     15-37
     Yucra-Santi v. Lynch
                                                                                        BIA
                                                                                 Verrillo, IJ
                                                                               A200 689 365
                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MAXIMO ALEJANDRO YUCRA-SANTI, AKA
14   ALEJANDRO JIMINEZ-SANTI,
15
16                           Petitioner,
17
18                     v.                                            15-37
19                                                                   NAC
20
21   LORETTA E. LYNCH, UNITED STATES
22   ATTORNEY GENERAL,
23
24                 Respondent.
25   _____________________________________
26
27   FOR PETITIONER:                       Elyssa N. Williams; Glenn L.
28                                         Formica, Formica Williams, P.C.,
29                                         New Haven, Connecticut.
 1   FOR RESPONDENT:                 Benjamin C. Mizer, Principal
 2                                   Deputy Assistant Attorney
 3                                   General; John S. Hogan, Assistant
 4                                   Director; Robbin K. Blaya, Trial
 5                                   Attorney, Office of Immigration
 6                                   Litigation, United States
 7                                   Department of Justice,
 8                                   Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

12   ORDERED, ADJUDGED, AND DECREED that the petition for review is

13   DISMISSED in part and DENIED in part.

14       Petitioner Maximo Alejandro Yucra-Santi, a native and

15   citizen of Peru, seeks review of a December 9, 2014, decision

16   of the BIA, affirming a May 3, 2013, decision of an Immigration

17   Judge (“IJ”) denying Yucra-Santi’s application for asylum,

18   withholding of removal, and relief under the Convention Against

19   Torture (“CAT”).     In re Maximo Alejandro Yucra-Santi, No. A200

20   689 365 (B.I.A. Dec. 9, 2014), aff’g No. A200 689 365 (Immig.

21   Ct. Hartford May 3, 2013).     We assume the parties’ familiarity

22   with the underlying facts and procedural history in this case.

23       As a threshold matter, we lack jurisdiction to review the

24   agency’s    denial   of    Yucra-Santi’s    asylum   application   as

25   untimely.     8   U.S.C.    § 1158(a)(3).      Although   we   retain

26   jurisdiction to review “constitutional claims or questions of

27   law,” 8 U.S.C. § 1252(a)(2)(D), Yucra-Santi challenges only the

                                       2
1    agency’s factual conclusion that there had been no material

2    change in the Shining Path’s activity.    Such a claim does not

3    present a legal challenge to the decision but “merely quarrels

4    over the correctness of the factual findings.”      Xiao Ji Chen

5    v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

6    Accordingly, we review only the agency’s denial of withholding

7    of removal and CAT relief.

8        Under the circumstances of this case, we have reviewed both

9    the BIA’s and IJ’s decisions “for the sake of completeness.”

10   See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d

11   Cir. 2006).   We review factual findings under the substantial

12   evidence standard, treating them as “conclusive unless any

13   reasonable adjudicator would be compelled to conclude to the

14   contrary.”    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,

15   562 F.3d 510, 513 (2d Cir. 2009).    “Questions of law, as well

16   as the application of legal principles to undisputed facts, are

17   reviewed de novo.”   Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.

18   2014).

19       To establish eligibility for withholding of removal, an

20   applicant must show past persecution, or a likelihood of future

21   persecution, and must establish that the harm was, or will be,

22   “on account of race, religion, nationality, membership in a


                                     3
1    particular social group, or political opinion.”                    8 U.S.C.

2    §§ 1101(a)(42),          1231(b)(3);       8   C.F.R.      § 1208.16(b)(2);

3    Paloka, 762 F.3d at 195.            Accordingly, an applicant has two

4    burdens: he must demonstrate either that he suffered past

5    persecution or has an objectively reasonable fear of future

6    persecution; and he must show that the persecution was, or will

7    be, on account of a protected ground.                      Ramsameachire v.

8    Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

9           Yucra-Santi asserts two social groups: witnesses of a 1984

10   attack in Antilla and his family.                 We find no error in the

11   agency’s determination that he failed to demonstrate past

12   persecution or a likelihood of future persecution on these

13   bases.

