22-6157

Gonzalez v. Garland

BIA

Straus, IJ

A208 484 627

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 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 the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 2nd day of April, two thousand twentyfour. 

PRESENT: 

JOSEPH F. BIANCO,

STEVEN J. MENASHI,

SARAH A. L. MERRIAM,

Circuit Judges. 

_____________________________________ 

JOSE M. GONZALEZ, 

 Petitioner, 

v. 22-6157 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Jon E. Jessen, Law Offices of Jon E. Jessen, 

LLC, Stamford, CT. 
2 

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant

Attorney General; Paul Fiorino, Senior 

Litigation Counsel; Sharon M. Clay, Trial 

Attorney, Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

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

DECREED that the petition for review is DENIED. 

Petitioner Jose M. Gonzalez, a native and citizen of Guatemala, seeks review 

of a March 9, 2022, decision of the BIA affirming a February 21, 2019, decision of 

an Immigration Judge (“IJ”) denying his application for withholding of removal 

and relief under the Convention Against Torture (“CAT”). In re Jose M. Gonzalez, 

No. A 208 484 627 (B.I.A. Mar. 9, 2022), aff’g No. A 208 484 627 (Immig. Ct. Hartford 

Feb. 21, 2019). We assume the parties’ familiarity with the underlying facts and 

procedural history. 

We have reviewed the IJ’s decision as modified by the BIA, i.e. minus the 

credibility and corroboration findings that the BIA did not reach. See Xue Hong 

Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). “[T]he administrative 

findings of fact are conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “Accordingly, 
3 

we review the agency’s decision for substantial evidence and must defer to the 

factfinder’s findings based on such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Singh v. Garland, 11 F.4th 106, 113 

(2d Cir. 2021) (internal quotation marks omitted). We review questions of law 

and the application of law to fact de novo. See Yanqin Weng v. Holder, 562 F.3d 

510, 513 (2d Cir. 2009). 

Gonzalez alleged he was threatened, kidnapped, and attacked for dating the 

ex-girlfriend of a gang member and he claimed that this harm was on account of 

his membership in the particular social group of “well-known and famous 

individuals targeted by gangs for personal revenge” because he was a wrestler 

who medaled in international competitions. Petitioner’s Br. 23. 

I. Withholding of Removal 

An applicant for withholding of removal has the burden to establish past 

persecution or “a clear probability of future persecution,” Jian Liang v. Garland, 10 

F.4th 106, 112 (2d Cir. 2021) (quoting Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d 

Cir. 2018)); see also 8 C.F.R. § 1208.16(b), and that “race, religion, nationality, 

membership in a particular social group, or political opinion” is “one central 

reason” for that persecution, 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R. 
4 

§ 1208.16(b); Quituizaca v. Garland, 52 F.4th 103, 114 (2d Cir. 2022) (upholding BIA’s 

application of asylum’s “one central reason” standard to withholding of removal). 

“To succeed on a particular social group claim, the applicant must establish both 

that the group itself was cognizable, and that the alleged persecutors targeted the 

applicant on account of h[is] membership in that group.” Paloka v. Holder, 762 

F.3d 191, 195 (2d Cir. 2014) (internal quotation marks and citation omitted). 

Gonzalez does not challenge the agency’s determination that he did not 

establish that his membership in his proposed social group was “one central 

reason” why gang members kidnapped and beat him. Accordingly, he has 

abandoned review of this dispositive nexus determination. See Debique v. 

Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not 

adequately presented in an appellant’s brief, and an appellant’s failure to make 

legal or factual arguments constitutes abandonment.”) (internal quotation marks 

omitted). 

Even if not abandoned, Gonzalez failed to establish that gang members beat 

and kidnapped him on account of his membership in his particular social group. 

He had the burden of providing “some evidence [], direct or circumstantial” that 

he was attacked because of his group membership. INS v. Elias-Zacarias, 502 U.S. 
5 

478, 483 (1992); see Paloka, 762 F.3d at 196–97 (“Whether the requisite nexus exists 

depends on the views and motives of the persecutor.”) (internal quotation marks 

omitted). To the contrary, Gonzalez testified that the “main reason” gang

members targeted him was because he was dating the ex-girlfriend of a gang 

member, a motivation based on a personal dispute, not on account of his status as 

a well-known wrestler. Certified Admin. R. 88. 

II. CAT Relief 

To be eligible for CAT relief, an applicant has the burden to show that he 

will “more likely than not” be tortured by or with the acquiescence of government 

officials. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). “In assessing whether it is 

more likely than not that an applicant would be tortured . . . all evidence relevant 

to the possibility of future torture shall be considered, including . . . [e]vidence of 

past torture inflicted upon the applicant,” ability to relocate within the country, 

“[e]vidence of gross, flagrant or mass violations of human rights within the 

country of removal,” and “[o]ther relevant information regarding conditions in 

the country of removal.” Id. § 1208.16(c)(3). 

The agency reasonably concluded that Gonzalez did not meet his burden to 

establish likely torture or that the government would acquiescence to his torture. 
6 

As the agency concluded, 12 years had passed since the incident and Gonzalez had 

no evidence that the gang member behind his attack remained interested in 

harming him. Further, because the “the primary perpetrator of likely harm is a 

gang, the relevant state-action question . . . is whether any public official, or any 

other person, including low-level local police officers, when acting under color of 

law, will participate or acquiesce in harm that the gang is likely to inflict.” GarciaAranda v. Garland, 53 F.4th 752, 761 (2d Cir. 2022). Gonzalez did not allege that he 

feared any public officials, he did not report any harm or threats to the police, and 

he did not know if his girlfriend did because he had no contact with her following 

the assault. Thus, his assertion that the police would not act if he reported gang 

violence is speculative. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 

2005) (“In the absence of solid support in the record . . . [an applicant’s] fear is 

speculative at best.”). Absent “particularized evidence” that the authorities will 

acquiesce to his torture, his general country conditions evidence of human rights 

violations in Guatemala is insufficient to establish government acquiescence. Mu 

Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 160 (2d Cir. 2005); see also QuintanillaMejia v. Garland, 3 F.4th 569, 592 (2d Cir. 2021) (holding that where “the agency’s 

conclusion finds support in record evidence, [an applicant] cannot secure CAT 
7 

relief by pointing to conflicting evidence that might support—but not compel—a 

different conclusion”). 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court