2 0

- 2240 Villalta Rios v. Garland BIA Mulligan, IJ A078 219 112 

## 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 A NY 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 Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 9 th da y of March , two thousand t wenty

- three

. 3 4 PRESENT: 5 GUIDO CALABRESI , 6 MICHAEL H. PARK, 7 WILLIAM J. NARDINI , 8 Circuit Judges. 9

_____________________________________ 10 11 Marvin Moises Villalta Rios, AKA Marvin Rios, 12 AKA Marvin Moises Villalta Escobar, 13 14 P etitioner , 15 16

v. 17 20

- 2240 18 Merrick B. Garland, United 19 States Attorney General , 20 21 Respondent

. 22

_____________________________________ 23 24 FOR P ETITIONER : Robert A. Cini, Esq., New York, NY. 25 262 FO R RESPONDENT: Brian M. Boyn t on, Acting Assistant 1 Attorney General; Dawn S. Conrad, 2 Senior Litigation Counsel, Remi Da 3 Rocha

- Afodu, Trial Attorney, Office 4 of Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC. 7 8

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration 9
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the 10
petition for review is DENIED in part and DISMISSED in part

. 11

Petitioner Marvin Moises Villalta Rios, a native and citizen of El Salvador, seeks review 12
of a June 23, 2020, decision of the BIA affirming a January 3, 2020, decision of an Immigration 13
Judge (“IJ”) denying his application for withholding of removal and relief under the Convention 14
Against Torture (“CAT”). In re Mar vin Moises Villalta Rios, No. A 078 219 112 (B.I.A. June 23, 15
2020), aff’g No. A 078 219 112 (Immig r . Ct. N.Y. C. Jan. 3, 2020). We assume the parties’ 16
familiarity with the underlying facts and procedural history. 17
We have reviewed both the IJ’s and the BIA’s opinions. See Wangchuck v. Dep’t of 18

Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The standards of revie w are well established. 19

See 8 U.S.C. § 1252(b)(4)(B) (“ [T]he administrative findings of fact are conclusive unless any 20
reasonable adjudicator would be compelled to conclude to the contrary [.] ”); Paloka v. Holder , 762 21
F.3d 191, 195 (2d Cir. 2014) (reviewin g factual findings for substantial evidence and questions of 22
law de novo). 23

I. Withholding of Removal 24
Villalta Rios asserted a fear of persecution and torture based on his prior resistance to gang 25
recruitment and his disability, a head injury he suffered in a fall in the United States. To qualify 263 for withholding of removal, an applicant must show past persecution or that he would “more likely 1
than not” be persecuted, 8 C.F.R. § 1208.16(b)(2), “because of” his “ race, religion, nationality, 2
membership in a par ticular social group, or political opinion,” 8 U.S.C. § 1231(b)(3)(A). To 3
constitute persecution, “the conduct at issue must be attributable to the government, whether 4
directly because engaged in by government officials, or indirectly because engaged in b y private 5
persons whom the government is unable or unwilling to control

. ” Scarlett v. Barr , 957 F.3d 316, 6
328 (2d Cir. 2020) (quotation marks omitted). Villalta Rios had the burden of showing that his 7
past harm and feared future harm by gang members was or would be on account of a political 8
opinion or membership in a cognizable group of disabled people. The agency did not err in 9
denying withholding of removal on both ground s

. 10

A. Political Opinion 11

First , “[t]he applicant must

. . . show, through direct or circumstantial evidence, that the 12
persecutor’s motive to persecute arises from the applicant’s political belief,” rather than merely 13
from the persecutor’s own opinion. Zhang v. Gonzales , 426 F.3d 540, 545 (2d Cir. 2005). “The 14
persecution may also be on a ccount of an opinion imputed to the applicant by the persecutor, 15
regardless of whether or not this imputation is accurate.” Hernandez

- Chacon v. Barr , 948 F.3d 16
94, 102 (2d Cir. 2020). “ [O] pposition to criminal elements such as gangs, even when such 17
opposi tion incurs the enmity of these elements, does not thereby become political opposition 18
simply by virtue of the gang’s reaction.” Zelaya

