20-4163
Gregorio-Lopez v. Garland
BIA
Ruehle, IJ
A206 003 987
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 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 11th day of April, two thousand twenty-
5 three.
6
7 PRESENT:
8 RICHARD C. WESLEY,
9 STEVEN J. MENASHI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 MAINOR MAURICIO GREGORIO-LOPEZ,
15 Petitioner,
16
17 v. 20-4163
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Samuel Iroegbu, Albany, NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Mary Jane
28 Dandaux, Assistant Director;
1 Nicole J. Thomas-Dorris, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Mainor Mauricio Gregorio-Lopez, a native and
11 citizen of Guatemala, seeks review of a November 30, 2020
12 decision of the BIA affirming a November 20, 2018 decision of
13 an Immigration Judge (“IJ”) that denied his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Mainor Mauricio
16 Gregorio-Lopez, No. A 206 003 987 (B.I.A. Nov. 30, 2020),
17 aff’g No. A 206 003 987 (Immigr. Ct. Buffalo Nov. 20, 2018).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history.
20 We have reviewed the IJ’s decision as modified by the
21 BIA, i.e., minus the adverse credibility determination that
22 the BIA did not affirm. See Xue Hong Yang v. U.S. Dep’t of
23 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
24 standards of review are well established. “[T]he
2
1 administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the
3 contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, “we review the
4 agency’s decision for substantial evidence and must defer to
5 the factfinder’s findings based on such relevant evidence as
6 a reasonable mind might accept as adequate to support a
7 conclusion. . . . By contrast, we review legal conclusions de
8 novo.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021)
9 (internal quotation marks omitted).
10 Gregorio-Lopez had the burden to establish an objectively
11 reasonable fear of future persecution on account of a
12 protected ground, here his membership in his proposed
13 particular social group of “cooperating witnesses who have
14 assisted U.S. law enforcement.” See 8 U.S.C.
15 § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b)(1), (2);
16 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
17 A particular social group must be “socially distinct within
18 the society in question.” Paloka v. Holder, 762 F.3d 191,
19 196 (2d Cir. 2014) (quoting In re M–E–V–G–, 26 I. & N. Dec.
20 227, 237 (B.I.A. 2014)). Gregorio-Lopez alleged that he
21 aided U.S. law enforcement by identifying his smuggler, but
3
1 he presented no evidence that his cooperation with U.S. law
2 enforcement was publicized in Guatemala, that people in his
3 community knew that anyone was seeking him out for revealing
4 his smuggler’s name to U.S. law enforcement, or that anyone
5 aside from a few individuals in Guatemala knew that he had
6 cooperated with U.S. law enforcement in identifying the
7 smuggler as part of a smuggling operation. And he presented
8 no country conditions evidence about the treatment of
9 witnesses in Guatemala. This record does not demonstrate
10 that Guatemalan society perceives witnesses of criminal acts
11 as a distinct group. See id. (“[I]n determining
12 particularity and social distinction what matters is whether
13 society as a whole views a group as socially distinct, not
14 the persecutor's perception.”); see also Ucelo-Gomez v.
15 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm
16 visited upon members of a group is attributable to the
17 incentives presented to ordinary criminals rather than to
18 persecution, the scales are tipped away from considering
19 those people a ‘particular social group’ within the meaning
20 of the [Immigration and Nationality Act].”). Because
21 Gregorio-Lopez did not establish a cognizable social group,
4
1 he did not meet his burden for asylum and withholding of
2 removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A),
3 (C).
4 He also failed to meet his burden for CAT relief. CAT
5 relief does not require a nexus to a protected ground, but an
6 applicant has the burden to show he would “more likely than
7 not be tortured” and that torture will be “inflicted by or at
8 the instigation of or with the consent or acquiescence of a
9 public official or other person acting in an official
10 capacity.” 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1) (version
11 in effect to Jan. 11, 2021). Gregorio-Lopez testified that
12 the smuggler gave him an accusing look after he identified
13 him to U.S. law enforcement, and four men went to his home in
14 Guatemala once in 2013 and told his domestic partner they
15 would kill him. The agency reasonably found that this single
16 threat from private actors was not sufficient to establish
17 that Gregorio-Lopez would more likely than not be tortured—
18 that the smuggler would still be looking for him and would be
19 able to find him anywhere in Guatemala—and that the Guatemalan
20 government or public officials would more likely than not
21 acquiesce to that torture. See Jian Xing Huang v. U.S.
5
1 I.N.S., 421 F.3d 125, 129 (2d Cir. 2005) (per curiam) (“In
2 the absence of solid support in the record . . . [an
3 applicant’s] fear is speculative at best.”).
4 For the foregoing reasons, the petition for review is
5 DENIED. All pending motions and applications are DENIED and
6 stays VACATED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
6
Gregorio-Lopez v. Garland
Combined Opinion