20

- 3828 Cruz Ventura v. Garland
BIA Lurye , IJ A 206 013 523 **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 APP ENDIX 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** 

### 1 **the Second Circuit, held at t**  **he Thurgood Marshall United States** 

### 2 **Courthouse, 40 Foley Square, in the City of New York, on the**  

### 3 **2 4**  **t h**  **da y of**  **A p**  **r i**  **l , two thousand**  **twenty**

**- t**  **hree**

**.** 

### 4 5 **PRESENT:** 

### 6 **DENNIS JACOBS ,**  

### 7 **GUIDO CALABRESI ,**  

### 8 **EUNICE C. LEE ,**  

### 9 **Circuit Judges.** 

### 10

**_____________________________________** 

### 11 12 **RUDY ORLANDO CRUZ VENTURA ,**  

### 13 **Petitioner ,**  

### 14 15

**v. 20** 

**- 3828**  

### 16 **NAC** 

### 17 **MERRICK B. GARLAND ,**  **UNITED STATES** 

### 18 **ATTORNEY GENERAL,** 

### 19 **Respondent**

**.** 

### 20

**_____________________________________** 

### 21 22 23 **FOR PETITIONER :**  Michael Borja , Borja Law Firm, P.C. , 

### 24 Jackson Heights, NY. 

### 25 26 **FOR RESPONDENT:** Brian M. Boynton , Acting Assistant 

### 27 Attorney General ; Walter Bocchini , 

### 28
Susan Bennett Green , Senior 

### 29 Litigation Counsel , Office of 

### 30 Immigration Litigation, United States 

### 31 Department of Justice, Washington, 

### 32
D C. 

### 332 

### 1

UPON DUE CONSIDERATION of this petition for review of a Board 

### 2

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

### 3

ADJUDGED, AND DECREED that the petitio n for review is DENIED

. 

### 4

Rudy Orlando Cruz Ventura , a native and citizen of Guatemala , 

### 5

seeks review of a n October 9, 2020 decision of the BIA affirming 

### 6

a December 12, 2017 decision of an Immigration Judge (“IJ”) denying 

### 7

his application for withholding of removal

. 1 In re Rudy Orlando 

### 8

Cruz Ventura , No. A 206 013 523 (B.I.A. Oct. 9, 2020 ), aff’g No. 

### 9

A 206 013 523 ( Immig r . Ct. N.Y. City Dec. 12, 2017 ). We assume 

### 10

the parties’ familiarity with the underlying facts and procedural 

### 11

history. 

### 12

“ When the BIA briefly affirms the decision of an IJ and adopts 

### 13

the IJ ’ s reasoning in doing so, we review the IJ ’ s and the BIA ’ s 

### 14

decisions together.” Wangchuck v. Dep ’ t of Homeland Sec. , Immigr. 

### 15

& Customs Enf ’ t , 448 F.3d 524, 528 (2d Cir. 2006 ) (internal 

### 16

quotation marks removed and alterations adopted). We review 

### 17

findings of fact for substantial evidence. See Edimo

- Doualla v. 

### 18

Gonzales , 464 F.3d 276, 282 (2d Cir. 2006). Under the substantial 

### 19

evidence standard, “a finding will stand if it is supported by 

### 20

reasonable, substantial, and probative e vidence in the record when 

### 21

1 Cruz Ventura did not seek asylum , and he does not challenge the denial of his claim under the Convention Against Torture.3 considered as a whole.” Secaida

- Rosales v. I.N.S. , 331 F.3d 297, 

### 1

307 (2d Cir. 2003) (internal quotation marks omitted). 

### 2

Here, s ubstantial evidence supports the agency’s conclusion 

### 3

that Cruz Ventura failed to establish that gang members persecuted 

### 4

him because of his religion. Cruz Ventura had the burden to 

### 5

establish before the IJ that his religion was “at least one central 

### 6

reason” for the gang members ’ actions

. Quituizaca v. Garland , 52 

### 7

F.4th 103, 1 10 (2d Cir. 2022)

. Although there may be “more than 

### 8

one motive for mistreatment,” Acharya v. Holder , 761 F.3d 289, 297 

### 9

(2d Cir. 2014), “the protected ground cannot play a minor role in 

### 10

the alien’s past mistreatment or fears of future mistreatment. 

### 11

That is , it cannot be incidental, tangential, superficial, or 

### 12

subordinate to another reason for harm,” In re J

- B

- N

- & S

- M

- , 24 I. 

### 13

& N. Dec. 208, 214 (B.I.A. 2007). 

### 14

Cruz Ventura testified that on three occasions on his way 

### 15

home from work in 1998, gang members ro bbed him, tried to recruit 

### 16

him, and assaulted him. He believed they targeted him because, 

### 17

as an Evangelical Christian, he would not retaliate. However, he 

### 18

also conceded that gang members would attack anyone they believed 

### 19

would not retaliate regardless of religion , and he presented no 

### 20

evidence that the gang members who attacked him were motivated by 

### 21

his religion. See INS v. Elias

- Zacarias , 502 U.S. 478, 483 (1992) 

### 22

(requiring “some evidence of [the persecutor’s motive], direct or 

### 234 circumstantial ”); J ian Hui Shao v. Mukasey , 546 F.3d 138, 157

– 58 

### 1

(2d Cir. 2008) (“[W]hen a petitioner bears the burden of proof, 

### 2

his failure to adduce evidence can itself constitute the 

### 3

substantial evidence necessary to support the agency’s challenged 

### 4

decision.” ( internal quotat ion marks omitted) ). At most, Cruz 

### 5

Ventura speculated that gang members believed he was an Evangelical 

### 6

Christian based on his clothing. See Jian Xing Huang v. INS , 421 

### 7

F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in 

### 8

the record . . . [a] fear is speculative at best.”). Moreover, 

### 9

Cruz Ventura admitted that the gang members robbed him, attempted 

### 10

to recruit him, and would target non

- religious people if they 

### 11

believed that they , too , would not retaliate. Thus, the record 

### 12

demonstrates that Cr uz Ventura’s religion was , at most , incidental 

### 13

to the gang members’ underlying motives: money and recruitment. 

### 14

See Garcia

- Aranda v. Garland , 53 F. 4th 752, 758 (2d Cir. 2022) 

### 15

(finding that family membership was not a central reason for 

### 16

persecution despite gang members perceiving applicant as wealthy 

### 17

based in part on her inheritance from her family). 

### 18

19

205 For the foregoing reasons, the petition for review is 

### 1

DENIED

. All pending motions and applications are DENIED and stays 

### 2

VACATED. 

### 3

FOR THE COURT: 

### 4 Catherine O ’ Hagan Wolfe , 

### 5 Clerk of Court 

### 6