     17-735 (L)
     Lemus v. Barr
                                                                                     BIA
                                                                                Wiesel, IJ
                                                                     A208 542 815/816/817

                          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
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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 13th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PETER W. HALL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MILVIA MARINA LEMUS, CHRISTHIAN
14   ESTUARDO RAGUEX-LEMUS, MARELYN
15   NATHALIA RAGUEX-LEMUS,
16            Petitioners,
17
18                   v.                                          17-735 (L),
19                                                               18-12 (Con)
20                                                               NAC
21   WILLIAM P. BARR, UNITED STATES
22   ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONERS:                 Theodore N. Cox, New York, NY.
27
28   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
29                                    Attorney General; Derek C. Julius,
30                                    Assistant Director; Margaret
31                                    Kuehne Taylor, Senior Litigation
1                              Counsel, Office of Immigration
2                              Litigation, United States
3                              Department of Justice, Washington,
4                              DC.
5
6        UPON DUE CONSIDERATION of these petitions for review of

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

8    ORDERED, ADJUDGED, AND DECREED that the petitions for review

9    are DENIED.

10       Petitioners Milvia Marina Lemus (“Lemus”), Christhian

11   Estuardo Raguex-Lemus, and Marelyn Nathalia Raguex-Lemus,

12   natives and citizens of Guatemala, seek review of both a

13   February 23, 2017 decision of the BIA reversing an August 10,

14   2016 decision of an Immigration Judge (“IJ”) granting relief

15   under the Convention Against Torture (“CAT”), In re Milvia

16   Marina Lemus et al., Nos. A 208 542 815/816/817 (B.I.A. Feb.

17   23, 2017), reversing Nos. A 208 542 815/816/817 (Immig. Ct.

18   N.Y. City Aug. 10, 2016), and a December 7, 2017 decision of

19   the BIA denying a motion to reopen based on ineffective

20   assistance of counsel, In re Milvia Marina Lemus et al., Nos.

21   A 208 542 815/816/817 (B.I.A. Dec. 7, 2017).   We assume the

22   parties’ familiarity with the underlying facts and procedural

23   history in this case.

                                  2
1    Denial of CAT Relief

2        As to the lead petition, we have reviewed the BIA’s

3    decision denying CAT relief.         See Yan Chen v. Gonzales, 417

4    F.3d 268, 271 (2d Cir. 2005).        We review factual findings for

5    substantial evidence and legal issues de novo.           See 8 U.S.C.

6    § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

7    (2nd Cir. 2009).

8        An applicant for CAT relief must show that “it is more

9    likely than not that . . . she would be tortured.”               8 C.F.R.

10   § 1208.16(c)(2); see also Khouzam v. Ashcroft, 361 F.3d 161,

11   168 (2d Cir. 2004).       To constitute torture under the CAT, the

12   harm must be “inflicted by or at the instigation of or with

13   the consent or acquiescence of a public official or other

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

15   § 1208.18(a)(1).      “Acquiescence of a public official requires

16   that the public official, prior to the activity constituting

17   torture,    have    awareness   of   such   activity   and   thereafter

18   breach his or her legal responsibility to intervene to prevent

19   such activity.”       Id. § 1208.18(a)(7); Khouzam, 361 F.3d at

20   171 (acquiescence occurs where “government officials know of

21   or remain willfully blind to an act and thereafter breach
                                          3
1    their legal responsibility to prevent it.”).                   The agency

2    considers “all evidence relevant to the possibility of future

3    torture . . . , including, but not limited to . . . [e]vidence

4    of past torture,” the possibility of relocation within the

5    country, “[e]vidence of gross, flagrant or mass violations of

6    human rights . . . and . . . relevant information regarding

7    conditions   in    the     country       of   removal.”        8    C.F.R.

8    § 1208.16(c)(3).

9        The BIA did not err in concluding that Lemus failed to

10   show that Guatemalan authorities are likely to acquiesce to

11   her torture by gang members.         See 8 C.F.R. §§ 1208.16(c)(2),

12   1208.18(a)(1).    As noted above, “acquiescence” requires that

13   government   officials    either     have     knowledge   of   or   remain

14   willfully blind to a torturous act and subsequently breach

15   their duty to act.       Khouzam, 361 F.3d at 170-71; see also 8

16   C.F.R. § 1208.18(a)(7).      Neither actual knowledge nor willful

17   blindness was established here.          Lemus testified that she was

18   threatened on three occasions by Mara 18 gang members, but

19   she conceded that she reported only the third incident to

20   police.   Even then, she did not alert the police to the prior

21   incidents, and she does not claim to have identified the
                                          4
1    alleged perpetrators or reported that they were Mara 18 gang

2    members.     Without that information, that the police told

3    Lemus that there was nothing they could do fails to establish

4    acquiescence.      See Garcia-Milian v. Holder, 755 F.3d 1026,

5    1034 (9th Cir. 2014) (“Evidence that the police were aware of

6    a particular crime, but failed to bring the perpetrators to

7    justice,     is    not   in   itself    sufficient   to    establish

8    acquiescence in the crime.”).

