19

- 2 136 Puma

- Niola v. Garland BIA Conroy , IJ A 205 921 455 

### 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 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 a**  **t the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **1 t**  **h da**  **y of M**  **a r**  **c h**  **, two thousand twenty** 
**- t**  **w o** 
**.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER ,**  7 **MICHAEL H. PARK ,**  8 **WILLIAM J. NARDINI ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **ANTHONY ALBERTO PUMA**
**- NIOLA**  13 **Petitioner ,**  14 15
**v. 19** 

**- 21**  **36** 16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Michael Borja , Esq., Borja Law 23 Firm , P.C., Jackson Heights , NY

. 24 25 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 26 General ; Shelley R. Goad , 27 Assistant Director ; J ennifer P. 282 Levings , Senior Litigation 1 Counsel , Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 D C. 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 petitio n for review 8

is DENIED in part and DISMISSED in part

. 9

Petitioner Anthony Alberto Puma

- Niola , a native and 10

citizen of Ecuador , seek s review of a June 18 , 201 9 decision 11

of the BIA affirming a January 26, 2018 decision of an 12
Immigration Judge (“IJ”) denying Puma

- Niola’s application for 13
asylum, withholding of removal, and protection under the 14
Convention Against Torture (“CAT”)

. In re Anthony Alberto 15

Puma

- Niola , No. A 20 5 921 455 (B.I.A. Dec . June 18, 2019 ), 16
aff’g No. A 20 5 921 455 (Immig. Ct. N.Y. C. Jan. 26, 2018 ). We 17
assume the parties’ familiarity with the underlying facts and 18
procedural history. 19

We review both the BIA ’s and IJ’s decisions

. Wangchuck 20
v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). 21
The applicable standards of review are well established. See 22

8 U.S.C. § 1252(b )(4) (B) ; Yanqin Weng v. Holder , 562 F.3d 23
510, 513 (2d Cir. 2009) (reviewing factual findings for 243 substantial evidence and questions of law a nd application of 1

law to facts de novo). 2

W e deny the petition as to asylum and withholding of 3

removal. An applicant must establish past persecution or a 4
fear of future persecution and that “race, religion, 5
nationality, membership in a particular social group, or 6
political opinion was or will be at least one central reason 7
for persecuting the applicant.” 8 U. S.C. § 1158(b)(1)(B)(i) ; 8

see also id. § 1231(b)(3)(A) ; Matter of C

- T

- L

- , 25 I. & N. 9
Dec. 341, 348 (B.I.A. 2010) (“one central reason” standard 10
applies to applications for withholding of removal). Puma

11
Niola’s only exhausted particular social group is “you ng men 12
who can be recruited into gangs.” See Lin Zhong v. U.S. 13
Dep’t of Justice , 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007) 14

( limiting review to “ those issues that formed the basis for 15
[the BIA’s] decision”); Matter of A

- B

- , 27 I. & N. Dec. 316, 16

344 (A.G. 2018) ( requiring “exact delineation” of particular 17
social group before IJ )

. To constitute a particular social 18
group, a group must be “(1) compose d of members who share a 19
common immutable characteristic, (2) defined with 20
particularity, and (3) socially distinct within the society 214 in question.” Matter of M

- E

- V

- G

- , 26 I. & N. Dec. 227, 237 1
(B.I.A. 2014); see also Ucelo

- Gomez v. Mukasey , 509 F.3d 70, 2

72

– 74 (2d Cir. 2007). 3

Puma

- Niola’s group is not cognizable , and substantial 4
evidence supports the agency’s conclusion that he did not 5
show a nexus between the harm feared and a protected ground

. 6

Pum a - Niola did not provide country conditions evidence as 7
required to show that Ecuadorian society perceives his 8
proposed group as distinct

. S ee Matter of M

- E

- V

- G

- , 26 I. & 9

N. Dec

. at 242 (“ [A] group’s recognition . . . is determined 10
by the perception of the society in question, rather than by 11
the perception of the persecutor

. ” ) ; Paloka v. Holder , 762 12
F.3d 191, 196 (2d Cir. 2014) (“[A] persecutor’s perception 13
alone is not enough to establish a c ognizable social group.”). 14

A bsent some additional factor, a gang’s actions in recruiting 15
members to increase its influence is not persecution: “When 16
the harm visited upon members of a group is attributable to 17
the incentives presented to ordinary criminals rather than to 18
persecution, the scales are tipped away from considering 19
those people a ‘particular social group.’” Ucelo

- Gomez , 509 20

F.3d at 73. 215 Relatedly, an applicant must have “ some evidence” of his 1
persecutors’ motive, “direct or circumstantial.” IN S v. 2

Elias

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

- Niola did not 3
allege any motivation other than increasing influence and 4
recruiting people to sell drugs. Accordingly, he presented 5
no evidence that the gang targeted him because he possessed 6

a “belief o r characteristic” that the gang sought to overcome. 7
Kyaw Zwar Tun v. INS , 445 F.3d 554, 565 (2d Cir. 2006) 8
(identifying elements of well

- founded fear); see also Melgar 9

de Torres v. Reno , 191 F.3d 307, 313

– 14 (2d Cir. 1999) 10
(“general crime conditions” and “random violence” cannot 11
support a claim to asylum)

. 12
We dismiss the petition as to Puma

- Niola’s CAT claim 13
because he did not challenge the IJ’s denial of this relief 14

before the BIA. See Karaj v. Gonzales , 462 F.3d 113, 119 (2d 15

Cir. 2006 ). 16
For the foregoing reasons, the petition for review is 17

DENIED in part as to asylum and withholding of removal and 18

DISMISSED in remaining part as to relief under the CAT

. 19

FOR THE COURT: 20 Catherine O ’ Hagan Wolfe , 21 Clerk of Court 22