21-6346 

Velasquez-Tomas v. Garland

BIA

Hochul, IJ

A205 940 994

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. 

1 At a stated term of the United States Court of Appeals for the Second 

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

Square, in the City of New York, on the 10th 3 day of June, two thousand twenty4 four. 

5 

6 PRESENT: 

7 MICHAEL H. PARK,

8 MYRNA PÉREZ,

9 ALISON J. NATHAN,

10 Circuit Judges. 

11 _____________________________________

12

13 JOEL VELASQUEZ-TOMAS, 

14 Petitioner, 

15

16 v. 21-6346

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent. 

21 _____________________________________

22

23 FOR PETITIONER: Jose Perez, Esq., Law Offices of Jose Perez, 

24 P.C., Syracuse, NY. 
2 

1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 

2 Attorney General; Zoe J. Heller, Senior 

3 Litigation Counsel; Craig W. Kuhn, Trial 

4 Attorney, Office of Immigration Litigation, 

5 United States Department of Justice, 

6 Washington, DC.

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

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

9 DECREED that the petition for review is DISMISSED in part and DENIED in part. 

10 Petitioner Joel Velasquez-Tomas, a native and citizen of Guatemala, seeks 

11 review of a May 11, 2021 decision of the BIA affirming a September 5, 2018 decision 

12 of an Immigration Judge (“IJ”) denying his application for asylum, withholding of 

13 removal, and relief under the Convention Against Torture (“CAT”). In re Joel 

14 Velasquez-Tomas, No. A 205 940 994 (B.I.A. May 11, 2021), aff’g No. A 205 940 994

15 (Immigr. Ct. Buffalo Sept. 5, 2018). We assume the parties’ familiarity with the 

16 underlying facts and procedural history. 

17 Under the circumstances, we review both the IJ’s and BIA’s decisions. See 

18 Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). We review factual findings 

19 for substantial evidence and questions of law and application of law to fact de 

20 novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). “[T]he 
3 

1 administrative findings of fact are conclusive unless any reasonable adjudicator 

2 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

3 I. Asylum 

4 We dismiss the petition as to asylum. To obtain asylum, a noncitizen must 

5 “demonstrate[] by clear and convincing evidence that the application has been 

6 filed within 1 year after the date of the alien’s arrival in the United States.” Id.

7 § 1158(a)(2)(B). An application may be considered outside the deadline “if the 

8 alien demonstrates . . . the existence of changed circumstances which materially 

9 affect the applicant’s eligibility for asylum or extraordinary circumstances relating 

10 to the delay in filing an application.” Id. § 1158(a)(2)(D). “The applicant shall 

11 file an asylum application within a reasonable period given those ‘changed 

12 circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). Our jurisdiction to review the 

13 findings regarding the circumstances excusing untimeliness and whether it was 

14 filed within a reasonable period thereafter is limited to “constitutional claims or 

15 questions of law.” 8 U.S.C. § 1252(a)(2)(D); see id. § 1158(a)(3). For jurisdiction 

16 to attach, a question of law must be “colorable.” Barco-Sandoval v. Gonzales, 516 

17 F.3d 35, 40–41 (2d Cir. 2007). 
4 

1 Velasquez-Tomas argues that worsening gang violence in Guatemala and 

2 gang members’ threats against his brother in 2015 constituted changed 

3 circumstances that excused his late filing. But the agency considered this 

4 argument and determined that even if those events were considered changed 

5 circumstances, the two-year delay between them and filing the application was 

6 not reasonable. Because Velasquez-Tomas does not challenge this determination 

7 in his brief, we dismiss the petition as to asylum.

8 II. Withholding of Removal

9 We deny the petition as to withholding of removal. “[T]he Attorney 

10 General may not remove an alien to a country if the Attorney General decides that 

11 the alien’s life or freedom would be threatened in that country because of the 

12 alien’s race, religion, nationality, membership in a particular social group, or 

13 political opinion.” 8 U.S.C. § 1231(b)(3)(A). The applicant has the burden to 

14 establish either past persecution or that he “more likely than not” will be 

15 persecuted, 8 C.F.R. § 1208.16(b)(1), (2), and that a protected ground was or will be 

16 “one central reason” for the persecution, 8 U.S.C. § 1158(b)(1)(B)(i); see Quituizaca 

17 v. Garland, 52 F.4th 103, 109–14 (2d Cir. 2022) (deferring to the BIA’s application of 
5 

1 the “one central reason” standard from the asylum context to withholding of 

2 removal). 

