 with the underlying facts and procedural history.

24 We have reviewed the IJ’s decision as supplemented by 

25 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 

26 Cir. 2005). The applicable standards of review are well 

27 established. See 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 
3

1 741 F.3d 324, 332 (2d Cir. 2013) (reviewing legal questions 

2 de novo and factual findings for substantial evidence). 

3 Whether someone has been persecuted on account of his 

4 membership in a particular social group and will likely be 

5 tortured in the future are factual findings that we review 

6 under the substantial evidence standard. See Paloka v. 

7 Holder, 762 F.3d 191, 199 n.4 (2d Cir. 2014) (nexus); Hui Lin 

8 Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012) (“A 

9 determination of what will occur in the future and the degree 

10 of likelihood of the occurrence has been regularly regarded 

11 as fact-finding . . . .”).

12 I. Withholding of Removal

13 The agency determined that Guzman Alejo was a member of 

14 cognizable social groups and did not address whether his past 

15 harm constituted persecution or whether he was likely to be 

16 persecuted in the future. Accordingly, the only issue before 

17 us is whether the agency erred in concluding that Guzman Alejo 

18 had not shown that his group membership was or would be a 

19 central reason that he was harmed by narco-traffickers. We 

20 conclude that substantial evidence supports the agency’s 

21 determination.
4

1 An applicant for withholding of removal “must establish 

2 that race, religion, nationality, membership in a particular 

3 social group, or political opinion was or will be at least 

4 one central reason for persecuting the applicant.” 8 U.S.C. 

5 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Matter of C-T6 L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010) (applying “one 

7 central reason” standard to withholding). Under this 

8 standard, there may be “more than one motive for 

9 mistreatment.” Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 

10 2014) (internal quotation marks omitted). But “the protected 

11 ground cannot play a minor role in the alien’s past 

12 mistreatment or fears of future mistreatment. That is, it 

13 cannot be incidental, tangential, superficial, or subordinate 

14 to another reason for harm.” In re J-B-N- and S-M-, 24 I. & 

15 N. Dec. 208, 214 (B.I.A. 2007). And the “harm or suffering”

16 must be inflicted “to punish him for possessing a belief or 

17 characteristic a persecutor sought to overcome.” Matter of 

18 Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985). Harm 

19 occurring because of “general crime conditions” generally is 

20 not harm on account of a protected ground. Melgar de Torres 

21 v. Reno, 191 F.3d 307, 314 (2d Cir. 1999).
5

1 Guzman Alejo argued that narco-traffickers harmed him

2 “because of his status as a large farm owner and his 

3 membership in his land-owning family in Buenavista del Sur, 

4 Guerrero, Mexico.” The agency did not err in concluding that 

5 Guzman Alejo failed to show that his membership in his social 

6 groups was “one central reason” why he was targeted. 

7 An applicant must demonstrate either “through direct or 

8 circumstantial evidence” that his persecutors targeted him on 

9 account of a protected ground. Yueqing Zhang v. Gonzales, 

10 426 F.3d 540, 545 (2d Cir. 2005); see also INS v. Elias11 Zacarias, 502 U.S. 478, 483 (1992) (“But since the statute 

12 makes [the persecutor’s] motive critical, [the petitioner] 

13 must provide some evidence of it, direct or circumstantial.”

14 (emphasis in original)). Guzman Alejo did not demonstrate 

15 that the narco-traffickers had a motivation other than 

16 expanding their criminal enterprise. See Elias-Zacarias, 502 

17 U.S. at 483 (emphasizing importance of motive of persecutor);

18 see also Paloka, 762 F.3d at 198 (emphasizing distinction 

19 between “individuals threatened by state-sponsored or state20 condoned criminality on account of their membership in a 

21 particular social group and individuals threatened only 
6

1 because they live in a country with pervasive criminality”). 

2 Guzman Alejo’s country conditions evidence reflects that drug 

3 trafficking-related violence is common in Mexico and impacts 

4 a large cross-section of the population. And while his 

5 evidence showed that he was an ideal target for the narco6 traffickers based on his family’s land and status in the 

7 community and that there was a pattern of targeting 

8 landowners, it also reflected pervasive violence in his home 

9 region of Mexico. The pervasiveness of the drug violence 

10 supports the agency’s conclusion that the gang targeted 

11 Guzman Alejo to expand its power, not to “punish him for 

12 possessing a belief or characteristic [it] sought to 

13 overcome,” Matter of Acosta, 19 I. & N. Dec. at 222.

14 II. CAT Protection

15 An applicant for protection under the CAT must “establish 

16 that it is more likely than not that he . . . would be tortured 

17 if removed to the proposed country of removal.” 8 C.F.R. 

18 § 1208.16(c)(2). An IJ considers “all evidence relevant to 

19 the possibility of future torture[,]” including evidence of 

20 past torture and “[e]vidence that the applicant could 

21 relocate to a part of the country of removal where he . . .
7

1 is not likely to be tortured.” Id. § 1208.16(c)(3)(i)–(ii). 

2 Substantial evidence supports the agency’s determination 

3 that Guzman Alejo did not establish a likelihood of torture. 

4 There is evidence of vast drug-related violence in Mexico, 

5 but Guzman Alejo’s claim of future torture is undermined by 

6 his family’s ability to relocate to avoid harm. See id.

7 § 1208.16(c)(3)(ii); Melgar de Torres, 191 F.3d at 313

8 (holding that objective fear is undermined where family 

9 members remain unharmed in petitioner’s native country); see 

10 also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 

11 (2d Cir. 2005) (upholding denial of CAT relief where 

12 petitioner offered no “particularized evidence” that she 

13 would be tortured in her country of removal). Guzman Alejo’s 

14 family, including his father who owned their land, relocated 

15 within Mexico and there was no evidence presented of harm to 

16 any family members following the events of 2006. 

17 Accordingly, we find no error in the agency’s conclusion that 

18 Guzman Alejo failed to show that he would “more likely than 

19 not” be tortured in Mexico. 8 C.F.R. § 1208.16(c)(2).

20 III. Due Process

21 Finally, Guzman Alejo argues that the IJ deprived him of 
8

1 a full hearing by not allowing his expert to testify 

2 telephonically. Guzman Alejo has not demonstrated the

3 prejudice required to establish a due process claim

4 violation.

5 “To establish a violation of due process, an alien must 

6 show that []he was denied a full and fair opportunity to 

7 present h[is] claims or that [he was] otherwise deprived . . 

8 . of fundamental fairness.” Burger v. Gonzales, 498 F.3d 

9 131, 134 (2d Cir. 2007) (internal quotation marks omitted). 

10 “Parties claiming denial of due process in immigration cases 

11 must, in order to prevail, allege some cognizable prejudice 

12 fairly attributable to the challenged process.” Garcia13 Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal 

14 quotation marks omitted). Guzman Alejo stated that the 

15 expert would have testified to the contents of his report and 

16 his testimony would have amplified the report. Guzman Alejo

17 did not allege that the expert would have provided new or

18 additional information. Accordingly, Guzman Alejo did not 

19 show prejudice because the agency considered the expert’s 

20 written report. Id.

21 For the foregoing reasons, the petition for review is 
9

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