     17-275
     Castillo-Garcia v. Sessions
                                                                                  BIA
                                                                          A089 082 710

                               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 25th day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   WILLIAMS CASTILLO-GARCIA, AKA
14   WILLIAMS CASTILLO,
15            Petitioner,
16
17                      v.                                       17-275
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Michael P. Diraimondo, Melville,
25                                        NY.
26
27   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
28                                        Attorney General; Claire L.
29                                        Workman, Jessica E. Burns, Senior
30                                        Litigation Counsel, Office of
31                                        Immigration Litigation, United
1                              States Department of Justice,
2                              Washington, DC.
3
4        UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8        Petitioner Williams Castillo-Garcia, a native and

9    citizen of Honduras, seeks review of a December 29, 2016,

10   decision of the BIA denying his motion to reopen.      In re

11   Williams Castillo-Garcia, No. A 089 082 710 (B.I.A. Dec. 29,

12   2016).   We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       We have reviewed the BIA’s denial of Castillo-Garcia’s

15   motion to reopen for abuse of discretion.   Ali v. Gonzales,

16   448 F.3d 515, 517 (2d Cir. 2006).   Motions to reopen,

17   including those based on ineffective assistance of counsel

18   or changed country conditions, must establish the movant’s

19   prima facie eligibility for any relief sought.   See INS v.

20   Abudu, 485 U.S. 94, 104 (1988); Poradisova v. Gonzales, 420

21   F.3d 70, 78 (2d Cir. 2005) (changed country conditions);

22   Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (ineffective

23   assistance).   The BIA did not abuse its discretion in

24   denying reopening because Castillo-Garcia did not establish

                                   2
1    his prima facie eligibility for asylum, withholding of

2    removal, or CAT relief.

3    I.   Asylum and Withholding of Removal

4         For asylum and withholding of removal, an “applicant

5    must establish that race, religion, nationality, membership

6    in a particular social group, or political opinion was or

7    will be at least one central reason for” the claimed

8    persecution.   8 U.S.C. §§ 1158(b)(1)(B)(i) (asylum),

9    1231(b)(3)(A) (withholding); Matter of C-T-L, 25 I. & N.

10   Dec. 341, 346 (B.I.A. 2010) (extending “one central reason”

11   standard to withholding of removal).

12        To constitute a particular social group, a group must

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

14   characteristic, (2) defined with particularity, and

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

16   Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).

17   To be “defined with particularity,” the group must be

18   “‘discrete and have definable boundaries—it must not be

19   amorphous, overbroad, diffuse, or subjective.’”   Paloka v.

20   Holder, 762 F.3d 191, 196 (2d Cir. 2014) (quoting Matter of

21   M-E-V-G-, 26 I. & N. Dec. at 239).   And, “[t]o be socially

22   distinct, a group . . . must be perceived as a group by

23   society.”   Matter of M-E-V-G-, 26 I. & N. Dec. at 240.
                                   3
1        Castillo-Garcia argues that his particular social group

2    is defined by “his defiance of the gangs before he fled

3    Honduras, as a young man targeted for recruitment, and

4    extortion.”   Pet.’s Br. at 12. We have previously upheld

5    the agency’s conclusion that materially indistinguishable

6    groups fail to meet the particularity and social

7    distinction requirements “where, as here, a petitioner

8    fails to offer evidence that individuals who oppose forced

9    gang recruitment are viewed by the relevant society as a

10   distinct group and the record is devoid of documentary

11   evidence discussing the treatment of such individuals as

12   compared to the rest of the relevant country’s population.”

13   Morquecho-Saico v. Sessions, 696 F. App’x 34, 36 (2d Cir.

14   2017).   Castillo-Garcia’s country conditions evidence

15   describes violence by gangs against the general population

16   without distinguishing the treatment of young men.     See

17   Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)

18   (“When the harm visited upon members of a group is

19   attributable to the incentives presented to ordinary

20   criminals rather than to persecution, the scales are tipped

21   away from considering those people a ‘particular social

22   group.’”); Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d

23   Cir. 1999) (noting that “general crime conditions” do not
                                   4
1    constitute persecution on account of a protected ground).

2 II.    CAT Relief

3        To demonstrate eligibility for CAT relief, an applicant

4    must show “that it is more likely than not that he . . .

5    would be tortured” in his country of removal.    8 C.F.R.

6    § 1208.16(c)(2).   Torture is defined as harm “inflicted by

7    or at the instigation of or with the consent or

8    acquiescence of a public official or other person acting in

9    an official capacity.”   8 C.F.R. § 1208.18(a)(1); see also

10   id. § 1208.18(a)(7) (defining “acquiescence”).

11       The BIA did not abuse its discretion when it concluded

12   that Castillo-Garcia had not made out a prima facie case

13   for CAT relief. Castillo-Garcia has not been to Honduras

14   since 2008 and has not provided any evidence that the gang

15   members have attempted to contact him or his family

16   members, who remain in Honduras.   Nor does he cite any

17   objective evidence to support the assertion that gang

18   members will remember his defiance or that officials will

19   report his return to the gangs.

20       Because Castillo-Garcia’s failure to establish his

21   prima facie eligibility for relief is dispositive, we do

22   not address the BIA’s additional conclusion that he failed

23   establish a material change in country conditions in
                                   5
1    Honduras. INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a

2    general rule courts and agencies are not required to make

3    findings on issues the decision of which is unnecessary to

4    the results they reach.”). And because Castillo-Garcia

5    cannot show an entitlement to relief on the merits, he also

6    cannot demonstrate the prejudice required to sustain an

7    ineffective assistance of counsel claim.

8        For the foregoing reasons, the petition for review is

9    DENIED.   Petitioner’s request for oral argument is DENIED

10   in accordance with Federal Rule of Appellate Procedure

11   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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