     17-2181
     Beltran-De Roque v. Barr
                                                                                        BIA
                                                                              Christensen, IJ
                                                                       A202 075 721/722/723

                                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 8th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RAYMOND J. LOHIER, JR.,
10            CHRISTOPHER F. DRONEY,
11                 Circuit Judges.
12   _____________________________________
13
14   MAYRA BELTRAN-DE ROQUE,
15   RAQUEL SUHEY ROQUE-BELTRAN,
16   JOSE ARIEL ROQUE-BELTRAN,
17
18                               Petitioners,
19                     v.                                           17-2181
20                                                                  NAC
21   WILLIAM P. BARR, UNITED STATES
22   ATTORNEY GENERAL,
23
24                 Respondent.
25   _____________________________________
26
27   FOR PETITIONERS:                           Mayra Beltran-De Roque, Pro Se,
28                                              Brooklyn, NY.
29   FOR RESPONDENT:                            Chad A. Readler, Acting Assistant
30                                              Attorney General; Emily Anne
31                                              Radford, Assistant Director; David
1                                Kim, Trial Attorney, Office of
2                                Immigration Litigation, Civil
3                                Division, United States Department
4                                of Justice, Washington, DC.
5
6        UPON DUE CONSIDERATION of this petition for review of a

7    Board of Immigration Appeals (“BIA”) decision, it is hereby

8    ORDERED, ADJUDGED, AND DECREED that the petition for review

9    is DENIED.

10       Petitioners    Mayra   Beltran-De   Roque,   and   her   minor

11   children, Raquel Suhey Roque-Beltran and Jose Ariel Roque-

12   Beltran, natives and citizens of El Salvador, seek review of

13   a June 15, 2017 decision of the BIA affirming a November 14,

14   2016 decision of an Immigration Judge (“IJ”) denying Beltran-

15   De Roque’s application for asylum, withholding of removal,

16   and relief under the Convention Against Torture (“CAT”).        In

17   re Mayra Beltran-De Roque, Raquel Suhey Roque-Beltran, Jose

18   Ariel Roque-Beltran, Nos. A 202 075 721/722/723 (B.I.A. June

19   15, 2017), aff’g Nos. A 202 075 721/722/723 (Immig. Ct. N.Y.

20   City Nov. 14, 2016).   We assume the parties’ familiarity with

21   the underlying facts and procedural history in this case.

22       Under the circumstances of this case, we have considered

23   both the IJ’s and the BIA’s decisions “for the sake of

24   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

25   524, 528 (2d Cir. 2006).    The applicable standards of review


                                    2
1    are well established.        See 8 U.S.C. § 1252(b)(4)(B); Yanqin

2    Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); Gjolaj v.

3    Bureau of Citizenship & Immigration Servs., 468 F.3d 140, 143

4    (2d Cir. 2006) (reviewing nexus determination for substantial

5    evidence).

6    Nexus to a Protected Ground

7         To demonstrate eligibility for asylum and withholding of

8    removal,   Beltran-De   Roque     had     to   “establish    that   race,

9    religion, nationality, membership in a particular social

10   group, or political opinion was or will be at least one

11   central    reason     for”     her       persecution.        8      U.S.C.

12   § 1158(b)(1)(B)(i); see id. § 1231(b)(3)(A); In re C-T-L-, 25

13   I. & N. Dec. 341, 348 (B.I.A. 2010) (applying “one central

14   reason” standard to withholding).          The BIA has explained that

15   “the protected ground cannot play a minor role in the alien’s

16   past mistreatment or fears of future mistreatment.               That is,

17   it   cannot   be    incidental,      tangential,     superficial,       or

18   subordinate to another reason for harm.”            In re J-B-N- & S-

19   M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007).             However, “asylum

20   may be granted where there is more than one motive for

21   mistreatment, as long as at least one central reason for the

22   mistreatment is on account of a protected ground.”               Acharya

23   v. Holder, 761 F.3d 289, 297 (2d Cir. 2014) (quotation marks

                                          3
1    omitted).      An applicant “must provide some evidence of [a

2    persecutor’s motives], direct or circumstantial.”                INS v.

3    Elias-Zacarias, 502 U.S. 478, 483 (1992); see also Manzur v.

4    U.S. Dep’t of Homeland Sec., 494 F.3d 281, 291 (2d Cir. 2007).

5          Beltran-De Roque claimed asylum based on her membership

6    in two particular social groups: (1) her nuclear family; and

7    (2) the related group of Salvadorans who have family ties to

8    the   United    States.      Assuming   these    social   groups    are

9    cognizable, the agency reasonably determined that Beltran-De

10   Roque   failed    to      demonstrate   that    she   suffered     past

11   persecution or had a well-founded fear of future persecution

12   on account of her membership in the groups.*

13         Beltran-De Roque’s membership in her family-based social

14   groups was not “a central reason” for her harm.           In re J-B-

15   N- & S-M-, 24 I. & N. Dec. at 214.                Beltran-De Roque’s

16   familial status played an incidental role to the gang’s

17   purpose of maintaining its larger criminal enterprise, which

18   affects Salvadoran society at large.            See id.; see also In

19   re L-E-A-, 27 I. & N. Dec. 40, 45 (B.I.A. 2017) (“[T]he fact



     * Although she now argues that the gangs targeted her on account
     of a gender-based social group, she did not exhaust that argument
     before the agency and it is not properly before us. See Lin Zhong
     v. U.S. Dep’t of Justice, 480 F.3d 104, 121–22 (2d Cir. 2007)
     (explaining requirement that petitioners exhaust all issues before
     the BIA).
                                      4
1    that a persecutor has threatened an applicant and members of

2    his family does not necessarily mean that the threats were

3    motivated by family ties. . . . Further, the fact that a

4    persecutor targets a family member simply as a means to an

5    end is not, by itself, sufficient to establish a claim,

6    especially if the end is not connected to another protected

7    ground.”).     Additionally, the fact that Beltran-De Roque’s

8    daughter in El Salvador has not been directly threatened by

9    the gangs weighs against a finding of a well-founded fear on

10   account of familial status.              See Melgar de Torres v. Reno,

11   191 F.3d 307, 313 (2d Cir. 1999) (explaining that fear of

12   persecution is undermined when similarly situated family

13   members remain unharmed in the native country).

