     16-3850
     Veras-Hernandez v. Sessions
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A206 781 552
                             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 9th day of July, two thousand eighteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            RICHARD C. WESLEY,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12   WANDER ELIEZER VERAS-HERNANDEZ,
13   AKA TITO LOPEZ, AKA WANDER
14   VERAS-HERNANDEZ, AKA WANBER
15   VERAS HERNANDEZ,
16            Petitioner,
17
18                     v.                                        16-3850
19                                                               NAC
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                    Jon E. Jessen, Law Offices of Jon
26                                      E. Jessen, LLC, Stamford, CT.
27
28   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
29                                      Attorney General; Derek C. Julius,
30                                      Assistant Director; W. Daniel
31                                      Shieh, Trial Attorney, Office of
32                                      Immigration Litigation, United
33                                      States Department of Justice,
34                                      Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner Wander Eliezer Veras-Hernandez, a native and

6    citizen of the Dominican Republic, seeks review of an

7    October 14, 2016 decision of the BIA affirming a March 17,

8    2016 decision of an Immigration Judge (“IJ”) denying Veras-

9    Hernandez’s applications for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).   In re Wander Eliezer Veras-Hernandez, No. A 206

12   781 552 (B.I.A. Oct. 14, 2016), aff’g No. A 206 781 552

13   (Immig. Ct. Hartford Mar. 17, 2016).    We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case, to which we refer only as

16   necessary to explain our decision to deny the petition for

17   review.

18       Under the circumstances of this case, we review the

19   IJ’s decision as modified by the BIA.    See Xue Hong Yang v.

20   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

21   Accordingly, we do not reach Veras-Hernandez’s challenges

22   to the IJ’s “particularly serious crime” determination: the
                                   2
1    BIA did not review or rely on that determination.           See id.

2    Moreover, Veras-Hernandez was ordered removed for, inter

3    alia, committing a controlled substance offense and

4    aggravated felony, see Certified Administrative Record

5    (“CAR”) at 435, and conceded removability on these grounds,

6    see CAR at 408. Our review is therefore limited to

7    constitutional claims and questions of law.          See 8 U.S.C.

8    § 1252(a)(2)(C), (D); Gil v. Sessions, 851 F.3d 184, 186

9    n.1 (2d Cir. 2017).

10   I. Withholding of Removal

11        An applicant seeking withholding of removal must

12   establish that his “life or freedom would be

13   threatened . . . because of [his] race, religion,

14   nationality, membership in a particular social group, or

15   political opinion.”     8 U.S.C. § 1231(b)(3)(A).       Veras-

16   Hernandez defines the “particular social group” of which he

17   is part as small business owners who are unable to pay

18   money they owe to “loan sharks.”1       The agency concluded that

19   the evidence failed to show that the proposed group of



     1Veras-Hernandez characterizes the private creditors to whom he owed
     money as “loan sharks”; the IJ also employed this term to describe the
     creditors. Veras-Hernandez testified that the creditors charged
     interest rates between fifty and seventy percent. See CAR 116.
                                       3
1    debtors is perceived as socially distinct within Dominican

2    society.   We review de novo the determination of whether a

3    group constitutes a “particular social group” within the

4    meaning of the statute.    See Paloka v. Holder, 762 F.3d

5    191, 195 (2d Cir. 2014).

6        To constitute a “particular social group,” a group must

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

8    characteristic, (2) defined with particularity, and

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

10   Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014).

11   “[A] particular social group cannot be defined exclusively

12   by the claimed persecution . . . . [I]t must be

13   recognizable as a discrete group by others in the society,

14   and . . . it must have well-defined boundaries.”    Id. at

15   232 (internal quotation marks omitted); see also id.

16   at 242.

17       The BIA did not err in concluding that Veras-

18   Hernandez’s proposed social group is not cognizable.

19   Veras-Hernandez failed to establish that small business

20   owners who owed money to such creditors are perceived as

21   distinct by Dominican society. He presented no evidence

22   that small business owners are at greater risk of harm in
                                    4
1    the Dominican Republic than any other person who defaults

2    on a payment to a creditor who lends at very high rates.

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

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

5    attributable to the incentives presented to ordinary

6    criminals rather than to persecution, the scales are tipped

7    away from considering those people a ‘particular social

8    group . . . .’”).

9    II. CAT Relief

10       For withholding or deferral of removal under the CAT,

11   Veras-Hernandez was required to establish that he would

12   “more likely than not” be tortured.   8 C.F.R.

13   § 1208.16(c)(2).    For CAT purposes, torture is defined as

14   “any act by which severe pain or suffering, whether

15   physical or mental, is intentionally inflicted on a

16   person,” Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir.

17   2007) (quoting 8 C.F.R. § 208.18(a)(1)), when such acts are

18   “committed by or acquiesced in by government actors,”

19   Pierre, 502 F.3d at 118 (emphasis omitted).   “A private

20   actor’s behavior can constitute torture under the CAT

21   without a government’s specific intent to inflict it if a

22   government official is aware of the persecutor’s conduct
                                    5
1    and intent and acquiesces in violation of the official’s

2    duty to intervene.” Id. at 118 (citing Khouzam v. Ashcroft,

3    361 F.3d 161, 171 (2d Cir. 2004)).

4        Veras-Hernandez’s only claim of legal error is that the

5    BIA should have reviewed the IJ’s dismissal of his CAT

6    claim de novo.    We disagree: the IJ’s findings regarding

7    the likelihood of torture and of acquiescence by the

8    government are factual findings that the BIA reviews for

9    clear error.     See 8 C.F.R. § 1003.1(d)(3)(i); Hui Lin Huang

10   v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).

11       Veras-Hernandez identifies no other legal challenges to

12   the agency’s denial of CAT relief; he argues only that the

13   agency’s likelihood of torture and acquiescence

14   determinations are not supported by substantial evidence—a

15   factual challenge.    We lack jurisdiction to review the

16   agency’s factual determinations regarding the likelihood of

17   torture or acquiescence by government officials because

18   Veras-Hernandez was ordered removed for a controlled

19   substance offense and aggravated felony.      8 U.S.C.

20   § 1252(a)(2)(C), (D).

21                                 *       *   *

22
                                       6
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stay of

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot.   Any pending request

6    for oral argument in this petition is DENIED in accordance

7    with Federal Rule of Appellate Procedure 34(a)(2), and

8    Second Circuit Local Rule 34.1(b).

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




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