     17-1469
     Sandoval-Flores v. Barr
                                                                                   BIA
                                                                              Weisel, IJ
                                                                       A206 805 724/722
                               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 29th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   CLAUDIA INES SANDOVAL-FLORES,
14   YANCY PAOLA SANDOVAL-FLORES,
15            Petitioners,
16
17                      v.                                       17-1469
18                                                               NAC
19   WILLIAM P. BARR,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                     Steven Lyons, Martin C. Liu &
25                                        Associates, PLLC, New York, NY.
26
27   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
28                                        Attorney General; John S. Hogan,
29                                        Assistant Director; Robbin K.
30                                        Blaya, Trial Attorney, Office of
31                                        Immigration Litigation, United
32                                        States Department of Justice,
33                                        Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioners            Claudia    Ines     Sandoval-Flores      (“Sandoval-

6    Flores”) and Yancy Paola Sandoval-Flores, natives and citizen

7    of El Salvador, seek review of an April 6, 2017, decision of

8    the BIA affirming a July 27, 2016, decision of an Immigration

9    Judge     (“IJ”)       denying       Sandoval-Flores’s      application      for

10   asylum,     withholding        of     removal,     and    relief    under    the

11   Convention Against Torture (“CAT”).                      In re Claudia Ines

12   Sandoval-Flores, Yancy Paola Sandoval-Flores, No. A 206 805

13   724/722 (B.I.A. Apr. 6, 2017), aff’g No. A 206 805 724/722

14   (Immig. Ct. N.Y. City Jul. 27, 2016).                We assume the parties’

15   familiarity with the underlying facts and procedural history

16   in this case.

17       Under the circumstances of this case, we have reviewed

18   the IJ’s decision as supplemented by the BIA.                      See Yan Chen

19   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).                      “We review

20   the agency’s factual findings under the substantial evidence

21   standard,    .     .   .    [and]     review    legal    questions,    and   the

22   application of law to fact, de novo.”                    Gjolaj v. Bureau of
                                  2
1    Citizenship and Immig. Servs., 468 F.3d 140, 142 (2d Cir.

2    2006) (internal citations omitted).

3          Asylum and Withholding of Removal

4          For asylum and withholding of removal, an “applicant must

5    establish that race, religion, nationality, membership in a

6    particular social group, or political opinion was or will be

7    at least one central reason for” the claimed persecution.            8

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

9    review the agency’s nexus finding for substantial evidence.

10   See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Gjolaj,

11   468 F.3d at 143.       The record does not compel the conclusion

12   that MS-13’s threats against Sandoval-Flores were motivated

13   by a protected ground.        See Elias-Zacarias, 502 U.S. at 483.

14         Sandoval-Flores testified that an MS-13 member came to

15   her home and threatened to kill her and her family if she did

16   not pay a $100 monthly extortion payment.                She initially

17   testified that she believed she was targeted because she had

18   siblings who lived in the United States.            But she also stated

19   that her mother’s cousins are police officers and that,

20   because El Salvador is small country, it was possible that

21   the   gang   members   knew    of   that   family    connection.   But

22   Sandoval-Flores did not testify that the gang member who
                                         3
1    threatened    her    ever   mentioned   her    cousins   or   their

2    profession.   The anonymous letter similarly made no mention

3    of Sandoval-Flores’s cousins, her familial relationship to

4    police officers, or her relatives living in the United States.

5    As such, her testimony as to MS-13’s motives was speculative

6    and did not establish that she was or would be targeted on

7    account of any familial relationships.        See Jian Xing Huang

8    v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence

9    of solid support in the record . . . [a] fear is speculative

10   at best.”).

11   Nor could her perceived wealth establish a protected ground.

12   See Ucelo-Gomez v. Mukasey, 509 F. 3d 70, 72-74 (2d Cir. 2007)

13   (explaining that wealth or affluence is “highly relative and

14   subjective” and not an appropriate metric for a particular

15   social group).      Moreover, although the record reflects that

16   El Salvador is a violent country with pervasive gang activity,

17   neither high crime rates nor status as a crime victim alone

18   do not demonstrate a basis for asylum.        See Melgar de Torres

19   v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (explaining that

20   “general crime conditions” do not lend support to an asylum

21   claim because they are not an “enumerated ground”).           Given

22   the lack of evidence that Sandoval-Flores was singled out on
                                      4
1    account of a protected ground, the agency did not err in

2    denying   asylum   and   withholding     of   removal.    See   Elias-

3    Zacarias, 502 U.S. at 483; Gjolaj, 468 F.3d at 143.

4        The agency’s nexus finding is dispositive of Sandoval-

5    Flores’s eligibility for asylum and withholding of removal

6    irrespective of credibility.      As such, we need not reach her

7    argument that the administrative record is missing evidence

8    corroborating the incident she omitted from her application.

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

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

11   issues the decision of which is unnecessary to the results

12   they reach.”).

13       CAT Relief

14       An applicant for CAT relief must show “that it is more

15   likely than not” that she will be tortured.              See 8 C.F.R.

16   § 1208.16(c)(2); see also Khouzam v. Ashcroft, 361 F.3d 161,

17   168 (2d Cir. 2004).      To constitute torture under the CAT, the

18   likely harm must be “inflicted by or at the instigation of or

19   with the consent or acquiescence of a public official or other

20   person    acting   in    an   official    capacity.”        8   C.F.R.

