18

- 2528 Guzman Alejo v. Garland BIA Kolbe , IJ A 098 669 637 

### 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 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 4**  **t h**  **d a**  **y of M**  **a y**  **, two thousand twenty** 
**- one** 
**.** 4 5 **PRESENT:** 6 **DEBRA ANN LIVINGSTON ,**  7 **C hief**  **Judge ,**  8 **RICHARD C. WESLEY ,**  9 **WILLIAM J. NARDINI ,**  10 **Circuit Judges.**  11

**_____________________________________** 12 13 **MAURILIO GUZMAN ALEJO, AKA** 14 **MAURILLIO GUZMAN ALEJO,** 15 **Petitioner ,**  16 17
**v. 18** 

**- 2528**  18 **NAC** 19 **MERRICK B. GARLAND , UNITED**  20 **STATES ATTORNEY GENERAL, 1**  21 **Respondent**

**.** 22

**_____________________________________** 23 24

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent.2 **FOR PETITIONER :**  Samir Deger

- Sen , Esq., Latham & 1 Watkins LLP, Washington, DC. 2 3 **FOR RESPONDENT:** Brian M. Boynton , Acting Assistant 4 Attorney General ; Jessica E. 5 Burns, Senior Litigation Counsel ; 6 Rosanne M. Perry , Trial Attorney, 7 Office of Immigration Litigation, 8 Civil Division, United States 9 Department of Justice, Washington, 10 D C. 11

UPON DUE CONSIDERATION of this petition for review of a 12
Board of Immigration Appeals (“BIA”) decision, it is hereby 13

O RDERED, ADJUDGED, AND DECREED that the petition is DENIED

. 14

Petitioner Maurilio Guzman Alejo , a native and citizen 15

of Mexico , seeks review of an August 23, 2018 , BIA decision 16
affirming a March 2, 2018 , decision of an Immigration Judge 17

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

removal and protection under the Convention Against Torture 19

(“CAT”)

. In re Maurilio Guzman Alejo , No. A 098 669 637 20

( B.I.A. Aug. 23, 2018 ), aff’g No. A 098 669 637 (Immig. Ct. 21
N.Y. City Mar. 2 , 2018 )

. We assume the parties’ familiarity 22
with the underlying facts and procedural history. 23

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

the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d 25
Cir. 2005). The applicable standards of review are well 26

established. See 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder , 273 741 F.3d 324, 332 (2d Cir. 2013) (reviewing legal questions 1
de novo and factual findings for substantial evidence). 2
Whether someone has been persecuted on account of his 3
membership in a particular social group and will likely be 4
tortured in the future are factual findings that we review 5

under the substantial evidence standard. See Paloka v. 6

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

H uang v. Holder , 677 F.3d 130, 134 (2d Cir. 2012) (“A 8
determination of what will occur in the future and the degree 9
of likelihood of the occurrence has been regularly regarded 10

as fact

- finding . . . .”). 11

**I. Withholding of Removal**  12

The agency determined that Guzman Alejo was a member of 13
cognizable social groups and did not address whether his past 14
harm constituted persecution or whether he was likely to be 15
persecuted in the future. Accordingly, the only issue before 16

us is whether the agency er red in concluding that Guzman Alejo 17

had not shown that h is group membership w as or would be a 18
central reason that he was harmed by narco

- traffickers

. We 19

conclude that substantial evidence supports the agency’s 20

determination

**.** 214 An applicant for withholding of removal “must establish 1
that race, religion, nationality, membership in a particular 2
social group, or political opinion was or will be at least 3
one central reason for persecuting the applicant.” 8 U.S.C. 4

§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Mat ter of C

- T

5

L

- , 25 I. & N. Dec. 341, 348 (B

. I

. A

. 2010) (applying “one 6
central reason” standard to withholding). Under this 7

standard, t here may be “more than one motive for 8

mistreatment.” Acharya v. Holder , 761 F.3d 289, 297 (2d Cir. 9
2014) (internal quotation marks omitted). But “the protected 10
ground cannot play a minor role in the alien’s past 11
mistreatment or fears of future mistreatment. That is, it 12
cannot be incidental, tangential, superficial, or subo rdinate 13

to another reason for harm.” In re J

- B

- N

- and S

- M

- , 24 I. & 14
N. Dec. 208, 214 (B

. I

. A

. 2007). And t he “ harm or suffering ” 15

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

characteristic a persecutor s ought to overcome. ” Matter of 17

Acosta , 19 I. & N. Dec. 211, 222 (B

. I

. A

. 1985). Harm 18
occurring because of “ general crime conditions ” generally is 19
not harm on account of a protected ground. Melgar de Torres 20

