     17-1803
     Giron-Ardon v. Barr
                                                                                   BIA
                                                                            Montante, IJ
                                                                       A206 635 986/987

                            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 22nd day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   ANDRIANA LISSETTE GIRON-ARDON, AKA
14   ADRIANA LISSETTE GIRON-ARDON, IVANA
15   MARIA DE JESUS GIRON-ARDON
16            Petitioners,
17
18                     v.                                        17-1803
19                                                               NAC
20   WILLIAM P. BARR
21   UNITED STATES ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONERS:                  Stephen K. Tills, Orchard Park,
26                                     NY.
27
28   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
29                                     Attorney General; Justin R.
30                                     Markel, Senior Litigation Counsel;
31                                     Brooke M. Maurer, Trial Attorney,
1                                     Office of Immigration Litigation,
2                                     United States Department of
3                                     Justice, Washington, DC.
4
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 DISMISSED in part and DENIED in part.

9          Petitioners     Andriana     Lissette     Giron-Ardon     (“Giron-

10   Ardon”), and her minor daughter, Ivana Maria De Jesus Giron-

11   Ardon, natives and citizens of Guatemala, seek review of a

12   May 9, 2017 decision of the BIA affirming an October 18, 2016,

13   decision   of    an   Immigration       Judge   (“IJ”)   denying    their

14   applications for asylum, withholding of removal, and relief

15   under the Convention Against Torture (“CAT”).            In re Andriana

16   Lissette Giron-Ardon and Ivana Maria De Jesus Giron-Ardon,

17   Nos. A 206 635 986/987 (B.I.A. May 9, 2017), aff’g Nos. A 206

18   635 986/987 (Immig. Ct. Buffalo Oct. 18, 2016).               We assume

19   the   parties’      familiarity     with    the    underlying      facts,

20   procedural history, and issues raised on appeal.

21         Giron-Ardon challenges the agency’s denial of asylum as

22   time barred and its denial of withholding of removal for

23   failure to establish a nexus to a protected ground.                 Under

24   the circumstances of this case, we have considered the IJ’s

                                         2
1    decision as supplemented and modified by the BIA.       See Yan

2    Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).          The

3    applicable standards of review are well established.         See

4    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

5    510, 513 (2d Cir. 2009).    We review the agency’s findings of

6    fact under the substantial evidence standard.      See Hong Fei

7    Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).      Under this

8    standard, “[w]e treat factual findings as ‘conclusive unless

9    any reasonable adjudicator would be compelled to conclude to

10   the contrary.’”   Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

11   Timeliness of Asylum Application

12       We dismiss the petition as to asylum.        Giron-Ardon did

13   not exhaust her challenge to the timeliness finding on appeal

14   to the BIA.   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

15   104, 123 (2d Cir. 2008) (holding that issue exhaustion is

16   mandatory).   Moreover, our jurisdiction to review the denial

17   of an asylum claim as untimely is limited to “constitutional

18   claims or questions of law.”       8 U.S.C. § 1252(a)(2)(D); see

19   8 U.S.C. § 1158(a)(3).     Giron-Ardon has not identified any

20   such claims, as she argues only that the agency ignored

21   evidence that she filed her application in April 2015.     There



                                    3
 1   is no legal error here, particularly as the agency considered

 2   the application to be filed earlier, on March 27, 2015.

 3   Nexus to a Protected Ground

 4       In order to demonstrate eligibility for withholding of

 5   removal, Giron-Ardon must establish that “race, religion,

 6   nationality, membership in a particular social group, or

 7   political opinion” was or will be at least one central reason

 8   for her persecution.     8 U.S.C. § 1231(b)(3)(A); see also

 9   Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010).

10   There may be “more than one motive for mistreatment, as long

11   as at least one central reason for the mistreatment is on

12   account of a protected ground.”   Acharya v. Holder, 761 F.3d

13   289, 297 (2d Cir. 2014) (internal quotation marks omitted).

14   An applicant “must provide some evidence of [a persecutor’s

15   motives], direct or circumstantial.”    INS v. Elias-Zacarias,

16   502 U.S. 478, 483 (1992); see also Manzur v. U.S. Dep’t of

17   Homeland Sec., 494 F.3d 281, 291 (2d Cir. 2007).   The agency’s

18   findings regarding the persecutor’s motives and the nexus

19   between the harms and a petitioner’s protected status are

20   reviewed for substantial evidence.     See Gjolaj v. Bureau of

21   Citizenship & Immigration Servs., 468 F.3d 140, 143 (2d Cir.

22   2006).

                                   4
1          Giron-Ardon sought asylum and withholding of removal

2    based on her membership in the social groups of “cattle-

3    farmers/ranchers” (as argued to the BIA) or family (as implied

4    in her brief to this Court).   Even assuming that these groups

5    are   cognizable   social   groups,   the   agency   reasonably

6    determined that Giron-Ardon failed to demonstrate that she

7    suffered past persecution or a well-founded fear of future

8    persecution on account of her membership in these groups since

9    she failed to provide any direct or circumstantial evidence

10   that she was or will be targeted for either reason.        See

11   Elias-Zacarias, 502 U.S. at 483; see also Ucelo-Gomez v.

12   Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm

13   visited upon members of a group is attributable to the

14   incentives presented to ordinary criminals rather than to

15   persecution, the scales are tipped away from considering

16   those people a ‘particular social group’. . . .”).      Giron-

17   Ardon testified that unknown persons whom she presumed were

18   gang members murdered her brother, threatened her sisters

19   over the phone, threatened one sister in person, shot at her

20   and her daughter, robbed her at knifepoint, threatened her

21   partner and his family, and killed some of her partner’s

22   family. But she did not testify that the same individuals

                                    5
1    were responsible for all of the harm or that the perpetrators

2    said anything to her and her family from which to infer that

3    they were being targeted on account of their status as cattle-

4    farmers and ranchers.        While she testified that the people

5    who threatened her sister said they would kill her brother

6    and other family members, Giron-Ardon said that she did not

7    know if those people were the same ones who threatened her.

8    Giron-Ardon never received threats on the phone, and when she

9    experienced direct harm (the robbery and the shooting), the

10   assailants did not mention her familial ties when targeting

11   her.     Because Giron-Ardon failed to demonstrate a nexus

12   between her harm or fear of harm and a protected ground, the

13   agency    did   not   err   in   denying   withholding   of   removal.

14   8 U.S.C. § 1231(b)(3)(A).         Ultimately, Giron-Ardon’s fears

15   stem from general crime conditions in Guatemala, and are not

16   due to some protected status.

17          For the foregoing reasons, the petition for review is

18   DISMISSED in part and DENIED in remaining part.           As we have

19   completed our review, any stay of removal that the Court

20   previously granted in this petition is VACATED, and any

21   pending motion for a stay of removal in this petition is

22   DISMISSED as moot.      Any pending request for oral argument in

                                         6
1   this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe
6                              Clerk of Court




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