21   § 1208.18(a)(1).    “Acquiescence of a public official requires

22   that the public official, prior to the activity constituting
                                       5
1    torture,   have    awareness   of   such    activity   and   thereafter

2    breach his or her legal responsibility to intervene to prevent

3    such activity.”      Id. § 1208.18(a)(7); Khouzam, 361 F.3d at

4    171 (Acquiescence occurs where “government officials know of

5    or remain willfully blind to an act and thereafter breach

6    their legal responsibility to prevent it.”).             In assessing

7    the likelihood of torture, “all evidence relevant to the

8    possibility of future torture shall be considered, including,

9    but not limited to . . . [e]vidence of past torture,” the

10   possibility of relocation within the country, “[e]vidence of

11   gross, flagrant or mass violations of human rights . . . and

12   . . . relevant information regarding conditions in the country

13   of removal.”      8 C.F.R. § 1208.16(c)(3).       To meet her burden

14   of proof, an applicant for CAT relief must establish that

15   someone in her “particular alleged circumstances” is more

16   likely than not to be tortured.            Mu-Xing Wang v. Ashcroft,

17   320 F.3d 130, 144 (2d Cir. 2003).

18          Sandoval-Flores argues that the agency ignored country

19   reports and testimony and failed to analyze the merits of her

20   claim, and that the Salvadoran government acquiesced in her

21   torture by failing to apprehend the individual who threatened

22   her.    These arguments are without merit.       First, both the BIA
                                         6
1    and IJ explicitly addressed CAT relief and concluded that

2    Sandoval-Flores failed to meet her burden.          Second, her

3    testimony demonstrated that the police acted on her complaint

4    by canvassing her neighborhood for suspects and identified

5    the perpetrator based on Sandoval-Flores’s description.        The

6    fact that the police did not arrest that individual does not

7    alone establish government acquiescence.     See Garcia-Milian

8    v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence

9    that the police were aware of a particular crime, but failed

10   to bring the perpetrators to justice, is not in itself

11   sufficient to establish acquiescence in the crime.”).     Third,

12   the record does not compellingly suggest that the agency

13   ignored   evidence.   “[W]e   do   not   demand   that   the   BIA

14   “expressly parse or refute on the record each individual

15   argument or piece of evidence offered by the petitioner,”

16   Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008),

17   and we “presume that [the agency] has taken into account all

18   the evidence before [it], unless the record compellingly

19   suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice,

20   471 F.3d 315, 336 n.17 (2d Cir. 2006).     Although the agency

21   did not explicitly address the country conditions evidence,

22   given Sandoval-Flores’s testimony about the police response
                                   7
1    and investigation of her complaint, the record does not

2    compellingly suggest that the agency ignored any evidence.

3          Denial of Remand

4          Sandoval-Flores argues that the BIA abused its discretion

5    in declining to remand for consideration of new evidence.

6    “We   review    the    BIA’s   denial   of    a   motion   to    remand   for

7    consideration of new evidence for abuse of discretion, and

8    will find such abuse if ‘the Board’s decision provides no

9    rational explanation, inexplicably departs from established

10   policies, is devoid of any reasoning, or contains only summary

11   or conclusory statements; that is to say, where the Board has

12   acted in an arbitrary or capricious manner.’”                    Li Yong Cao

13   v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005)

14   (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,

15   93 (2d Cir. 2001)).       “A motion to remand that relies on newly

16   available evidence is held to the substantive requirements of

17   a motion to reopen,” and the BIA has “broad discretion” to

18   deny “such a motion unless the movant has met the heavy burden

19   of demonstrating a likelihood that the new evidence presented

20   would alter the result in the case.”                Id. at 156 (internal

21   quotation      marks   omitted).        The   BIA   did    not    abuse   its

22   discretion in denying Sandoval Flores’s motion because the
                                         8
1    evidence would not have altered the result in her case.

2           Sandoval-Flores submitted three documents in support of

3    remand:    (1)   a   police   report   documenting   her   mother’s

4    complaint that on August 9, 2016, three MS-13 gang members

5    forced their way into her home, questioned and assaulted her,

6    and threatened to kill Sandoval-Flores; (2) an August 9, 2016,

7    medical report that her mother was treated on August 7 for

8    injuries following an attack by three men; and (3) a hospital

9    letter confirming that her mother suffered strokes on two

10   unspecified occasions.        Sandoval-Flores argues that this

11   evidence rehabilitates her credibility and corroborates her

12   fear of future persecution from MS-13.

13          Assuming arguendo that Sandoval-Flores’s new evidence

14   could rehabilitate her credibility, the BIA did not abuse its

15   discretion by concluding that the evidence would not have

16   altered the result in the case.         Li Yong Cao, 421 F.3d at

17   156.      Specifically, the agency’s nexus finding would be

18   undisturbed by the new evidence given that it is silent as to

19   MS-13’s motivation.      Nor does the new evidence alter the

20   agency’s CAT determination because there is no indication

21   that the Salvadoran government would not respond to the

22   threat.    See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
                                      9
1        Because the agency’s nexus finding is dispositive for

2    asylum and withholding of removal, and Sandoval-Flores failed

3    to meet her burden for CAT relief, we do not reach the

4    agency’s other findings.    See Bagamasbad, 429 U.S. at 25.

5        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe
15                                 Clerk of Court
16




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