    19-3939
    Remy v. Barr
                                                                                   BIA
                                                                             Leonard, IJ
                                                                           A023 725 667
                        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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 20th day of August, two thousand twenty.

    PRESENT:
             PETER W. HALL,
             JOSEPH F. BIANCO,
             WILLIAM J. NARDINI,
                  Circuit Judges.
    _____________________________________

    ANTONIO ESPINOZA REMY,
             Petitioner,

                   v.                                            19-3939
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Robert F. Graziano, Buffalo, NY.

    FOR RESPONDENT:                   Ethan P. Davis, Acting Assistant
                                      Attorney General; Sabatino F. Leo,
                                      Senior Litigation Counsel; Andrew
                                      B. Insenga, Trial Attorney, Office
                                      of Immigration Litigation, United
                                      States Department of Justice,
                                      Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Antonio Espinoza Remy, a native and citizen

of Nicaragua, seeks review of an October 24, 2019, decision

of an Immigration Judge (“IJ”) affirming an asylum officer’s

negative   reasonable      fear   determination.     In     re   Antonio

Espinoza Remy, No. A023 725 667 (Immig. Ct. Batavia Oct. 24,

2019).       We   assume   the    parties’    familiarity    with    the

underlying facts and procedural history.

    The sole issue before this Court is whether the IJ erred

in affirming an asylum officer’s determination that Remy did

not establish a reasonable fear of persecution or torture in

Nicaragua.    The standard of review applicable to a reasonable

fear determination is an open question in this Court.               Other

circuits have held that the usual standards applicable to

review of removal proceedings apply or have applied those

standards without discussion.           See Andrade-Garcia v. Lynch,

828 F.3d 829, 835–36 (9th Cir. 2016); see also Lara-Nieto v.

Barr, 945 F.3d 1054, 1060 (8th Cir. 2019) (declining to reach

issue because petition failed under standard more favorable

to petitioner); Hernandez-Aquino v. Barr, 770 F. App’x 88, 88
                                    2
n.2      (4th    Cir.    2019)    (same); Telles       v.        Lynch, 639    F.

App’x 658,       662    (1st   Cir.   2016)   (same).        The     Government

asserts that we should apply a more deferential “facially

legitimate and bona fide reason” standard.                         We need not

resolve that issue here because Remy’s petition fails even

under      the    more     generous     standards.           See     8   U.S.C.

§ 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir.     2009)    (reviewing      factual     findings      for     substantial

evidence and question of law and application of law to fact

de novo).        As the asylum officer and IJ concluded, Remy did

not establish a nexus to a protected ground or a reasonable

fear of torture.

    A. Withholding of Removal

       In order to demonstrate eligibility for withholding of

removal, “the applicant must establish that race, religion,

nationality, membership in a particular social group, or

political opinion was or will be at least one central reason

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

see also id. § 1231(b)(3)(A); Matter of J-B-N- and S-M-, 24

I. & N. Dec. 208, 211 (B.I.A. 2007); Matter of C-T-L-, 25 I.

&   N.    Dec.   341,    346-48   (B.I.A.     2010).        To    constitute   a

particular social group, a group must be: “(1) composed of

members who share a common immutable characteristic, (2)
                                       3
defined with particularity, and (3) socially distinct within

the society in question.”       Matter of M-E-V-G-, 26 I. & N.

Dec. 227, 237 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey,

509 F.3d 70, 72–74 (2d Cir. 2007).      There may be “more than

one motive for mistreatment, as long as at least one central

reason for the mistreatment is on account of a protected

ground.”   Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014)

(internal quotation marks and citations omitted).

    Remy failed to provide any evidence of a nexus.            Remy

speculated that police officers searched for him in 1993 when

he was deported from the United States because he had opposed

joining the military ten years earlier when he was twelve

years old.   But Remy did not assert that the police officers

threatened him or said anything to make him believe they were

searching for him due to his prior opposition to recruitment

into the military, and he testified that the police look for

everyone   who   returns   to   Nicaragua.   He   thus   did   not

demonstrate that his political opinion or membership in a

social group of individuals opposed to joining the military

was a reason that he was sought by the police.     See 8 U.S.C.

§ 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A).

  B. CAT

    Substantial evidence also supports the IJ’s finding that
                                 4
Remy had not established a reasonable fear of torture.                              An

applicant for CAT relief must show that “it is more likely

than not” that he will be tortured but need not show any

connection      to    a      protected       ground.            See       8    C.F.R.

§ 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d

Cir. 2004).     “Torture is defined as any act by which severe

pain     or   suffering,          whether    physical       or        mental,      is

intentionally inflicted . . . by or at the instigation of or

with the consent or acquiescence of a public official or other

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

§ 1208.18(a)(1).           In assessing the likelihood of torture,

“all evidence relevant to the possibility of future torture

shall be considered, including, but not limited to . . .

[e]vidence of past torture,” the possibility of relocation

within the country, “[e]vidence of gross, flagrant or mass

violations     of    human    rights     .   .   .   and    .    .    .       relevant

information regarding conditions in the country of removal.”

8 C.F.R. § 1208.16(c)(3).

       There is insufficient evidence to support Remy’s fear of

torture.      See 8 C.F.R. § 1208.18(a)(1).                The only evidence

is a State Department report noting widespread corruption,

torture of some detainees, and government sanctioned violence

against citizens who engaged in civic actions or opposition
                                       5
to the government.         The report did not discuss the treatment

of   individuals     who      opposed    joining         the   military      decades

earlier or of returning deportees.                       See Mu-Xing Wang v.

Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (requiring evidence

“that     someone        in     [petitioner’s]            particular         alleged

circumstances      is    more    likely       than    not      to    be    tortured”

(emphasis omitted)); see also Mu Xiang Lin v. U.S. Dep’t of

Justice,    432    F.3d       156,   160      (2d    Cir.      2005)       (requiring

“particularized evidence” beyond general country conditions

to support a CAT claim).             Additionally, Remy testified that

the police looked for him only for one week in 1993 and he

was able to stay at his mother’s and her friends’ farm for

approximately      six     months    without        harm,      and    thus    had   no

evidence that he was likely to suffer any harm, much less

harm rising to the level of torture.                 While he testified that

he fears retaliation, he did not provide any testimony or

country    conditions         evidence       to   show    that       deportees      are

targeted   or     that    the    Nicaraguan         government        is    targeting

people who opposed joining the military as children in the

1980s.

     We do not reach Remy’s allegation that he may suffer

economic persecution because he did not raise that issue

before either the asylum officer or the IJ.                          See Lin Zhong
                                         6
v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007)

(judicial review is limited to “those issues that formed the

basis for [the agency’s] decision”).

    For the foregoing reasons, the petition for review is

DENIED.   The temporary stay of removal previously granted is

VACATED and Petitioner’s motion for a stay of removal and the

Government’s motions to expedite are DENIED as moot.

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




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