14          First, although we have recognized that a group of

15   cooperating witnesses to war crimes in Kosovo met the criteria

16   for    a    “particular    social    group,”      Yucra-Santi’s    claim   is

17   distinguishable.          Gashi v. Holder, 702 F.3d 130, 137-38 (2d

18   Cir.       2012).   In     Gashi,   the    group    shared    an   immutable

19   characteristic by having the same past experience: witnessing

20   war crimes and cooperating with investigators on the subject

21   of     those    crimes.       Id.   at     137.      The    same   immutable

22   characteristics also defined the group’s particularity because


                                            4
1    “[t]he number of persons who have given interviews to, or

2    otherwise cooperated with, official war crimes investigators

3    is   finite,    and   undoubtedly    quite    limited”    and   “[a]n

4    individual’s membership is also verifiable.”         Id.     Further,

5    the group was socially distinct to both potential persecutors

6    and the wider Kosovar society because the names of potential

7    witnesses were published on a list, people in Gashi’s village

8    knew that he had spoken to investigators and criticized him for

 9   it, and he was attacked twice and threatened.             Id.   While

10   Yucra-Santi’s    proffered   group   shares    a   past    experience

11   (witnessing terrorist atrocities in Antilla), and is finite

12   (the number of persons who witnessed the 1984 attack), he did

13   not show that it is socially distinct.          Gashi, 702 F.3d at

14   137-38.   Yucra-Santi did not present any evidence that Peruvian

15   society or the village of Antilla was aware that he was a witness

16   to the 1984 attack.      See Paloka, 762 F.3d at 196 (“[W]hat

17   matters is whether society as a whole views a group as socially

18   distinct, not the persecutor’s perception.”); see also In re

19   M–E–V–G–, 26 I. & N. Dec. 227, 242 (BIA 2014).            Instead, he

20   presented evidence that the Antilla villagers believed that he

21   was the son of terrorists, not someone who would be targeted

22   by terrorists.


                                     5
1        Nor did he show that he was targeted in the past on this

2    basis or would be targeted in the future.   The 2005 threatening

3    note did not alone constitute past persecution.   Huo Qiang Chen

4    v. Holder, 773 F.3d 396, 406 (2d Cir. 2014).         Nor was it

5    sufficient to meet his burden of showing that he would likely

6    be targeted on account of his status as a witness.    It did not

7    use his name or reference his status as a witness, and there

8    was no evidence, other than his own belief, that the note was

9    from the Shining Path.   Jian Xing Huang v. U.S. INS, 421 F.3d

10   125, 129 (2d Cir. 2005) (“In the absence of solid support in

11   the record . . . his fear is speculative at best.”).

12       Second, the agency did not err in determining that

13   Yucra-Santi failed to demonstrate that he was persecuted or

14   would be persecuted in the future on account of his relationship

15   to his immediate family.    “The BIA has long recognized that

16   ‘kinship ties’ may form a cognizable shared characteristic for

17   a particular social group.”    Vumi v. Gonzales, 502 F.3d 150,

18   155 (2d Cir. 2007).   However, while Yucra-Santi was recognized

19   by Antilla villagers in 1994 as the son of terrorists and

20   referred to as a “dead man,” the threats alone are insufficient

21   to demonstrate past harm on account of his family ties.     Huo

22   Qiang Chen, 773 F.3d at 406.   And, he did not present any other


                                    6
1    evidence that the villagers or the Shining Path meant to harm

2    him because of his ties to his family.     He alleged only that

3    the Shining Path would target him as a witness.

4        Accordingly, because Yucra-Santi did not show that he was

5    persecuted or would be persecuted on account of his membership

6    in a particular social group, the BIA did not err in denying

7    his application for withholding.   See 8 U.S.C. §§ 1101(a)(42),

8    1231(b)(3); Paloka, 762 F.3d at 195.    Although a claim for CAT

9    relief does not require any nexus to a protected ground,

10   Yucra-Santi’s CAT claim fails for largely the same reason.    He

11   did not show past harm or a likelihood of future harm on any

12   basis.   8 C.F.R. § 1208.16(c)(2) (requiring alien to show that

13   torture “is more likely than not”).    Further, he did not allege

14   that he was targeted or had reason to believe that he would be

15   targeted by or with the acquiescence of the Peruvian government

16   and spoke favorably about his two years of service in the

17   Peruvian military, during which he had no fear.     See 8 C.F.R.

18   § 1208.18(a)(1) (defining torture as “pain or suffering [that]

19   is inflicted by or at the instigation of or with the consent

20   or acquiescence of a public official or other person acting in

21   an official capacity.”).




                                    7
1        For the foregoing reasons, the petition for review is

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

3    review, any stay of removal that the Court previously granted

4    in this petition is VACATED, and any pending motion for a stay

5    of removal in this petition is DISMISSED as moot.   Any pending

6    request for oral argument in this petition is DENIED in

7    accordance with Federal Rule of Appellate Procedure 34(a)(2),

8    and Second Circuit Local Rule 34.1(b).

 9                                FOR THE COURT:
10                                Catherine O’Hagan Wolfe, Clerk




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