9        Lemus argues that the Guatemalan police were aware of

10   the fire that destroyed her home, which supports her claim of

11   acquiescence.      But Lemus admitted she was uncooperative with

12   police when they tried to investigate the fire, and she failed

13   to tell them about her suspicion of gang involvement.             Given

14   these    admissions,     Lemus   did   not   demonstrate   that     the

15   Guatemalan police knew of or were willfully blind to threats

16   from Mara 18.      Cf. Khouzam, 361 F.3d at 171.

17   Denial of Reopening

18       We review the BIA’s denial of reopening for abuse of

19   discretion.       Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

20   2006).     A “motion to reopen shall state the new facts that

21   will be proven at a hearing to be held if the motion is
                                        5
1    granted,       and   shall     be    supported       by       affidavits     or   other

2    evidentiary material.”              8 U.S.C. § 1229a(c)(7)(B).               To obtain

3    reopening      based     on    ineffective         assistance         of   counsel,    a

4    movant must comply with certain procedural requirements, and

5    must show both that counsel’s actions were unreasonable and

6    that    those    actions       caused       prejudice.          See    Debeatham      v.

7    Holder, 602 F.3d 481, 484–85 (2d Cir. 2010); Rashid v.

8    Mukasey, 533 F.3d 127, 131 (2d Cir. 2008).

9           Lemus    asserts       that    her       former    counsel’s        ineffective

10   representation resulted in the IJ’s denial of her asylum and

11   withholding of removal claims.                    She argues that if counsel

12   had defined her proposed social groups, submitted country

13   conditions evidence, and presented witness testimony, she

14   could have prevailed on those claims.                             For the reasons

15   explained       below,    Lemus’s       failure          to    show    prejudice      is

16   dispositive.         See Debeatham, 602 F.3d at 485–86.

17          In her motion to reopen, Lemus proposed three distinct

18   social groups: (1) vulnerable mothers who had been raped;

19   (2) her family; and (3) female business owners with a family

20   who have refused to comply with extortion demands.                           But even

21   if Lemus’s former counsel had identified those social groups,
                                                 6
1    Lemus’s   testimony—which    the       IJ    found   credible—did     not

2    establish that she was targeted based on her membership in

3    any of them.    Rather, as the IJ found, her testimony showed

4    that she was targeted for extortion and thus was a crime

5    victim, not someone who was persecuted on account of a

6    protected ground.     See Melgar de Torres v. Reno, 191 F.3d

7    307, 314 (2d Cir. 1999) (explaining that “general crime

8    conditions” do not lend support to an asylum claim because

9    they are not an “enumerated ground.”); see also Ucelo-Gomez

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

11   visited upon members of a group is attributable to the

12   incentives presented to ordinary criminals rather than to

13   persecution, the scales are tipped away from considering

14   those people a ‘particular social group’ within the meaning

15   of the INA.”).      Lemus’s arguments that the associate who

16   represented her at the hearing was “unprepared” and that

17   former counsel failed to appeal the IJ’s denial of asylum and

18   withholding of removal also fail because her testimony did

19   not support a claim that she was targeted on account of the

20   proposed groups or that the groups were cognizable.

21       Because    Lemus’s   failure       to   demonstrate   prejudice    is
                                        7
1    dispositive as to her motion to reopen, we do not reach her

2    remaining arguments.   See INS v. Bagamasbad, 429 U.S. 24, 25

3    (1976) (“As a general rule courts and agencies are not

4    required to make findings on issues the decision of which is

5    unnecessary to the results they reach.”).

6        For the foregoing reasons, the petitions for review are

7    DENIED.   As we have completed our review, any stays of removal

8    that the Court previously granted in these petitions are

9    VACATED, and any pending motion for stays of removal in these

10   petitions is DISMISSED as moot.    Any pending request for oral

11   argument in this petition is DENIED in accordance with Federal

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

13   Local Rule 34.1(b).

14                                FOR THE COURT:
15                                Catherine O’Hagan Wolfe,
16                                Clerk of Court
17




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