19

- 3696 Rivas

- Aparicio v. Garland BIA Christensen , IJ

A 206 005 981 

### 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 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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 8 t h d a y of A u g u s t , two thousand twenty

3 t hree

. 4 5 PRESENT: 6 RAYMOND J. LOHIER, JR. , 7 EUNICE C. LEE , 8 SARAH A. L. MERRIAM , 9 Circuit Judges. 10

_____________________________________ 11 12 LUIS RENE DARWIN RIVAS

13 APARICIO , 14 Petitioner , 15 16

v. 19

- 3696 17 NAC 18 MERRICK B. GARLAND , UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent

. 21

_____________________________________ 222 FOR PETITIONER : Anne Pilsbury , Central American Legal 1 Assistance, Brooklyn , N Y 2 3 FOR RESPONDENT: Brooke Marie Maurer , Trial Attorney; Nancy 4 E. Friedman , Senior Litigation Counsel; Brian 5 Boynton , Principal Deputy Assistant Attorney 6 General , Office of Immigration Litigation, 7 United States Department of Justice, 8 Washington, D C 9 UPON DUE CONSIDERATION of this petition for review of a Board of 10
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 11
DECREED that the petitio n for review is DENIED

. 12

Petitioner Luis Rene Darwin Rivas

- Aparicio , a native and citizen of El 13

Salvador , seeks review of an October 23, 2019 decision of the BIA affirming a June 14

16, 2016 decision of an Immigration Judge (“IJ”) denying his application for 15
asylum and withholding of removal

. See In re Luis Rene Darwin Rivas

- Aparicio , 16

No. A 206 005 981 (B.I.A. Oct. 23, 2019 ), aff’g No. A 206 005 981 (Immig r . Ct. N.Y. 17
City June 16, 2016 ). We assume the parties’ familiarity with the underlying facts 18
and procedural history. 19

Under the circumstances, we have review ed the IJ’s decision as 20
supplemented and modified by the BIA, i.e., minus the findings that the BIA did 21

not adopt

. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005); Xue Hong 223 Yang v. U.S. Dep’t of Just

. , 426 F.3d 520, 522 (2d Cir. 2005). We review the agency’s 1
legal conclusions de nov o and its factual findings for substantial evidence. See 2
Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009)

. 3
To establish eligibility for asylum and withholding of removal, an applicant 4
“must establish that race, religion, nationality, membership in a particular social 5
group, or political opinion was or will be at least one central reason for persecuting 6
the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3) (A); Quituizaca v. 7

Garland , 52 F.4th 103, 10 7 (2d Cir. 2022)

. The BIA did not err in concluding that 8

Rivas

- Aparicio failed to establish that his proposed social group of individuals 9
who cooperate with police was cognizable or that he was or would be targe ted on 10
account of his political opinion. 11

A. Social Group 12
To establish eligibility for relief based on membership in a particular social 13
group, an applicant must show that (1) the proposed social group is cognizable 14
(i.e., its members share an immutable characteristic , the group is defined with 15
particularity, and the group is viewed as socially distinct by society), and (2) the 16
harm suffered or feared was or will be on account of membership in that group 17
(i.e., a nexus between the harm and the cognizable social group). See Quintanilla

- 184 Mejia v. Garland , 3 F.4th 56 9, 588

– 89 (2d Cir. 2021); Matter of M

- E

- V

- G

- , 26 I. & N. 1
Dec. 227, 237 (B.I.A. 2014). Relief “may be granted where there is more than one 2

motive for mistreatment, as long as at least one central reason for the mistreatment 3
is on account of a protected gro und.” Acharya v. Holder , 761 F.3d 289, 297 (2d Cir. 4
2014) (quotation marks and citations omitted). 5
We previously remanded this case for the agency to apply a mixed

- motive 6
analysis to determine whether Rivas

- Aparicio established a nexus between gang 7

mem bers targeting him and his membership in his proposed social group of 8
individuals who cooperate with police. On remand, the BIA acknowledged that 9

the record contained “material evidence indicating that the gang members may 10
have been motivated in part by [ Rivas

- Aparicio’s] cooperation with the police.” 11
Certified Administrative Record at 4. Assuming, based on this evidence, that a 12

nexus had been established, t he BIA then proceeded to consider the other factor in 13
evaluating a social group claim

— whether Rivas

- Aparicio’s proposed social group 14
was cognizable. Although the determination of whether a group constitutes a 15
“particular social group” is a legal issue the BIA reviews de novo, the parties 16
correctly contend that the factual findings underlying such decis ions are reviewed 17
for substantial evidence and may not be made by the BIA in the first instance. See 185 Matter of W