14       Beltran-De Roque’s statements instead reflect that she

15   was a victim of and feared general crime rather than violence

16   perpetrated by the gangs on account of a particular social

17   group.       See   id.   at       314    (noting   that   “general   crime

18   conditions”    are   not      a   protected    ground     for   asylum   and

19   withholding of removal).                In her asylum application, she

20   conceded that “[n]o one is really safe over there,” and she

21   expressed the same sentiment at her hearing, stating that

22   gangs “seek[] any opportunity to gain money the way they want,

23   or how they want to.”         She testified that the gangs targeted

                                              5
1    other    people,    including    business      owners,       her   daughter’s

2    friend, and rival gang members, and the country conditions

3    evidence reveals that gang violence and extortion affect all

4    sectors    of     society.      Beltran-De         Roque   was     “not   in   a

5    substantially different situation from anyone who has crossed

6    the gang, or who is perceived to be a threat to the gang’s

7    interests.”       In re S-E-G-, 24 I. & N. Dec. 579, 587 (B.I.A.

8    2008); see id. (finding no nexus to a protected ground when

9    “gangs    have     directed   harm    against       anyone       and   everyone

10   perceived to have interfered with, or who might present a

11   threat     to,    their    criminal       enterprises      and     territorial

12   power”).

13       Absent evidence of her familial status as one central

14   reason for her harm and fear, the criminal activity that

15   Beltran-De Roque suffered and feared is not a basis for asylum

16   or withholding of removal: “When the harm visited upon members

17   of a group is attributable to the incentives presented to

18   ordinary criminals rather than to persecution, the scales are

19   tipped    away    from    considering      those    people    a    ‘particular

20   social group.’”       Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d

21   Cir. 2007).       This nexus determination is dispositive of both

22   asylum      and      withholding          of    removal.               8 U.S.C.

23   §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

                                           6
1        As this determination is dispositive, we do not reach

2    the agency’s alternative finding that the harm Beltran-De

3    Roque experienced did not rise to the level of persecution.

4    See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

5    rule courts and agencies are not required to make findings on

6    issues the decision of which is unnecessary to the results

7    they reach.”).

8    Convention Against Torture

9        To receive protection under the CAT, an applicant must

10   “establish that it is more likely than not that . . . she

11   would be tortured if removed to the proposed country of

12   removal.”    8 C.F.R. § 1208.16(c)(2).      “Torture is defined as

13   any act by which severe pain or suffering, whether physical

14   or mental, is intentionally inflicted on a person . . . at

15   the instigation of or with the consent or acquiescence of a

16   public    official   or   other   person   acting   in    an   official

17   capacity.”      8    C.F.R.   §   1208.18(a)(1);    see   Khouzam   v.

18   Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

19       Substantial evidence supports the agency’s denial of CAT

20   relief.     There is no evidence that the gang members remain

21   interested in Beltran-De Roque or are more likely than not to

22   torture her in the future.        She was not tortured in the past.

23   See 8 C.F.R. § 1208.16(c)(3)(i) (noting that “[e]vidence of

                                         7
1    past torture inflicted upon the applicant” is a factor in CAT

2    analysis).         Although     she     presented      country   conditions

3    evidence     of     pervasive     gang        violence,    there      is   no

4    particularized evidence that she would more likely than not

5    be targeted for harm constituting torture.                See Mu-Xing Wang

6    v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (“[W]hile Wang’s

7    testimony    as    well   as    some    of    his    ‘country    conditions’

8    documents . . . indicate that some prisoners in China have

9    been tortured, Wang has in no way established that someone in

10   his particular alleged circumstances is more likely than not

11   to be tortured if imprisoned in China.”); see also Mu Xiang

12   Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005)

13   (requiring “particularized evidence” beyond general country

14   conditions to support a CAT claim).                 And she has not argued

15   or   presented      evidence     that       Salvadoran    officials    would

16   acquiesce in her torture.               See 8 C.F.R. § 1208.18(a)(1).

17   Given the lack of particularized evidence that Beltran-De

18   Roque would be targeted, subjected to harm amounting to

19   torture, or that the authorities would acquiesce in such

20   torture, substantial evidence supports the agency’s denial of

21   CAT relief.       See Savchuck v. Mukasey, 518 F.3d 119, 123 (2d

22   Cir. 2008) (“[A]n alien will never be able to show that [s]he

23   faces a more likely than not chance of torture if one link in

                                             8
1    the chain cannot be shown to be more likely than not to

2    occur.” (quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4

3    (AG 2006))).

4        For the foregoing reasons, the petition for review is

5    DENIED.    As we have completed our review, any stay of removal

6    that the Court previously granted in this petition is VACATED,

7    and any pending motion for a stay of removal in this petition

8    is DISMISSED as moot.    Any pending request for oral argument

9    in this petition is DENIED in accordance with Federal Rule of

10   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe
14                                 Clerk of Court
15




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