20

- 2821(L) Hernandez

- Lopez v. Garland BIA Poczter , IJ A 209 222 330/ 209 217 375
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 ELECTR ONIC 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, 1 held at the Thurgood Marsha ll United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 2 7 t h d a y of J a n u a r y , two thousand twenty

- t hree

. 3 4 PRESENT: 5 GUIDO CALABRESI, 6 ROBERT D. SACK , 7 RICHARD J. SULLIVAN , 8 Circuit Judges. 9

_____________________________________ 10 11 KEVIN JONATHAN HERNANDEZ

12 LOPEZ , TELMA ELIZABETH LOPEZ

13 BARRIOS, 14 15 Petitioner s , 16 17

v. 2 0

- 2821(L), 18 20

- 2823(Con) 19 NAC 20 MERRICK B. GARLAND , UNITED 21 STATES ATTORNEY GENERAL, 22 23 Respondent

. 242 _____________________________________ 1 2 FOR PETITIONER S : Gary J. Yerman , Esq. , New York , NY

. 3 4 FOR RESPONDENT: Brian Boynton , Acting A ssistant Attorney 5 Genera l ; Jeffrey R. Leist , Senior Litigation 6 Counsel ; Raya Jarawan , Trial Attorne y , Office 7 of Immigration Litigation, United States 8 Department of Justice, Washington, D C. 9
UPON DUE CONSIDERATION of th ese petition s for review of Board of 10
Immigration Appeals (“BIA”) decision s , it is hereby ORDERED, ADJUDGED, 11

AND DECREED that the pe titio n s for review are D ENI E D

. 12
Kevin Jonathan Hernandez

- Lopez and his mother , Telma Elizabeth 13
Lopez

- Barrios , native s and citizen s o f Guatemala , petition for review of July 28 , 14

202 0 decision s of the BIA affirming a September 11 , 201 8 decision of an 15
Immigration Judge (“IJ”) denying their claims for asylum, withholding of 16
removal, and protection under the Convention Against Torture (“CAT”)

. 1 In re 17
Kevin Jonathan Hernandez

- Lopez , Telma Elizabeth Lopez

- Barrios , No s

. A 209 222 18

330 /209 217 375 (B.I.A. July 28 , 202 0 ), aff ’g No s

. A209 222 330/209 217 375 ( Immig r

. 19

1 In this summary order, w e primarily refer to Ms. Lopez

- Barrios because her son’s claims are based on the same facts as hers.3 Ct. N.Y. C. Sept. 11 , 201 8 ). We assume the parties’ familiarity with the underlying 1

facts , procedural history , and issues on petition for review

. 2

W e have reviewed both the IJ’s and the BIA’s decisions. See Yun

- Zui Guan 3

v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). We review the A gency’s factual 4
findings for substantial evidence, and we treat them as “ conclusive unless any 5
reasonable adjudicator wo uld be compelled to conclude to the contrary .” See 8 6
U.S.C. § 1252(b)(4)(B)

. We likewise review the A gency’s nexus determination for 7

substantial evidence. See Edimo

- Doualla v. Gonzales , 464 F.3d 276, 282

– 83 (2d Cir. 8
2006)

. We review questions of law de novo. See Yanqin Weng v. Holder , 562 F.3d 9
510, 513 (2d Cir. 2009). 2 10

An applicant for asylum and withholding of removal must establish past 11
persecution , or a fear of future persecution , with a nexus to a protected ground of 12

2 We note that in general, we lack jurisdiction over petitions, such as Ms. Lopez

- Barrios’s, seeking review of a decision to deny withholding of removal and CAT relief following reinstatement of a prior order of removal when the petition is filed more than thirty days from the reinstatement decision. See Bhaktibhai

- Patel v. Garland , 32 F.4th 180, 183

– 84 (2d Cir. 20 22). Because the A gency heard Ms. Lopez

- Barrios’s case with her son’s, in which it did enter a final order of removal that we have jurisdiction to review, these petitions raise a question of whether

– in light of the cases ’ being heard together

– we have jurisdiction to review all claims, including Ms. Lopez

- Barrios’s, or only the claims over which we would ordinarily have jurisdiction if the A gency had not heard the cases together. We need not decide this question, and instead “assume hypothetical jurisd iction” and dispose of the petitions on the merits. Butcher v. Wendt , 975 F.3d 236, 242