3 Velasquez-Tomas claimed a fear of persecution by gang members based on 

4 his membership in a particular social group of “young Guatemalan men who fear 

5 gang retaliation due to family members’ refusal to traffic drugs for them.” 

6 Certified Administrative Record at 132. Substantial evidence supports the 

7 agency’s determination that he failed to establish a nexus between his feared harm 

8 and his membership in a particular social group. “Whether the requisite nexus 

9 exists depends on the views and motives of the persecutor,” and cannot be 

10 established by “individuals threatened only because they live in a country with 

11 pervasive criminality.” Paloka v. Holder, 762 F.3d 191, 196–98 (2d Cir. 2014) 

12 (quotations omitted); see Edimo-Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir. 2006)

13 (reviewing nexus determination for substantial evidence). 

14 Velasquez-Tomas’s fear stemmed from an encounter between his brother 

15 and gang members in Guatemala, in which the gang members told his brother to 

16 join them, demanded money, and threatened to beat him when he declined. His 

17 brother testified that the gang targeted him because they wanted money and 

18 would likely target Velasquez-Tomas for the same reason. Velasquez-Tomas’s 
6 

1 withholding claim fails because substantial evidence supports the determination 

2 that the gang members’ motivation was merely enrichment and expanding their 

3 criminal enterprise. See Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) 

4 (explaining that “general crime conditions are not a stated ground” for 

5 persecution); see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) 

6 (denying petition where “the petitioner[] cited no evidence in the record . . . that 

7 the individual or individuals who threatened [him] had any motive other than 

8 increasing their own wealth”) (internal quotations omitted). 

9 III. CAT Relief

10 We deny the petition as to CAT relief. “The burden of proof is on the 

11 applicant . . . to establish that it is more likely than not that he or she would be 

12 tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). 

13 “Torture is defined as any act by which severe pain or suffering, whether physical 

14 or mental, is intentionally inflicted on a person . . . by, or at the instigation of, or 

15 with the consent or acquiescence of, a public official acting in an official capacity 

16 or other person acting in an official capacity.” Id. § 1208.18(a)(1). “A private

17 actor’s behavior can constitute torture under the CAT without a government’s 

18 specific intent to inflict it if a government official is aware of the persecutor’s 
7 

1 conduct and intent and acquiesces in violation of the official’s duty to intervene.” 

2 Pierre v. Gonzales, 502 F.3d 109, 118 (2d Cir. 2007).

3 Substantial evidence supports the agency’s conclusion that Velasquez4 Tomas failed to show he would more likely than not be tortured by or with the 

5 acquiescence of government officials. Neither Velasquez-Tomas nor his brother 

6 was tortured in the past and neither attempted to notify Guatemalan authorities 

7 of any threats. See 8 C.F.R. § 1208.16(c)(3) (listing past torture as a factor to 

8 consider in determining the likelihood of future torture). And no “particularized 

9 evidence” establishes that someone like Velasquez-Tomas would “more likely 

10 than not” be tortured, or that the government would acquiesce to such torture. 

11 Mu Xiang Lin v. U.S. Dep’t of Just., 432 F.3d 156, 159-61 (2d Cir. 2005) (denying CAT 

12 claim that lacked “particularized evidence” and was “based solely on the fact that 

13 [petitioner] is part of [a] large class of persons” within which there have been 

14 “several documented instances” of torture); see also Quintanilla-Mejia v. Garland, 3 

15 F.4th 569, 593 (2d Cir. 2021) (explaining that evidence of corruption or difficulty 

16 combatting gang violence does not necessarily compel a conclusion that public 

17 officials would acquiesce to torture). 
8 

1 For the foregoing reasons, the petition for review is DISMISSED in part as 

2 to asylum and DENIED in remaining part. All pending motions and applications 

3 are DENIED and stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, 

6 Clerk of Court