21-6346 Velasquez- Tomas v. Garland BIA Hochul , IJ A 205 940 994 

### 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. 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 10 th da y of June, two thousand twenty 3 four
. 4 5 PRESENT: 6 MICHAEL H. PARK, 7 MYRNA PÉREZ, 8 ALISON J. NATHAN, 9 Circuit Judges. 10

_____________________________________ 11 12 JOEL VELASQUEZ
- TOMAS , 13 Petitioner , 14 15 v. 21 - 6346 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent
. 20

_____________________________________ 21 22 FOR PETITIONER : Jose Perez , Esq., Law Offices of Jose Perez, 23 P.C., Syracuse , NY

. 242 FOR RESPONDENT: Brian Boynton , Principal Deputy Assistant 1 Attorney General ; Zoe J. Heller , Senior 2 Litigation Counsel ; Craig W. Kuhn , Trial 3 Attorney, Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D C. 6 UPON DUE CONSIDERATION of this petition for review of a Board of 7 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 8
DECREED that the petitio n for review is DISMISSED in part and DENIED in part

. 9
Petitioner Joel Velasquez

- Tomas , a native and citizen of Guatemala , seeks 10
review of a May 11, 2021 decision of the BIA affirming a September 5, 2018 decision 11 of an Immigration Judge (“IJ”) denying his application for asylum, withholding of 12 removal, and relief under the Convention Against Torture (“CAT”)

. In re Joel 13 Velasquez

- Tomas, No. A 205 940 994 (B.I.A

. May 11, 2021 ), aff’g No. A 205 940 994 14 (Immig r . Ct. Buffalo Sep t . 5, 2018 ). We assume the parties’ familiarity with the 15 underlying facts and procedural history. 16 Under the circumstances, we review both the IJ’s and BIA’s decisions. See 17 Ming Xia Chen v. BIA , 435 F.3d 141, 144 (2d Cir. 2006). We review factual findings 18 for substantial evidence and questions of law and application of law to fact de 19

novo . See Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009 )

. “[T]he 203 administrative findings of fact are conclusive unless any reasonable adjudicator 1 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B ). 2
I. Asylum 3 We dismiss the petition as to asylum. To obtain asylum, a noncitizen must 4 “demonstrate[] by clear and convincing evidence that the application has been 5 filed within 1 year after the date of the alien’s arrival in the United States.” Id. 6 § 1158(a)(2)(B). An application may be considered outside the deadline “if the 7
alien demonstrates

. . . the existence of changed circumstances which materially 8 affect the applicant’s eligibility for asylum or extraordinary circumstances relating 9 to the delay in filing an application.” Id. § 1158(a)(2)(D). “T he applicant shall 10 file an asylum application within a reasonable period given those ‘changed 11
circumstances.’ ” 8 C.F.R. § 1208.4(a)(4)(ii). Our jurisdiction to review the 12 findings regarding the circumstances excusing untimeliness and whether it was 13 filed within a reasonable period thereafter is limited to “constitutional claims or 14 questions of law.” 8 U.S.C. § 1252(a)(2)(D); see id. § 1158(a)(3). For jurisdiction 15 to attach, a question of law must be “ colorable. ” Barco

- Sandoval v. Gonzales , 516 16
F.3d 35, 40

– 41 (2d Cir. 2007). 174 Velasquez- Tomas argues that worsening gang violence in Guatemala and 1 gang members ’ threats against his brother in 2015 constituted changed 2
circumstances that excused his late filing

. But the agency considered this 3 argument and determined that even if t hose events were considered changed 4 circumstances, the two- year delay between them and filing the application was 5
not reasonable. Because Velasquez

- Tomas does not challenge this determination 6
in his brief , we dismiss the petition as to asylum. 7
II. Withholding of Removal 8 We deny the petition as to withholding of removal. “[T]he Attorney 9 General may not remove an alien to a country if the Attorney General decides that 10
the alien’s life or freedom would be threatened in that country because of the 11
alien’s race, religion, nationality, membership in a particular social group, or 12 political opinion.” 8 U.S.C. § 1231(b)(3)(A). The applicant has the burden to 13 establish either past persecution or that he “more likely than not” will be 14 persecuted, 8 C.F.R. § 1208.16(b)(1), (2), and that a protected ground was or will be 15 “one central reason” for the persecution, 8 U.S.C. § 1158(b)(1)(B)(i); see Quituizaca 16
v. Garland , 52 F.4th 103, 109