– 43 (2d Cir. 2020) (citation omitted).4 “race, religion, nationality, membership in a particular social group, or political 1
opinion.” 8 U.S.C. § § 1158(b)(1)(B)(i) , 1231(b)(3) ; 8 C.F.R. § § 1208.13(b) , 2
1208.16(b) . To constitute a particular social group, a group must be 3
“(1) composed of members who share a common immutable characteristic, 4
(2) defined with particularity, and (3) socially distinct within the society in 5
question.” Paloka v. Holder , 762 F.3d 191, 19 6 (2d Cir. 2014) (quoting Matter of 6

M

- E

- V

- G

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

- Gomez v. Mukasey , 7
509 F.3d 70, 72

– 74 (2d Cir. 2007). Ms. Lopez

- Barrios’s proposed particular social 8
group, “female landowners who refuse and resist local gang extortion , ” Lopez

9

Barrios Br. at 16, is not cognizable because it is defined solely on the basis of the 10
alleged persecution , See Paloka , 762 F.3d at 196 (“Persecutory conduct aimed at a 11
social group cannot alone define the group, which must exist independently of the 12
persecution.” (quoting Matter of W

- G

- R

- , 26 I. & N. Dec. 208, 215 (B

. I

. A

. 2014)). 13

Moreover, Ms. Lopez

- Barrios did not es tablish that her membership in that 14
putative group was “at least one central reason” that she suffered or feared 15
persecution . 8 U.S.C. §§ 1158(b)(1)(B)(i) ( providing “one [

- ] central [

- ] reason” 16

nexus standard for asylum); see Quituizaca v. Garland , 52 F.4th 103, 105

– 06 , 107

– 14 17
(2d Cir. 2022) (holding that “one [

- ] central [

- ] reason” standard applies to 185 withholding of removal); see also INS v. Elias

- Zacarias , 502 U.S. 478, 483 (1992) 1
(requiring “ some evidence” of motive, “direct or circumstantial ” (emphasis in 2
original) ). Ms. Lopez

- Barrios testified that she did not know why the men who 3
threatened her chose to pressure her to grow marijuana , other than that there was 4
abandoned land near where she was living

. But h arm that stems from general 5
criminal motives is not a basis for asylum or withholding of removal. See Melgar 6

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

– 14 (2d Cir. 1999) ( holding that “act[s] of random 7
violence” and “general crime conditions” are not protected grounds) ; see a lso 8

Ucelo

- Gomez , 509 F.3d at 73 (“When the harm visited upon members of a group is 9
attributable to the incentives presented to ordinary criminals rather than to 10
persecution, the scales are tipped away from considering those people a ‘particular 11
social grou p’

. . . .”). 12
Finally, substantial evidence supports the A gency’s denial of CAT 13
protection because Ms. Lopez

- Barrios did not establish that she or her son w ere 14
“more likely than not ” to “ be tortured,” 8 C.F.R. § 1208.16(c) (2) , or that 15
“government officials [would] know of or remain willfully blind to an act ” of 16

torture, Khouzam v. Ashcroft , 361 F.3d 161, 171 (2d Cir. 2004). She did not allege 17
past torture or show that she and her son could not relocate within Guatemala to 186 avoid harm , as the threats against them were tied to specific land next to the house 1
they had been living in ; the country

- conditions evidence of general crime and 2

violence in Guatemala was insufficient to meet their burde n

. See 8 C.F.R. 3
§ 1208.16(c) (2)

– (3) ; Mu

- Xing Wang v. Ashcroft , 320 F.3d 130, 144 (2d Cir. 2003) 4
(requiring applicant to “establish[] that someone in his particular alleged 5
circumstances is more likely than not to be tortured” (emphasis omitted) ); see also 6
Mu Xiang Lin v. U.S. Dep’t of Justice , 4 32 F.3d 156, 160 (2d Cir. 2005) (requiring 7 “particularized evidence” beyond general country conditions to support a CAT 8

claim ); Jian Hui Shao v. Mukasey , 546 F.3d 138, 157

– 58 (2d Cir. 2008) (“[W]hen a 9
petitioner bears the burden of proof, his failure to ad duce evidence can itself 10
constitute the ‘substantial evidence’ necessary to support the [A] gency’s 11
challenged decision.”). 12
For the foregoing reasons, the petition s for review are DENIE D

. All 13
pending motions and applications are DENIED and stays VACATED

. 14

FOR THE COURT: 15 Catherine O ’ Hagan Wolfe , 16 Clerk of Court 17