Guaman-Parades v. Bondi

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FOR PETITIONERS: Michael Borja, Esq., Borja Law Firm, P.C., 1 Jackson Heights, NY. 2

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FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 4 Attorney General; John S. Hogan, Assistant 5 Director; Lindsay Corliss, Trial Attorney, 6 Office of Immigration Litigation, United 7 States Department of Justice, Washington, 8

DC. 9

UPON DUE CONSIDERATION of this petition for review of a Board of 10

Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND 11 DECREED that the petition for review is DENIED. 12

Petitioners Victor Gustavo Guaman-Parades, Gloria Soraya Alvarado-13 Malla, and their minor son Jeanpierre Nicolas Guaman-Alvarado, natives and 14 citizens of Ecuador, seek review of an October 24, 2023 decision of the BIA 15 affirming a December 21, 2022 decision of an Immigration Judge ("IJ") denying 16 their application for asylum, withholding of removal, and relief under the 17 Convention Against Torture ("CAT"). In re Victor Gustavo Guaman-Parades, Gloria 18 Soraya Alvarado-Malla, Jeanpierre Nicolas Guaman-Alvarado, Nos. A 220 592 19 351/352/350 (B.I.A. Oct. 24, 2023), aff'g Nos. A 220 592 351/352/350 (Immigr. Ct. 20 N.Y.C. Dec. 21, 2022). We assume the parties' familiarity with the underlying 21 facts and procedural history. 22

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We review the IJ's decision as modified by the BIA. See Xue Hong Yang v. 1 U.S. Dep't of Just., 426 F.3d 520, 522 (2d Cir. 2005). We review the agency's fact-2 finding "under the substantial evidence standard," and we review questions of 3 law and the application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 4 67, 76 (2d Cir. 2018). "[T]he administrative findings of fact are conclusive unless 5 any reasonable adjudicator would be compelled to conclude to the contrary." 8 6 U.S.C. § 1252(b)(4)(B). 7

To establish eligibility for asylum, an applicant must prove that he "suffered 8 past persecution or . . . has a well-founded fear of future persecution." 8 C.F.R. 9 § 1208.13(b). Similarly, an applicant for withholding of removal must establish 10 either past persecution or that he will "more likely than not" be persecuted in the 11 future. Id. § 1208.16(b)(1), (2). An applicant for asylum and withholding of 12 removal has the burden of showing that "race, religion, nationality, membership 13 in a particular social group, or political opinion was or will be at least one central 14 reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R. 15 §§ 1208.13(b), 1208.16(b); Quituizaca v. Garland, 52 F.4th 103, 105-06 (2d Cir. 2022) 16 (holding that "one central reason" standard applies to both asylum and 17

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withholding). ¹

Where, as here, applicants assert membership in a particular 1 social group, they have to show "both that the group itself was cognizable," Paloka 2

v. Holder, 762 F.3d 191, 195 (2d Cir. 2014), and that their membership in the group 3 was or will be "one central reason" for the harm suffered or feared, Quituizaca, 52 4 F.4th at 105-06. 5

Before the IJ, Guaman-Parades asserted protected status as a member of the 6 particular social groups of Ecuadorian men who resisted recruitment by a gang 7 and Ecuadorian men who are targeted by a gang; Alvarado-Malla and their son 8 asserted membership in the group of family members of Guaman-Parades. 9 Before the BIA, Petitioners asserted membership in a particular social group of 10

"those who opposed criminal activity" or "witnesses [who] oppos[ed] criminal 11 activity." Certified Admin. Rec. ("CAR") at 15, 16. The BIA found the family-12 based social group waived, declined to consider the new group raised on appeal 13 to the extent it differed from the groups identified before the IJ, then declined to 14

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reach the cognizability of the groups proffered to the IJ, but affirmed the IJ's 1 dispositive nexus determination. 2

Petitioners do not challenge those findings here, but instead reiterate the 3 argument they first raised before the BIA—that they identified and are members 4 of a cognizable group of witnesses who opposed criminal activity. "We consider 5 abandoned any claims not adequately presented in an appellant's brief, and an 6 appellant's failure to make legal or factual arguments constitutes abandonment." 7 Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (quotation marks omitted). The 8 abandoned grounds—waiver of the family-based social group, and nexus between 9 the alleged harm and the social groups proposed before the IJ—are dispositive, so 10 there is nothing more for us to review regarding asylum and withholding of 11 removal. See Paloka, 762 F.3d at 195 ("To succeed on a particular social group 12 claim, the applicant must establish both that the group itself was cognizable, and 13 that the alleged persecutors targeted the applicant on account of her membership 14 in that group." (citations and quotation marks omitted)). 15 With respect to the argument raised here, the BIA declined to reach the 16 proposed social group of "those who oppose criminal activity" because Petitioners 17 did not identify that group before the IJ. Thus, as to that group, the only issue 18

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before us is whether the BIA erred in its waiver finding. See Prabhudial v. Holder, 1

780 F.3d 553, 555-56 (2d Cir. 2015) (explaining that where the BIA finds an issue 2 waived, "this Court's review is limited to whether the BIA erred in deeming the 3 argument waived"). Petitioners do not challenge that finding here. 4 Finally, Petitioners' challenge to the denial of their CAT claim is 5 unexhausted because it was not argued before the BIA, see Punin, 108 F.4th at 123-6 24, and without merit because the CAT regulations explicitly require government 7 involvement or acquiescence, see 8 C.F.R. § 1208.18(a)(1); Scarlett v. Barr, 957 F.3d 8 316, 334 (2d Cir. 2020) (explaining that a CAT claim based on the likelihood of 9 torture by gang members requires "demonstrating government acquiescence in 10 likely torture" (emphasis omitted)). Petitioners otherwise do not adequately 11 challenge the denial of CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 12 545 n.7 (2d Cir. 2005) (deeming argument abandoned where brief "devote[d] only 13 a single conclusory sentence" to it). 14

For the foregoing reasons, the petition for review is DENIED. All pending 15 motions and applications are DENIED and stays VACATED. 16

FOR THE COURT: 17

Catherine O'Hagan Wolfe, 18 Clerk of Court 19