– 14 (2d Cir. 2022) (deferring to the BIA’s application of 175 the “ one central reason ” standard from the asylum context to withholding of 1 removal). 2 Velasquez- Tomas claimed a fear of persecution by gang members based on 3 his membership in a particular social group of “young Guatemalan men who fear 4 gang retaliation due to family members’ refusal to traffic drugs for them.” 5 Certified Administrative Record at 132. Substantial evidence supports the 6
agency ’s determination that he failed to establish a nexus between his feared harm 7 and his membership in a particular social group. “Whether the requisite nexus 8 exists depends on the views and motives of the persecutor,” and cannot be 9 established by “individuals threatened only because they live in a country with 10 pervasive criminality.” Paloka v. Holder , 762 F.3d 191, 196

– 98 (2d Cir. 2014) 11 (quotations omitted) ; see Edimo

- Doualla v. Gonzales , 464 F.3d 276, 282 (2d Cir. 2006) 12 (reviewing nexus determination for substantial evidence)

. 13 Velasquez- Tomas’s fear stemmed from an encounter between his brother 14 and gang members in Guatemala, in which the gang members told his brother to 15 join them, demanded money, and threatened to beat him when he declined. His 16 brother testified that the gang targeted him because they wanted money and 17 would likely target Velasquez

- Tomas for the same reason. Velasquez -Tomas’s 186 withholding claim fails because substantial evidence supports the determination 1
that the gang members ’ motivation was merely enrichment and expand ing their 2 criminal enterprise. See Melgar de Torres v. Reno , 191 F.3d 307, 314 (2d Cir. 1999) 3 ( explaining that “general crime conditions are not a stated ground” for 4 persecution ); see also Ucelo

- Gomez v. Mukasey , 509 F.3d 70, 74 (2d Cir. 2007) 5 ( denying petition where “the petitioner [] cited no evidence in the record

. . . that 6
the individual or individual s who threatened [him] had any motive other than 7 increasing their own wealth”) (internal quotations omitted)

. 8
III. CAT Relief 9 We deny the petition as to CAT relief. “The burden of proof is on the 10 applicant

. . . to establish that it is more likely than not that he or she would be 11 tortured if removed to the proposed country of removal. ” 8 C.F.R. § 1208.16(c)(2). 12 “Torture is defined as any act by which severe pain or suffering, whether physical 13 or mental, is intentionally inflicted on a person

. . . by, or at the instigation of, or 14 with the consent or acquiescence of, a public official acting in an official capacity 15 or other person acting in an official capacity.” Id. § 1208.18(a)(1). “A private 16 actor’s behavior can constitute torture under the CAT without a government’s 17 specific intent to inflict it if a government official is aware of the persecutor’s 187 conduct and intent and acquiesces in violation of the official’s duty to intervene.” 1
Pierre v. Gonzales , 502 F.3d 109, 118 (2d Cir. 2007). 2 Substantial evidence supports t he agency’s conclusion that Velasquez

3 Tomas failed to show he would more likely than not be tortured by or with the 4 acquiescence of government officials. Neither Velasquez

- Tomas nor his brother 5

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

. See 8 C.F.R. § 1208.16(c)(3) (listing past torture as a factor to 7 consider in determining the likelihood of future torture). And no “particularized 8
evidence” establishes that someone like Velasquez

- Tomas would “more likely 9 than not” be tortured, or that the government would acquiesce to such torture. 10 Mu Xiang Lin v. U.S. Dep’t of Just. , 432 F.3d 156, 1 59 -61 (2d Cir. 2005) (denying CAT 11 claim that lacked “particularized evidence” and was “based solely on the fact that 12 [petitioner] is part of [a] large class of persons” within which there have been 13 “several documented instances” of torture) ; see also Quintanilla

- Mejia v. Garland , 3 14 F.4th 569, 59 3 (2d Cir. 2021) ( explaining that evidence of corruption or difficulty 15 combatting gang violence does not necessarily compel a conclusion that public 16 officials would acquiesce to torture)

. 178 For the foregoing reasons, the petition for review is DISMISSED in part as 1 to asylum and DENIED in remaining part

. All pending motions and applications 2 are DENIED and stays VACATED. 3
FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6