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

. 215 Guzman Alejo argued that narco - traffickers harmed him 1
“because of his status as a large farm owner and his 2
membership in his land

- owning family in Buenavista del Sur, 3
Guerrero, Mexico.” The agency did not err in concluding that 4
Guzman Alejo failed to show that his membership in his social 5
groups was “one central reason” why he was targeted. 6
An applicant must demonstrate either “through direct or 7
circumstantial evidence” that his persecutors targeted him on 8
account of a protected ground. Yueqing Zhang v. Gonzales , 9
426 F.3d 540, 545 (2d Cir. 2005); see also INS v. Elias

10

Zacarias , 502 U.S. 478, 483 (1992) (“But since the statute 11
makes [the persecutor’s] motive critical, [the petitioner] 12
must provide some evidence of it, direct or circumstantial.” 13
(emphasis in original) ). Guzman Alejo did not demonstrate 14

that the narco

- traffickers had a motivati on other than 15
expand ing t heir criminal enterprise. See Elias

- Zacarias , 502 16

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

see also Paloka , 762 F.3d at 198 (emphasizing distinction 18
between “individuals threatened by state

- sponsored or state

19
condoned criminality on account of their membership in a 20
particular social group and individuals threatened only 216 because they live in a country with perv asive criminality”). 1

G uzman Alejo’s country conditions evidence reflects that drug 2
trafficking

- related violence is common in Mexico and impacts 3
a large cross

- section of the population. And while his 4

evidence showed that he was an ideal target for the nar co 5

traffickers based on his family’s land and status in the 6
community and that there was a pattern of targeting 7

landowners, it also reflected pervasive violence in his home 8
region of Mexico. The pervasiveness of the drug violence 9
supports the agency’s con clusion that the gang targeted 10
Guzman Alejo to expand its power, not to “punish him for 11
possessing a belief or characteristic [it] sought to 12

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

**II. CAT Protection**  14
An applicant for protection under the CAT must “establish 15
that it is more likely than not that he . . . would be tortured 16
if removed to the proposed country of removal.” 8 C.F.R. 17

§ 1208.16(c)(2). An IJ considers “all evidence relevant to 18
the possibility of future torture[,]” including evidence of 19
past torture and “[e]vidence that the applicant could 20
relocate to a part of the country of removal where he

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

– (ii). 1
Substantial evidence supports th e agency’s determination 2
that Guzman Alejo did not establish a likelihood of torture. 3

T here is evidence of vast drug

- related violence in Mexico, 4

but Guzman Alejo’s claim of future torture is undermined by 5
his family’s ability to relocate to avoid harm. S ee id. 6

§ 1208.16(c)(3)(ii); Melgar de Torres , 191 F.3d at 313 7
(holding that objective fear is undermined where family 8
members remain unharmed in petitioner’s native country); see 9
also Mu Xiang Lin v. U.S. Dep’t of Justice , 432 F.3d 156, 160 10
(2d Cir. 2005) (upholding denial of CAT relief where 11
petitioner offered no “particularized evidence” that she 12
would be tortured in her country of removal). Guzman Alejo’s 13
family , including his father who owned their land, relocated 14

within Mexico and there was no evidenc e presented of harm to 15
any family members following the events of 2006. 16
Accordingly, we find no error in the agency’s conclusion that 17
Guzman Alejo failed to show that he would “more likely than 18
not” be tortured in Mexico. 8 C.F.R. § 1208.16(c)(2). 19

**III. Due Process**  20
Finally, Guzman Alejo argues that the IJ deprived him of 218 a full hearing by not allowing his expert to testify 1
telephonically. G uzman Alejo has not demonstrated the 2
prejudice required to establish a due process claim 3

violation

. 4

“ To establish a violation of due process, an alien must 5
show that []he was denied a full and fair opportunity to 6
present h[is] claims or that [he was] otherwise deprived . . 7

. of fundamental fairness.” Burger v. Gonzales , 498 F.3d 8
131, 134 (2d Cir. 2007) ( internal quotation marks omitted). 9
“Parties claiming denial of due process in immigration cases 10
must, in order to prevail, allege some cognizable prejudice 11
fairly attributable to the challenged process.” Garcia

12
Villeda v. Mukasey , 531 F.3d 141, 149 (2d C ir. 2008) (internal 13
quotation marks omitted). Guzman Alejo stated that the 14
expert would have testified to the contents of his report and 15
his testimony would have amplified the report. Guzman Alejo 16
did not allege that the expert would have provided new or 17
additional information. Accordingly, Gu zman Alejo did not 18
show prejudice because the agency considered the expert’s 19
written report. Id. 20
For the foregoing reasons, the petition for review is 219 DENIED. All pending motions and applications are DENIED and 1

s tays VACATED. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe , 4 Clerk of Court 5