17-2179
Torres Gonzalez v. Barr
BIA
Montante, IJ
A089 010 002
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 6th day of May, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 CIRILA TORRES GONZALEZ,
15
16 Petitioner,
17
18 v. 17-2179
19 NAC
20
21 WILLIAM P. BARR,
22 UNITED STATES ATTORNEY GENERAL,
23
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: Stephen K. Tills, Esq., Orchard
28 Park, NY.
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Julie M.
3 Iversen, Senior Litigation
4 Counsel; Jeffrey R. Meyer, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DISMISSED IN PART AND DENIED IN PART.
13 Petitioner Cirila Torres Gonzalez, a native and citizen
14 of Mexico, seeks review of a June 15, 2017 decision of the
15 BIA affirming a June 13, 2013 decision of an Immigration Judge
16 (“IJ”) denying Torres Gonzalez’s application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Cirila Torres Gonzalez, No.
19 A089 010 002 (B.I.A. June 15, 2017), aff’g No. A089 010 002
20 (Immig. Ct. Buffalo June 13, 2015). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case, to which we refer only as necessary to explain
23 our decision.
24 Under the circumstances of this case, we review the IJ’s
25 decision as modified by the BIA. See Xue Hong Yang v. U.S.
26 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen
2
1 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
2 standards of review are well established. See 8 U.S.C. §
3 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
4 2009).
5 I. Asylum
6 We dismiss the petition as it relates to asylum because,
7 for two separate reasons, we lack jurisdiction. First, Torres
8 Gonzalez did not challenge the denial of asylum before the
9 BIA. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006)
10 (requiring petitioner to raise before the BIA each category
11 of relief in their petition); see also 8 U.S.C. § 1252(d)(1)
12 (“A court may review a final order of removal only if . . .
13 the alien has exhausted all administrative remedies available
14 to the alien as of right . . . .”). Second, Torres Gonzalez
15 does not raise any reviewable constitutional claim or
16 question of law as to the agency’s determination that she
17 failed timely to file her asylum request. See 8 U.S.C.
18 §§ 1158(a)(2)(B), (D), (a)(3) (precluding judicial review of
19 agency’s finding that application was untimely); id.
20 § 1252(a)(2)(D) (preserving judicial review of constitutional
21 claims and questions of law).
3
1 II. Withholding of Removal1
2 We deny the petition as it relates to withholding of
3 removal because we identify no error in the BIA’s conclusion
4 that Torres Gonzalez was not a member of the particular social
5 group that she proposed. See 8 U.S.C. § 1252(b)(4)(B)
6 (“[A]dministrative findings of fact are conclusive unless any
7 reasonable adjudicator would be compelled to conclude to the
8 contrary . . . .”). To establish eligibility for withholding
9 of removal based on membership in a social group, the
10 applicant must establish both that the group is a “particular
11 social group” for asylum eligibility purposes, Ucelo-Gomez v.
12 Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007)(per curiam), and
13 that she has suffered past persecution or has demonstrated a
14 likelihood of future persecution on account of her membership
15 in that group, see Castro v. Holder, 597 F.3d 93, 100 (2d
16 Cir. 2010). Although the BIA had at the time ruled that
17 “married women in Guatemala who are unable to leave their
18 relationship” constituted a cognizable particular social
19 group that “form[s] the basis of a claim for . . . withholding
1In her brief on appeal, Torres Gonzalez has not separately
addressed the agency’s denial of CAT relief. We therefore
treat any related challenge as abandoned. See Pierre v.
Gonzales, 502 F.3d 109, 113 n.2 (2d Cir. 2007)(internal
quotations omitted).
4
1 of removal,” Matter of A-R-C-G-, et al., 26 I. & N. Dec. 388,
2 388-90 (B.I.A. 2014)(internal quotation marks omitted),
3 overruled by Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), the
4 BIA reasonably determined here that, assuming such a group
5 could be recognized in Mexico, Torres Gonzalez was not a
6 member of that social group. As the BIA reasoned, the record
7 did not establish that Torres Gonzalez was unable to leave
8 her former partner, given that he had not contacted her since
9 2005, when she obtained an order of protection. Nor has he
10 made any threats against her since he returned to Mexico in
11 2008, and he has not threatened or harmed members of Torres
12 Gonzalez’s family who remain in Mexico. Although Torres
13 Gonzalez also argues that the IJ erred in finding no
14 cognizable social group, the BIA assumed the group was
15 cognizable and denied relief based only on a conclusion that
16 Torres Gonzalez had failed to show that she was part of the
17 group. See Xue Hong Yang, 426 F.3d at 522 (providing that in
18 circumstances where the BIA has modified the IJ decision, we
19 review the IJ’s decision as modified by the BIA).
20 For the foregoing reasons, Torres-Gonzalez’s petition
21 for review is DISMISSED IN PART AND DENIED IN REMAINING PART.
22
5
1 Torres-Gonzalez’s motion for a stay of removal is DISMISSED
2 as MOOT.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe
5 Clerk of Court
6