VERAS HERNANDEZ AKA AKA AKA v. SESSIONS III (2018)

SUMMARY ORDER

Petitioner Wander Eliezer Veras-Hernandez, a native and citizen of the Dominican Republic, seeks review of an October 14, 2016 decision of the BIA affirming a March 17, 2016 decision of an Immigration Judge (“IJ”) denying Veras-Hernandez's applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Wander Eliezer Veras-Hernandez, No. A XXX XX1 552 (B.I.A. Oct. 14, 2016), aff'g No. A XXX XX1 552 (Immig. Ct. Hartford Mar. 17, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case, to which we refer only as necessary to explain our decision to deny the petition for review.

Under the circumstances of this case, we review the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly, we do not reach Veras-Hernandez's challenges to the IJ's “particularly serious crime” determination: the BIA did not review or rely on that determination. See id. Moreover, Veras-Hernandez was ordered removed for, inter alia, committing a controlled substance offense and aggravated felony, see Certified Administrative Record (“CAR”) at 435, and conceded removability on these grounds, see CAR at 408. Our review is therefore limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D); Gil v. Sessions, 851 F.3d 184, 186 n.1 (2d Cir. 2017).

I. Withholding of Removal

An applicant seeking withholding of removal must establish that his “life or freedom would be threatened ․ because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Veras-Hernandez defines the “particular social group” of which he is part as small business owners who are unable to pay money they owe to “loan sharks.” ¹ The agency concluded that the evidence failed to show that the proposed group of debtors is perceived as socially distinct within Dominican society. We review de novo the determination of whether a group constitutes a “particular social group” within the meaning of the statute. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).

To constitute a “particular social group,” a group must be: “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014). “[A] particular social group cannot be defined exclusively by the claimed persecution․ [I]t must be recognizable as a discrete group by others in the society, and ․ it must have well-defined boundaries.” Id. at 232 (internal quotation marks omitted); see also id. at 242.

The BIA did not err in concluding that Veras-Hernandez's proposed social group is not cognizable. Veras-Hernandez failed to establish that small business owners who owed money to such creditors are perceived as distinct by Dominican society. He presented no evidence that small business owners are at greater risk of harm in the Dominican Republic than any other person who defaults on a payment to a creditor who lends at very high rates. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited upon members of a group is attributable to the incentives presented to ordinary criminals rather than to persecution, the scales are tipped away from considering those people a ‘particular social group․’ ”).

II. CAT Relief

For withholding or deferral of removal under the CAT, Veras-Hernandez was required to establish that he would “more likely than not” be tortured. 8 C.F.R. § 1208.16(c)(2). For CAT purposes, torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007) (quoting 8 C.F.R. § 208.18(a)(1) ), when such acts are “committed by or acquiesced in by government actors,” Pierre, 502 F.3d at 118 (emphasis omitted). “A private actor's behavior can constitute torture under the CAT without a government's specific intent to inflict it if a government official is aware of the persecutor's conduct and intent and acquiesces in violation of the official's duty to intervene.” Id. at 118 (citing Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) ).

Veras-Hernandez's only claim of legal error is that the BIA should have reviewed the IJ's dismissal of his CAT claim de novo. We disagree: the IJ's findings regarding the likelihood of torture and of acquiescence by the government are factual findings that the BIA reviews for clear error. See 8 C.F.R. § 1003.1(d)(3)(i); Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012).

Veras-Hernandez identifies no other legal challenges to the agency's denial of CAT relief; he argues only that the agency's likelihood of torture and acquiescence determinations are not supported by substantial evidence—a factual challenge. We lack jurisdiction to review the agency's factual determinations regarding the likelihood of torture or acquiescence by government officials because Veras-Hernandez was ordered removed for a controlled substance offense and aggravated felony. 8 U.S.C. § 1252(a)(2)(C), (D).

* * *

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOOTNOTES

1.   Veras-Hernandez characterizes the private creditors to whom he owed money as “loan sharks”; the IJ also employed this term to describe the creditors. Veras-Hernandez testified that the creditors charged interest rates between fifty and seventy percent. See CAR 116.