Rivas-Aparicio v. Garland
| Docket Number | 19-3696 NAC |
| Decision Date | 08 August 2023 |
| Parties | LUIS RENE DARWIN RIVAS-APARICIO, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
UNPUBLISHED OPINION
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 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 8th day of August, two thousand twenty-three.
Brooke Marie Maurer, Trial Attorney; Nancy E. Friedman, Senior Litigation Counsel; Brian Boynton, Principal Deputy Assistant Attorney General, Office of Immigration Litigation, United States Department of Justice, Washington, DC
PRESENT: RAYMOND J. LOHIER, JR., EUNICE C. LEE, SARAH A. L MERRIAM, Circuit Judges.
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 Luis Rene Darwin Rivas-Aparicio, a native and citizen of El Salvador, seeks review of an October 23, 2019 decision of the BIA affirming a June 16, 2016 decision of an Immigration Judge ("IJ") denying his application for asylum and withholding of removal. See In re Luis Rene Darwin Rivas-Aparicio, No. A206 005 981 (B.I.A. Oct. 23, 2019) aff'g No. A206 005 981 (Immigr. Ct. N.Y. City June 16, 2016). We assume the parties' familiarity with the underlying facts and procedural history.
Under the circumstances, we have reviewed the IJ's decision as supplemented and modified by the BIA, i.e., minus the findings that the BIA did not adopt. See Yan Chen v Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep't of Just., 426 F.3d 520, 522 (2d Cir. 2005). We review the agency's legal conclusions de novo and its factual findings for substantial evidence. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
To establish eligibility for asylum and withholding of removal, an 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); Quituizaca v. Garland, 52 F.4th 103, 107 (2d Cir. 2022). The BIA did not err in concluding that Rivas-Aparicio failed to establish that his proposed social group of individuals who cooperate with police was cognizable or that he was or would be targeted on account of his political opinion.
To establish eligibility for relief based on membership in a particular social group, an applicant must show that (1) the proposed social group is cognizable (i.e., its members share an immutable characteristic, the group is defined with particularity, and the group is viewed as socially distinct by society), and (2) the harm suffered or feared was or will be on account of membership in that group (i.e., a nexus between the harm and the cognizable social group). See Quintanilla-Mejia v. Garland, 3 F.4th 569, 588-89 (2d Cir. 2021); Matter of M-E-V-G-, 26 I. &N. Dec. 227, 237 (B.I.A. 2014). Relief "may be granted where there is 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) (quotation marks and citations omitted).
We previously remanded this case for the agency to apply a mixed-motive analysis to determine whether Rivas-Aparicio established a nexus between gang members targeting him and his membership in his proposed social group of individuals who cooperate with police. On remand, the BIA acknowledged that the record contained "material evidence indicating that the gang members may have been motivated in part by [Rivas-Aparicio's] cooperation with the police." Certified Administrative Record at 4. Assuming, based on this evidence, that a nexus had been established, the BIA then proceeded to consider the other factor in evaluating a social group claim-whether Rivas-Aparicio's proposed social group was cognizable. Although the determination of whether a group constitutes a "particular social group" is a legal issue the BIA reviews de novo, the parties correctly contend that the factual findings underlying such decisions are reviewed for substantial evidence and may not be made by the BIA in the first instance. See Matter of W-Y-C- & H-O-B-, 27 I. &N. Dec. 189, 191 (B.I.A. 2018) (); see also 8 C.F.R. § 1003.1(d)(3)(iv)(A) (). However, contrary to the parties' contentions, the BIA did not engage in impermissible factfinding. Rather, it reasonably concluded that Rivas-Aparicio had neither alleged facts nor presented evidence to establish that his proposed social group was socially distinct within Salvadoran society, and thus failed to satisfy a material element of his claim. Indeed, Rivas-Aparicio did not assert that anyone other than those involved were aware that gang members had stolen from and attacked him or that he had reported the theft to police, and his country conditions evidence described government corruption, collusion, and incompetence related to gangs but did not indicate that those who cooperate with police are perceived as socially distinct by Salvadoran society. See Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014) ("[W]hat matters is whether society as a whole views a group as socially distinct, not the persecutor's perception."); Gashi v. Holder, 702 F.3d 130, 137 (2d Cir. 2012) (...
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