     15-1908
     Gomez-Ramos v. Sessions
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A200 562 109

                           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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of March, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            REENA RAGGI,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   CARLOS EUSTAQUIO GOMEZ-RAMOS,
14            Petitioner,
15
16                    v.                                             15-1908
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.*
21   _____________________________________
22
23
24
25
26
27

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jefferson B. Sessions, III, is automatically substituted for
     former Attorney General Loretta E. Lynch as Respondent.
 1   FOR PETITIONER:             Jose Perez, Syracuse, N.Y.
 2
 3   FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
 4                              Assistant Attorney General; Terri J.
 5                              Scadron, Assistant Director; Greg D.
 6                              Mack, Senior Litigation Counsel,
 7                              Office of Immigration Litigation,
 8                              United States Department of Justice,
 9                              Washington, D.C.
10
11        UPON DUE CONSIDERATION of this petition for review of a

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

13   ORDERED, ADJUDGED, AND DECREED that the petition for review is

14   DENIED.

15        Petitioner Carlos Eustaquio Gomez-Ramos, a native and

16   citizen of Guatemala, seeks review of the BIA’s May 13, 2015

17   decision affirming the Immigration Judge’s (“IJ”) September 13,

18   2013 denial of his application for asylum, withholding of

19   removal, and relief under the Convention Against Torture

20   (“CAT”).   In re Carlos Eustaquio Gomez-Ramos, No. A200 562 109

21   (B.I.A. May 13, 2015), aff’g No. A200 562 109 (Immig. Ct. Buffalo

22   Sept. 13, 2013).   We assume the parties’ familiarity with the

23   underlying facts and procedural history in this case.

24       Under the circumstances of this case, we have reviewed the

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

26   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      The applicable

27   standards of review are well established.          See 8 U.S.C.

28   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

                                     2
1    Cir. 2009); Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).

2    Gomez-Ramos does not raise any challenges to the agency’s

3    pretermission of asylum, nor does he adequately challenge the

4    agency’s denial of CAT relief.            Accordingly, we decline to

5    reach those determinations.        See Norton v. Sam’s Club, 145 F.3d

6    114, 117 (2d Cir. 1998).           We also decline to consider his

7    unexhausted due process argument.          Lin Zhong v. U.S. Dep’t of

8    Justice, 480 F.3d 104, 123-25 (2d Cir. 2007).         We address below

9    Gomez-Ramos’s challenge to the agency’s determination that he

10   failed to establish that the persecution he suffered had a nexus

11   to a protected ground and its denial of a continuance.

12     I.     Nexus/Particular Social Group

13          The agency reasonably concluded that Gomez-Ramos failed to

14   establish a nexus to a protected ground.          In order to establish

15   eligibility for asylum and withholding of removal based on

16   membership in a particular social group, an applicant must

17   establish    that   members   of    the   group   “share   some   common

18   characteristic that members ‘either cannot change, or should

19   not be required to change because it is fundamental to their

20   individual identities or consciences,’” see Ucelo-Gomez v.

21   Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (per curiam) (quoting

22   In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (B.I.A. 2007)),

23   and that the applicant has suffered past persecution or has

                                         3
1    demonstrated a well-founded fear of future persecution on

2    account of his membership in that group, see Castro v. Holder,

3    597 F.3d 93, 100 (2d Cir. 2010).          A particular social group is

4    cognizable if, among other things, it refers to “a discrete

5    class   of   persons”   and   “the       relevant   society   perceives,

6    considers, or recognizes the group as a distinct social group.”

7    Matter of W-G-R-, 26 I. & N. Dec. 208, 210, 217 (B.I.A. 2014)

8    (citations omitted); see Paloka v. Holder, 762 F.3d 191, 195

9    (2d Cir. 2014) (deferring to BIA’s construction of “particular

10   social group”).    “[I]n determining particularity and social

11   distinction[,] what matters is whether society as a whole views

12   a group as socially distinct, not the persecutor’s perception.”

13   Paloka, 762 F.3d at 196 (citing In re M-E-V-G-, 26 I. & N. Dec.

14   227, 242 (B.I.A. 2014)).

15       Gomez-Ramos argues that he identified a cognizable social

16   group—“young Guatemalan[] migrant workers that live in the

17   United States and have family in Guatemala, who they regularly

18   support financially”—and asserts generally that this group

19   satisfies the criteria set forth in M-E-V-G- and W-G-R-.            The

20   BIA applied the correct criteria and concluded that Gomez-Ramos

21   did not demonstrate that his proposed social group possessed

22   the requisite social distinction.           The record supports that

23   conclusion.    Gomez-Ramos testified that the gang members who

                                          4
1    kidnapped his sister, and who continue to threaten his family,

2    perceive him as wealthy because he lives in the United States

3    and built a house in Guatemala; however, he offered no testimony

4    or evidence that “society as a whole” views his purported group

5    as socially distinct.   See Paloka, 762 F.3d at 196.    Moreover,

6    we have previously held that “wealth or affluence is simply too

7    subjective, inchoate, and variable to provide the sole basis

8    for membership in a particular social group.”     Ucelo-Gomez, 509

9    F.3d at 73-74 (quoting In re A-M-E-, 24 I. & N. at 76).

10   Accordingly, the agency did not err in denying asylum and

11   withholding of removal for lack of nexus between the harm feared

12   and a protected ground.

13     II. Continuance Denial

14        We review the IJ’s denial of a continuance “under a highly

15   deferential standard of abuse of discretion.”     Morgan, 445 F.3d

16   at 551 (citation omitted).          Here, there was no abuse of

17   discretion.   An IJ “may grant a motion for continuance for good

18   cause shown,” 8 C.F.R. § 1003.29, which may be shown by “a

19   diligent good faith effort to be ready to proceed and that any

20   additional evidence [the movant] seeks to present is probative,

21   noncumulative, and significantly favorable to [him],” In re

22   Sibrun, 18 I. & N. Dec. 354, 356 (B.I.A. 1983).   An IJ’s decision

23   denying a motion for continuance will not be reversed by the
                                     5
1    BIA unless   the movant “establishes that [the] denial caused

2    him actual prejudice and harm and materially affected the

3    outcome” of the case.      Id. at 356-57.

4        Here, the IJ did not abuse his discretion in concluding that

5    Gomez-Ramos failed to meet this standard.     See Morgan, 445 F.3d

6    at 551-52.   On December 19, 2012, the IJ granted Gomez-Ramos

7    seven months, until July 8, 2013, to submit documents in support

8    of his application.    Gomez-Ramos contends that he made a good

9    faith effort to ensure that these documents would be translated

10   by July 8, 2013, but that the two translation companies he

11   retained did not prepare the translations by this date.           The

12   alleged   delay   caused   by   these   translation   companies   is

13   insufficient to show diligence because it does not explain why,

14   after receiving two continuances totaling eighteen months to

15   file his application, and an additional seven months to submit

16   evidence, he still failed to secure the translations.       See In

17   re Sibrun, 18 I. & N. at 357.     Nor can he show prejudice given

18   that the untranslated documents do not relate to establishing

19   a cognizable social group.

20       For the foregoing reasons, the petition for review is

21   DENIED.   Petitioner’s request for oral argument in this

22



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1   petition is DENIED in accordance with Federal Rule of Appellate

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

3                                FOR THE COURT:
4                                Catherine O’Hagan Wolfe, Clerk




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