     17-919
     Arevalo-Callejas v. Whitaker
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A094 829 807
                              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 28th day of November, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10            RICHARD C. WESLEY,
11                 Circuit Judges.
12   _____________________________________
13
14   LUDWIN ELEAZAR AREVALO-CALLEJAS,
15   AKA LUDWIN AREVALO,
16            Petitioner,
17
18                      v.                                       17-919
19                                                               NAC
20   MATTHEW G. WHITAKER,
21   ACTING UNITED STATES ATTORNEY
22   GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                     Daniel A. McLaughlin, Sidley
27                                       Austin LLP, New York, NY.
28
29   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
30                                       Attorney General; Cindy S.
31                                       Ferrier, Assistant Director;
32                                       Brendan P. Hogan, Attorney, Office
33                                       of 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 Ludwin Eleazar Arevalo-Callejas, a native

9    and citizen of El Salvador, seeks review of a March 23,

10   2017, decision of the BIA affirming a November 17, 2016,

11   decision of an Immigration Judge (“IJ”) denying Arevalo-

12   Callejas’s application for asylum, withholding of removal,

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

14   In re Ludwin Eleazar Arevalo-Callejas, No. A094 829 807

15   (B.I.A. Mar. 23, 2017), aff’g No. A094 829 807      (Immig. Ct.

16   Hartford Nov. 17, 2016).   We assume the parties’

17   familiarity with the underlying facts and procedural

18   history in this case.

19       Under the circumstances of this case, we have reviewed

20   the IJ’s decision as supplemented by the BIA.    Wala v.

21   Mukasey, 511 F.3d 102, 105 (2d Cir. 2007).   We review the

22   agency’s factual findings for substantial evidence, 8


                                   2
1    U.S.C. § 1252(b)(4)(B); Edimo-Doualla v. Gonzales, 464 F.3d

2    276, 281-83 (2d Cir. 2006); Joaquin-Porras v. Gonzales, 435

3    F.3d 172, 181 (2d Cir. 2006), and questions of law de novo,

4    Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).

5    I.   Asylum & Withholding of Removal

6         For both asylum and withholding of removal, an

7    “applicant must establish that race, religion, nationality,

8    membership in a particular social group, or political

9    opinion was or will be at least one central reason for

10   persecuting the applicant.”   8 U.S.C. § 1158(b)(1)(B)(i)

11   (asylum); id. § 1231(b)(3)(A) (withholding); see also

12   Matter of C-T-L, 25 I. & N. Dec. 341, 346 (B.I.A. 2010)

13   (holding that the “one central reason” standard also

14   applies to withholding of removal).    We need not consider

15   whether tattooed individuals who may be perceived as gang

16   members in El Salvador is a cognizable social group;

17   Arevalo-Callejas did not demonstrate that he would be

18   targeted for harm on account of his membership in such a

19   group.   See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

20   Arevalo-Callejas alleged that he would be mistaken for a

21   gang member. But his tattoos are not gang related; he lacks

                                   3
1    personal knowledge because he left El Salvador as a child;

2    and he did not provide any country conditions evidence to

3    establish that his fear is well-founded.      Neither the

4    country reports considered by the IJ nor the evidence

5    Arevalo-Callejas submitted on appeal state that individuals

6    with non-gang-related tattoos are perceived as gang members

7    or targeted by either the police or gangs.*      Although some

8    of the articles discuss indiscriminate arrests and violence

9    by the police against suspected gang members and that

10   current and former gang members may be identified by gang

11   tattoos, these articles do not discuss the significance of

12   non-gang tattoos.    The country reports confirm that there

13   are rampant levels of gang violence against many sectors of

14   the Salvadoran population, but these “general crime



     * The BIA did not err in declining to consider the evidence
     Arevalo-Callejas submitted for the first time on appeal because he
     did not move to remand as required by regulation.         8 C.F.R.
     § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot
     properly resolve an appeal without further factfinding must file
     a motion for remand”); see also Matter of Fedorenko, 19 I. & N.
     Dec. 57, 74 (B.I.A. 1984) (recognizing that, as an appellate body,
     the BIA may decline to review evidence proffered for the first
     time on appeal). Additionally, as discussed herein, the evidence
     Arevalo-Callejas submitted would not change the outcome of his
     case. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir.
     2008)

                                     4
1    conditions” do not constitute persecution on account of a

2    protected ground.   Melgar de Torres v. Reno, 191 F.3d 307,

3    314 (2d Cir. 1999); cf. Ucelo-Gomez v. Mukasey, 509 F.3d

4    70, 73 (2d Cir. 2007) (“When the harm visited upon members

5    of a group is attributable to the incentives presented to

6    ordinary criminals rather than to persecution, the scales

7    are tipped away from considering those people a ‘particular

8    social group’ . . . .”).

9        Given the lack of evidence that Arevalo would be

10   targeted or harmed on account of his tattoos, substantial

11   evidence supports the agency’s denial of asylum and

12   withholding of removal.    See 8 U.S.C. §§ 1158(b)(1)(B)(i),

13   1231(b)(3)(A).   Because the burden finding is dispositive

14   of asylum, we need not reach the IJ’s alternative bases for

15   denying that form of relief.       See INS v. Bagamasbad, 429

16   U.S. 24, 25 (1976) (“As a general rule courts and agencies

17   are not required to make findings on issues the decision of

18   which is unnecessary to the results they reach.”).

19 II.   CAT Relief

20       There is no nexus requirement for CAT relief.      “[T]he

21   CAT expressly prohibits the United States from returning

                                    5
1    any person to a country in which it is more likely than not

2    that he or she would be in danger of being subjected to

3    torture.”    Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.

4    2004) (quotation marks omitted).   “Torture is defined as

5    any act by which severe pain or suffering . . . is

6    intentionally inflicted on a person . . . by or at the

7    instigation of or with the consent or acquiescence of a

8    public official or other person acting in an official

9    capacity.”    8 C.F.R. § 1208.18(a)(1).   Acquiescence, in

10   turn, “requires that the public official, prior to the

11   activity constituting torture, have awareness of such

12   activity and thereafter breach his or her legal

13   responsibility to intervene to prevent such activity.”       8

14   C.F.R. § 1208.18(a)(7); see Khouzam, 361 F.3d at 170-71.

15       Arevalo-Callejas had the burden of demonstrating a

16   likelihood of torture in his particular circumstances, and

17   his failure to present any evidence that he would be

18   targeted for his tattoos or for any other reason (aside

19   from the generally violent country conditions) precludes

20   CAT relief.    See 8 C.F.R. § 1208.18(a)(1); Mu-Xing Wang v.

21   Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (alien must show

                                    6
1    a likelihood of torture in “his particular alleged

2    circumstances”).

3        For the foregoing reasons, the petition for review is

4    DENIED.    As we have completed our review, the stay of

5    removal that the Court previously granted in this petition

6    is VACATED.   The pending request for oral argument in this

7    petition is DENIED in accordance with Federal Rule of

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

9    34.1(b).

10                                FOR THE COURT:
11                                Catherine O’Hagan Wolfe,
12                                Clerk of Court




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