         13-2296
         Gonzales-Reyes v. Holder
                                                                                       BIA
                                                                                  Morace, IJ
                                                                               A097 531 940
                                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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of June, two thousand fourteen.
 5
 6       PRESENT:
 7                         REENA RAGGI,
 8                         GERARD E. LYNCH,
 9                         DENNY CHIN,
10                              Circuit Judges.
11
12       _____________________________________
13
14       IVAN ROBERTO GONZALES-REYES,
15                Petitioner,
16
17                           v.                                 13-2296
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                 Usman B. Ahmad, Long Island City,
25                                       New York.
26
27       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
28                                       General; Anthony P. Nicastro, Senior
29                                       Litigation Counsel; Joanna L.
30                                       Watson, Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   decision of the Board of Immigration Appeals (“BIA”), it is

 7   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 8   review is DENIED in part and DISMISSED in part.

 9       Ivan Roberto Gonzales-Reyes, a native and citizen of

10   Guatemala, seeks review of a May 13, 2013, decision of the

11   BIA affirming the May 29, 2012, decision of Immigration

12   Judge (“IJ”) Philip L. Morace, denying him asylum,

13   withholding of removal, and relief under the Convention

14   Against Torture (“CAT”).   In re Ivan Roberto Gonzales-Reyes,

15   No. A097 531 940 (B.I.A. May 13, 2013), aff’g No. A097 531

16   940 (Immig. Ct. N.Y. City May 29, 2012).   We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Because Gonzales-Reyes is removable for having

20   committed a controlled substance offense, we have

21   jurisdiction to review only “constitutional claims or

22   questions of law raised [in his] petition for review.”     See

23   8 U.S.C. § 1252(a)(2)(C), (D); see also Maiwand v. Gonzales,

24   501 F.3d 101, 104 (2d Cir. 2007).   To determine whether we


                                   2
 1   have jurisdiction, we must “study the arguments

 2   asserted . . . [and] determine, regardless of the rhetoric

 3   employed in the petition, whether [the petition] merely

 4   quarrels over the correctness of the factual findings or

 5   justification for the discretionary choices.”     Maiwand, 501

 6   F.3d at 104 (citing Xiao Ji Chen v. Gonzalez, 471 F.3d 315,

 7   329) (alteration in original).    If the petitioner contests

 8   only the IJ’s factual findings or discretionary

 9   determinations, we lack jurisdiction to review the petition.

10   Id.   However, we maintain jurisdiction to review the

11   application of law to fact.   Id. (citing Gui Yin Liu v. INS,

12   475 F.3d 135, 137 (2d Cir. 2007)).    For example, a question

13   of law may arise where the petitioner alleges that the

14   agency’s “fact-finding . . . is flawed by an error of law”

15   or “where a discretionary decision is argued to be an abuse

16   of discretion because it was made without rational

17   justification or based on a legally erroneous standard.”

18   Xiao Ji Chen, 471 F.3d at 329.

19         In order to establish eligibility for asylum and

20   withholding of removal, a petitioner “must establish that

21   race, religion, nationality, membership in a particular

22   social group, or political opinion was or will be at least


                                   3
 1   one central reason for persecuting the applicant.”     8 U.S.C.

 2   § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); see also

 3   Matter of J-B-N- and S-M-, 24 I. & N. Dec. 208 (BIA 2007);

 4   Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010).     To

 5   constitute a particular social group under the Immigration

 6   and Naturalization Act (“INA”), a group must be:

 7   “(1) composed of members who share a common immutable

 8   characteristic, (2) defined with particularity, and

 9   (3) socially distinct within the society in question.”

10   Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014); see

11   also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir.

12   2007).

13       Here, Gonzales-Reyes first argues that the agency

14   committed legal error by overlooking two of his legal

15   theories supporting his claim of membership in a proposed

16   social group.   Gonzales-Reyes contends that his familial

17   relationships tie him to two distinct social groups that are

18   subject to persecution in Guatemala: (1) “Guatemalans whose

19   family members have defied, and owe money to, MS-13 Gang

20   Members;” and, (2) “Guatemalans who have U.S. citizen

21   families.”   Despite Gonzales-Reyes’s suggestion to the

22   contrary, the agency considered and rejected each of these


                                   4
 1   proposed groups.   In his oral opinion, the IJ noted that

 2   Guatemalan gang members may be aware of Gonzales-Reyes’s

 3   connections to the United States, as well as his relatives’

 4   resistance to gang intimidation, but ultimately rejected

 5   each of these proposed bases for finding that Gonzales-Reyes

 6   belonged to a particular social group.     Thus, the agency did

 7   not commit legal error by denying his asylum and withholding

 8   claims on those grounds.

 9        Gonzales-Reyes next contends that the agency erred in

10   concluding that his proposed particular social groups are

11   not cognizable under the INA.1     To the extent that he argues

12   that the agency committed legal error, his petition must be

13   denied.   Upon reviewing the record, the agency concluded

14   that Gonzales-Reyes failed to present sufficient evidence

15   that members of Guatemalan society viewed any of his

16   proposed groups as distinct or that those groups are at a

17   greater risk of gang violence than the general population of

18   Guatemala.   Thus, we cannot say that the agency’s

19   discretionary decision to deny Gonzalez-Reyes’ petition was

20   made without rational justification or based on a legally


     1
       In addition to proposed social groups based on his familial
     ties, Gonzales-Reyes also contends that he will be subject to
     persecution as a Guatemalan man who was sought for recruitment by
     the MS-13 gang and refused such recruitment.
                                    5
 1   erroneous standard.   See Ucelo-Gomez, 509 F.3d at 73 (“When

 2   the harm visited upon members of a group is attributable to

 3   the incentives presented to ordinary criminals rather than

 4   to persecution, the scales are tipped away from considering

 5   those people a ‘particular social group’ within the meaning

 6   of the INA.”); see also Matter of W-G-R-, 26 I. & N. Dec.

 7   208, 217 (BIA 2014) (“To have the ‘social distinction’

 8   necessary to establish a particular social group, there must

 9   be evidence showing that society in general perceives,

10   considers, or recognizes persons sharing the particular

11   characteristic to be a group.”).   For these reasons,

12   Gonzales-Reyes’s petition for review of the agency’s denial

13   of his asylum and withholding claims must be denied.

14       Finally, we lack jurisdiction to consider Gonzales-

15   Reyes’s purely factual challenge to the agency’s denial of

16   CAT relief.   See 8 U.S.C. § 1252(a)(2)(C), (D); see also

17   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

18   Cir. 2006).

19

20

21

22

23
                                   6
 1       For the foregoing reasons, the petition for review is

 2   DENIED in part and DISMISSED in part.    As we have completed

 3   our review, the pending motion for a stay of removal in this

 4   petition is DENIED as moot.

 5
 6                                 FOR THE COURT:
 7                                 Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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