19-2136

Puma-Niola v. Garland 

BIA

Conroy, IJ

A205 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 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 11th 4 day of March, two thousand twenty-two.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 MICHAEL H. PARK,

9 WILLIAM J. NARDINI,

10 Circuit Judges.

11 _____________________________________

12

13 ANTHONY ALBERTO PUMA-NIOLA

14 Petitioner,

15

16 v. 19-2136

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Michael Borja, Esq., Borja Law 

24 Firm, P.C., Jackson Heights, NY.

25

26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

27 General; Shelley R. Goad,

28 Assistant Director; Jennifer P. 
2

1 Levings, Senior Litigation 

2 Counsel, Office of Immigration 

3 Litigation, United States 

4 Department of Justice, Washington, 

5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a 

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

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED in part and DISMISSED in part.

10 Petitioner Anthony Alberto Puma-Niola, a native and 

11 citizen of Ecuador, seeks review of a June 18, 2019 decision 

12 of the BIA affirming a January 26, 2018 decision of an 

13 Immigration Judge (“IJ”) denying Puma-Niola’s application for 

14 asylum, withholding of removal, and protection under the 

15 Convention Against Torture (“CAT”). In re Anthony Alberto 

16 Puma-Niola, No. A 205 921 455 (B.I.A. Dec. June 18, 2019), 

17 aff’g No. A 205 921 455 (Immig. Ct. N.Y.C. Jan. 26, 2018). We 

18 assume the parties’ familiarity with the underlying facts and 

19 procedural history.

20 We review both the BIA’s and IJ’s decisions. Wangchuck 

21 v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). 

22 The applicable standards of review are well established. See

23 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 

24 510, 513 (2d Cir. 2009) (reviewing factual findings for 
3

1 substantial evidence and questions of law and application of 

2 law to facts de novo). 

3 We deny the petition as to asylum and withholding of 

4 removal. An applicant must establish past persecution or a 

5 fear of future persecution and that “race, religion, 

6 nationality, membership in a particular social group, or 

7 political opinion was or will be at least one central reason 

8 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); 

9 see also id. § 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N. 

10 Dec. 341, 348 (B.I.A. 2010) (“one central reason” standard 

11 applies to applications for withholding of removal). Puma12 Niola’s only exhausted particular social group is “young men 

13 who can be recruited into gangs.” See Lin Zhong v. U.S. 

14 Dep’t of Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007) 

15 (limiting review to “those issues that formed the basis for 

16 [the BIA’s] decision”); Matter of A-B-, 27 I. & N. Dec. 316, 

17 344 (A.G. 2018) (requiring “exact delineation” of particular 

18 social group before IJ). To constitute a particular social 

19 group, a group must be “(1) composed of members who share a 

20 common immutable characteristic, (2) defined with 

21 particularity, and (3) socially distinct within the society 
4

1 in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 

2 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 

3 72–74 (2d Cir. 2007). 

4 Puma-Niola’s group is not cognizable, and substantial 

5 evidence supports the agency’s conclusion that he did not 

6 show a nexus between the harm feared and a protected ground. 

7 Puma-Niola did not provide country conditions evidence as 

8 required to show that Ecuadorian society perceives his

9 proposed group as distinct. See Matter of M-E-V-G-, 26 I. & 

10 N. Dec. at 242 (“[A] group’s recognition . . . is determined 

11 by the perception of the society in question, rather than by 

12 the perception of the persecutor.”); Paloka v. Holder, 762 

13 F.3d 191, 196 (2d Cir. 2014) (“[A] persecutor’s perception 

14 alone is not enough to establish a cognizable social group.”). 

15 Absent some additional factor, a gang’s actions in recruiting 

16 members to increase its influence is not persecution: “When 

17 the harm visited upon members of a group is attributable to 

18 the incentives presented to ordinary criminals rather than to 

19 persecution, the scales are tipped away from considering 

20 those people a ‘particular social group.’” Ucelo-Gomez, 509 

21 F.3d at 73.
5

1 Relatedly, an applicant must have “some evidence” of his 

2 persecutors’ motive, “direct or circumstantial.” INS v. 

3 Elias-Zacarias, 502 U.S. 478, 483 (1992). Puma-Niola did not 

4 allege any motivation other than increasing influence and 

5 recruiting people to sell drugs. Accordingly, he presented 

6 no evidence that the gang targeted him because he possessed 

7 a “belief or characteristic” that the gang sought to overcome. 

8 Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir. 2006) 

9 (identifying elements of well-founded fear); see also Melgar 

10 de Torres v. Reno, 191 F.3d 307, 313–14 (2d Cir. 1999) 

11 (“general crime conditions” and “random violence” cannot 

12 support a claim to asylum).

13 We dismiss the petition as to Puma-Niola’s CAT claim 

14 because he did not challenge the IJ’s denial of this relief 

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

16 Cir. 2006). 

17 For the foregoing reasons, the petition for review is 

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

19 DISMISSED in remaining part as to relief under the CAT.

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe,

22 Clerk of Court