Arevalo v. Barr

18-3110 Arevalo v. Barr BIA Verrillo, IJ A088 428 153 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 TO 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 30th day of October, two thousand twenty. [5] 6 PRESENT: 7 SUSAN L. CARNEY, 8 MICHAEL H. PARK, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ [12] 13 MANUEL ALEJANDRO AREVALO, 14 Petitioner, [15] 16 v. 18-3110 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: H. Raymond Fasano, Youman, Madeo 24 & Fasano, LLP, New York, NY. [25] 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Linda S. Wernery, 28 Assistant Director; Thankful T. 1 Vanderstar, Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Manuel Alejandro Arevalo, a native and citizen 10 of Ecuador, seeks review of a September 28, 2018, decision of 11 the BIA affirming a September 6, 2017, decision of an 12 Immigration Judge (“IJ”) denying Arevalo’s application for 13 asylum and withholding of removal. In re Manuel Alejandro 14 Arevalo, No. A 088 428 153 (B.I.A. Sept. 28, 2018), aff’g No. 15 A 088 428 153 (Immig. Ct. Hartford Sept. 6, 2017). We assume 16 the parties’ familiarity with the underlying facts and 17 procedural history. 18 We have reviewed both the IJ’s and the BIA’s decisions 19 “for the sake of completeness.” Wangchuck v. Dep’t of 20 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006) (“When the 21 BIA briefly affirms the decision of an IJ and ‘adopt[s] the 22 IJ’s reasoning in doing so,’ we review the IJ’s and the BIA’s 23 decisions together.” (citation omitted)). We review the [2] 1 agency’s legal conclusions de novo and its factual findings 2 for substantial evidence. See 8 U.S.C. § 1252 (b)(4)(B); 3 Edimo-Doualla v. Gonzales, 464 F.3d 276, 281-83 (2d Cir. 4 2006). “[T]he administrative findings of fact are conclusive 5 unless any reasonable adjudicator would be compelled to 6 conclude to the contrary.” 8 U.S.C. § 1252 (b)(4)(B). The 7 agency reasonably determined that Arevalo failed to establish 8 that he would be persecuted on account of his membership in 9 a particular social group or because of an imputed political 10 opposition to the Revolutionary Armed Forces of Colombia 11 (“FARC”). 12 To demonstrate eligibility for asylum and withholding of 13 removal, an “applicant must establish that race, religion, 14 nationality, membership in a particular social group, or 15 political opinion was or will be at least one central reason 16 for” the claimed persecution. 8 U.S.C. §§ 1158 (b)(1)(B)(i), 17 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N. Dec. 341 , 346 18 (BIA 2010). “[A]sylum may be granted where there is more 19 than one motive for mistreatment, as long as at least one 20 central reason for the mistreatment is on account of a 21 protected ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d [3] 1 Cir. 2014) (internal quotation marks omitted). However, the 2 applicant “must provide some evidence of [a persecutor’s 3 motives], direct or circumstantial.” INS v. Elias-Zacarias, [4] 502 U.S. 478, 483 (1992); see also Manzur v. U.S. Dep’t of 5 Homeland Sec., 494 F.3d 281, 291 (2d Cir. 2007). 6 Even assuming that Arevalo’s proposed social group were 7 cognizable, 1 the agency reasonably determined that he failed 8 to provide any direct or circumstantial evidence to 9 demonstrate that gang members had targeted or would target 10 him on account of anything other than his perceived wealth 11 and their general criminal aspirations. See Ucelo-Gomez v. 12 Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (per curiam) 13 (applicant has the burden of demonstrating that persecutors 14 “ha[ve] any motive other than increasing their own wealth at 15 the expense of” the applicant (citation omitted)). Arevalo 16 testified that the gang members threaten anyone in the area 17 with money, and he provided no evidence that gang members had 18 threatened his family or demanded money because of a 1Contrary to Arevalo’s position, the agency was not required to determine whether the social group was cognizable because it assumed cognizability and denied relief on nexus grounds. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). [4] 1 relationship to the United States. See Melgar de Torres v. 2 Reno, 191 F.3d 307, 314 (2d Cir. 1999) (“general crime 3 conditions” do not constitute persecution on account of a 4 protected ground). Thus, substantial evidence supports the 5 agency’s determination that Arevalo did not establish a fear 6 of persecution based on his membership in a particular social 7 group consisting of “Ecuadorians perceived as U.S. citizens 8 due to presence of more than a decade with indicators of 9 wealth such as consistent remittance payments.” 10 Nor did Arevalo establish that he would be targeted by 11 FARC because it would impute to him an anti-FARC political 12 opinion. In order to demonstrate that past persecution or a 13 well-founded fear of future persecution is on account of 14 political opinion, the applicant must “show, through direct 15 or circumstantial evidence, that the persecutor’s motive to 16 persecute arises from the applicant’s political belief,” 17 rather than merely by the persecutor’s own opinion. Yueqing 18 Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (emphasis 19 added). Resistance to nongovernment entities, such as rebel 20 groups or gangs, is not necessarily a political opinion, nor 21 is it necessarily true that the group believes that any [5] 1 resistance to it is politically motivated. Elias-Zacarias, [2] 502 U.S. at 482 . Arevalo testified that he fears extortion 3 or kidnapping by the FARC because they will perceive him as 4 wealthy. He did not show that FARC would perceive him to 5 have a political opinion, and FARC’s own political platform 6 is insufficient. See Yueqing Zhang, 426 F.3d at 545 . Thus, 7 substantial evidence supports the agency’s determination that 8 Arevalo fears that FARC will target him on account of his 9 perceived ability to pay, rather than on account of a 10 protected ground. 11 For the foregoing reasons, the petition for review is 12 DENIED. All pending motions and applications are DENIED and 13 stays VACATED. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court