Filed: Apr. 04, 2017
Latest Update: Mar. 03, 2020
Summary: 15-3345 Martinez-Diaz v. Sessions BIA Verrillo, IJ A206 798 022/023/024 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 DA
Summary: 15-3345 Martinez-Diaz v. Sessions BIA Verrillo, IJ A206 798 022/023/024 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 DAT..
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15-3345
Martinez-Diaz v. Sessions
BIA
Verrillo, IJ
A206 798 022/023/024
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 4th day of April, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 DINORA BEDALI MARTINEZ-DIAZ,
14 LINSSE ESTEFANY GUZMAN-MARTINEZ,
15 ENGLIVER GUSTAVO GUZMAN-MARTINEZ
16 Petitioners,
17
18 v. 15-3345
19 NAC
20 JEFFERSON B. SESSIONS III,
21 UNITED STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONERS: Robert C. Ross, West Haven, CT.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General, Claire
29 L. Workman, Senior Litigation
30 Counsel, Jane T. Schaffner, Trial
31 Attorney, Office of Immigration
32 Litigation, United States
33 Department of Justice, Washington,
34 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 is
4 DENIED.
5 Petitioners Dinora Bedali Martinez-Diaz (“Martinez”) and
6 her minor children, Linsse Estefany and Engliver Gustavo
7 Guzman-Martinez, all natives and citizens of Guatemala, seek
8 review of a September 24, 2015, decision of the BIA affirming
9 an April 15, 2015, decision of an Immigration Judge (“IJ”)
10 denying Martinez’s application for asylum, withholding of
11 removal, and relief under the Convention Against Torture
12 (“CAT”). In re Dinora Bedali Martinez-Diaz, Linsse Estefany
13 Guzman-Martinez, Engliver Gustavo Guzman-Martinez, Nos. A206
14 798 022/023/024 (B.I.A. Sep. 24, 2015), aff’g Nos. A206 798
15 022/023/024 (Immig. Ct. Hartford Apr. 15, 2015). We assume the
16 parties’ familiarity with the underlying facts and procedural
17 history in this case.
18 Under the circumstances of this case, we have reviewed both
19 the IJ’s and the BIA’s opinions “for the sake of completeness.”
20 Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). We review
21 the agency’s decision “under the substantial evidence standard,
22 reversing only if a reasonable adjudicator would be compelled
23 to reach a contrary conclusion.” Gjolaj v. Bureau of
2
1 Citizenship and Immigration Servs., 468 F.3d 140, 142 (2d Cir.
2 2006). In order to demonstrate eligibility for asylum and
3 withholding of removal, an applicant must show that she has been
4 persecuted or has a fear of persecution, which is defined as
5 “harm or suffering . . . inflicted upon an individual in order
6 to punish [her] for possessing a belief or characteristic a
7 persecutor sought to overcome.” Matter of Acosta, 19 I. & N.
8 Dec. 211, 222 (BIA 1985), overruled in part on other grounds
9 by INS v. Cardoza-Fonseca,
480 U.S. 421 (1987).
10 The applicant must further establish that “race, religion,
11 nationality, membership in a particular social group, or
12 political opinion was or will be at least one central reason
13 for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);
14 8 U.S.C. § 1231(b)(3)(A); see also Matter of C-T-L-, 25 I. &
15 N. Dec. 341, 348 (BIA 2010). The BIA has explained that under
16 this “one central reason” standard, “the protected ground
17 cannot play a minor role in the alien’s past mistreatment or
18 fears of future mistreatment. That is, it cannot be
19 incidental, tangential, superficial, or subordinate to another
20 reason for harm.” In re J-B-N- and S-M-, 24 I. & N. Dec. 208,
21 214 (BIA 2007). Generally, criminal extortion efforts do not
22 constitute persecution on account of a protected ground. In
23 re T-M-B-, 21 I. & N. Dec. 775, 779 (BIA 1997), rev’d on other
3
1 grounds by Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc);
2 In Re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007) (holding
3 that mistreatment motivated by “increasing their own wealth at
4 the expense of the respondents” does not constitute persecution
5 on account of a protected ground), rev’d on other grounds by
6 Valdiviezo-Galdamez v. Att’y Gen. of United States,
663 F.3d
7 582 (3d Cir. 2011).
8 The agency reasonably determined that Martinez did not
9 establish a nexus between her claimed persecution and protected
10 ground. Martinez primarily argues that she is a member of the
11 social group of “Guatemalan mothers and women, caring for
12 children alone without a spouse.” In her application, however,
13 she stated only that she feared returning to Guatemala because
14 she has “received calls from extortionists asking . . . for
15 money.” She testified, similarly, that the callers asked for
16 money and tried to extort her. The agency reasonably
17 determined that the callers were only interested in increasing
18 their own wealth.
19 Martinez also identifies other possible social group
20 definitions and argues that the agency should have conducted
21 a mixed motive analysis to determine whether her membership in
22 a protected group was one central reason for her persecution,
23 in addition to the pecuniary motive. Martinez argues that her
4
1 “gender, her motherhood, her status as caretaker to children
2 whose father fled gang recruitment, her visibility as a single
3 parent, her family connections to the [United States], and her
4 lack of a male protector, all combined to make her vulnerable.”
5 But she points to nothing the record indicating that the
6 extortionists targeted her, over other economically vulnerable
7 segments of the population, due to these characteristics. As
8 such, the agency’s determination that Martinez failed to show
9 a nexus between the threats and her status as a single mother
10 was reasonable. In Re A-M-E- & J-G-U-, 24 I. & N. Dec. at 76
11 (requiring evidence that persons making threats were motivated
12 by applicant’s political opinion or membership in particular
13 social group); Gjolaj, 468 F.3d at 143 (applying substantial
14 evidence standard of review to nexus determinations).
15 The agency also reasonably determined that Martinez failed
16 to demonstrate a well-founded fear of future persecution. An
17 applicant’s fear of future persecution must be objectively
18 reasonable and contain “solid support in the record.” Jian
19 Xing Huang v. U.S. INS,
421 F.3d 125, 128-29 (2d Cir. 2005);
20 Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008).
21 Martinez argues that if she returns to Guatemala, “[t]he gang,
22 having been cheated of two victims, the Petitioner and her
23 brother, will be looking for vengeance,” but again points to
5
1 nothing in the record to support this proposition. The agency
2 reasonably found no “testimony or evidence to put her fear in
3 a factual context that would make it objectively reasonable.”
4 Accordingly, because Martinez failed to establish past
5 persecution or a well-founded fear of persecution on account
6 of a protected ground, the agency did not err in denying asylum
7 and withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
8 1231(b)(3)(A); see also Matter of C-T-L-, 25 I. & N. Dec. at
9 348.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
6