- Moreno v. Wilkinson , 989 F.3d 190, 201 (2d Cir. 19
2021). 20

Here, Villalta Rios testified that in the late 1990s
, before he left El Salvador
, gang members 21
beat and cut him because he refused to join them, but he never reported them to the police. He 224 claims that if he returned, gangs would kill him because “they never forget” and that gang members 1
extort “rent” from people by t hreatening to kill them. Based on these facts, the agency did not err 2
in concluding that Villalta Rios failed to show a nexus between persecution and a political opinion, 3
actual or imputed. He did not express any opinion to the gang s , provide evidence th at he had 4
expressed an opinion publicly or had reported the gang s to the police, or allege that the gangs knew 5
of any political opinion he held. 6

B. Particular Social Group 7
To constitute a particular social group, the group must be “(1) composed of members w ho 8
share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct 9
within the society in question.” Paloka , 762 F.3d at 19 6 (quotation marks omitted). Particularity 10
overlaps with social distinction because particularity “require[s] inquiry into whether the group 11
can be described in sufficiently distinct terms that it would be recognized, in the society in 12
question, as a discrete class of persons.” Ordonez Azmen v. Barr , 965 F.3d 128, 135 (2d Cir. 13
2020) (quo tation marks omitted). 14
The government argues that Villalta Rios failed to meet his burden of showing “the exact 15
delineation of any particular social group(s) to which []he claim s to belong ” because he failed to 16
limit his group by any mental or physical d isability, the severity of the disability, or its cause. 17
Matter of W

- Y

- C

- & H

- O

- B

- , 27 I. & N. Dec. 189, 191 (B.I.A. 2018)

. We need not reach that 18
question because, even if Villalta Rios’s proposed group were cognizable, he failed to present 19

evidence tha t he would be “a target of persecution primarily on account of his status as a member 20
of the group.” Koudriachova v. Gonzales , 490 F.3d 255, 263 (2d Cir. 2007)

. Villalta Rios’s 21
evidence does not document persecution of disabled people in El Salvador and, in fact, reflects 225 that El Salvador passed laws in 2001 protecting the rights of disabled people to work and to go to 1

school. Given the lack of evidence that in El Salvador disabled people are generally targets of 2
persecution, the record supports the agency’s conclusion that Villa l ta Rios’s claims fail

. See Shao 3
v. Mukasey , 546 F.3d 138, 157

– 58 (2d Cir. 2008) (“[W]hen a petitioner bears the burden of proof, 4

his f ailure to adduce evidence can itself constitute the ‘substantial evidence’ necessary to support 5
the agency’s challenged decision.”). 6

II. CAT Claim 7

We do not reach the merits of Villalta Rios’s CAT claim. The BIA concluded that he 8
waived the CAT claim by faili ng to argue it on appeal, and he does not challenge that determination 9
here apart from a single sentence stating that the BIA “incredulously dismissed” the CAT claim 10

based on waiver. Pet ’ r Br. at 21; Zhang , 426 F.3d at 545 n.7 (deeming claim abandoned wh ere 11
brief addressed it in “only a single conclusory sentence”). Moreover, his brief to the BIA did not 12
argue the government acquiescence issue he raises here. See Zhong v. U.S. Dep’t of Justice , 480 13
F.3d 104, 123 (2d Cir. 2007) ( observing that “usually . . . issues not raised to the BIA will not be 14
examined by the reviewing court”). Because we lack jurisdiction to review a CAT claim that was 15

not raised before the BIA, Karaj v. Gonzales , 462 F.3d 113, 119 (2d Cir. 2006)
, we dismiss his 16
petition for review with respect to that claim. 17
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in 18

part

. All pending motions and applications are DENIED and stays VACATED

. 19

FOR THE COURT: 20 Catherine O ’ Hagan Wolfe, Clerk of Court 21 22