- Y

- C

- & H

- O

- B

- , 27 I. & N. Dec. 189, 191 (B.I.A. 2018) (holding that BIA 1
“review[s] the ultimate determination whether a proposed group is cognizable de 2
novo,” but “review[s] an [IJ]’s factual findings underlying that determination for 3
clear error”); see also 8 C.F.R. § 1003.1(d)(3)(iv) (A) (“ T he Board will not engage in 4
factfinding in the course of deciding cases .”). However, contrary to the parties’ 5
contentions, the BIA did not engage in impermissible factfinding . R ather , it 6
reasonably concluded that Rivas

- Aparicio ha d neither alleged facts nor presented 7

evidence to establish that his proposed social group was socially distinct within 8
Salvadoran society , and th u s failed to satisfy a material element of his claim

. 9

Indeed, Rivas

- Aparicio did not assert that anyone other than those involved were 10
aware that gang members had stolen from and attacked him or that he had 11
reported the theft to police, and his country conditions evidence described 12
government corruption, co llusion, and incompetence related to gangs but did not 13
indicate that those who cooperate with police are perceived as socially distinct by 14
Salvadoran society. See Paloka v. Holder , 762 F.3d 191, 196 (2d Cir. 2014) (“[W]hat 15
matters is whether society as a whole views a group as socially distinct, not the 16
persecutor’s perception.”); Gashi v. Holder , 702 F.3d 130, 137 (2d Cir. 2012) (finding 17
group of cooperating witnesses to war crimes in Kosovo socially distinct to both 186 potential persecutors and the wider Ko sovar society , given that the names of 1
potential witnesses were published on a public list and people in the petitioner’s 2
village knew that he had spoken to investigators and criticized him for it )

. G iven 3
the lack of any assertions or evidence of social d istinction, no findings of fact were 4
necessary for the BIA to determine that Rivas

- Aparicio failed to satisfy his burden 5

to that extent. C f. Wallace v. Gonzales , 463 F.3d 135, 141 (2d Cir. 2006) (“[A] review 6
of the factual record by the BIA does not conve rt its discretionary determination 7
as to whether a petitioner warrants an adjustment of status into improper 8
factfinding.”). For the same reasons, the BIA did not err in concluding that Rivas

9
Aparicio failed to establish that his proposed social group was cognizable. See 10
Quintanilla

- Mejia , 3 F.4th at 588

– 89; Matter of M

- E

- V

- G

- , 26 I. & N. Dec. at 237. 11

B. Political Opinion 12
For a political opinion claim, “[t]he applicant must . . . show, through direct 13
or circumstantial evidence, that the persecutor’s motive to persecute arises from 14
the applicant’s political belief,” Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 (2d 15
Cir. 2005) , which “must involve some support for or disagreement with the belief 16
system, policies, or practices of a government and its instrumentalities, an entity 17
that seeks to directly influence laws, regulations, or policy, an organization that 187 aims to overthrow the government, or a group that plays some other similar role 1
in society,” Zelaya

- Moreno v. Wilkinson , 989 F.3d 190, 199

– 200 (2d Cir. 2021) 2
(citations omitted). “The persecution may also be on account of an opinion 3
imputed to the applicant by the persecu tor, regardless of whether or not this 4
imputation is accurate.” Hernandez

- Chacon v. Barr , 948 F.3d 94, 102 (2d Cir. 2020)

. 5

“ [O] pposition to criminal elements such as gangs, even when such opposition 6
incurs the enmity of these elements, does not thereby b ecome political opposition 7
simply by virtue of the gang’s reaction.” Zelaya

- Moreno , 989 F.3d at 201

. 8

Rivas

- Aparicio’s testimony established that gang members targeted him for 9
reporting a th ef t to police and retrieving some of his stolen property

. He did not 10
testify that he expressed an anti

- gang opinion, that he would express such an 11
opinion if removed, or that gang members accused him of having such an opinion

. 12
Accordingly , the agency did not err in finding that he failed to show that he was 13
or would be targeted on account of an anti

- gang or an imputed anti

- gang political 14
opinion. See id. at 202

– 03. 15

Because Rivas

- Aparicio did not satisfy his burden of showing that the harm 16

he suffered and fears he would suffer again was or would be o n account of a 17
protected ground, the agency did not err in denying asylum and withholding of 188 removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). 1
For the foregoing reasons, the petition for review is DENIED

. All pending 2
motions and applications are DENIED and stays VACATED

. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6