Quituizaca v. Garland

52 F.4th 103

Xavier Pucha QUITUIZACA, aka Manuel Sanchez Rodriguez, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

No. 19-3470-ag

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: January 18, 2022

Decided: November 1, 2022

Rebecca Ruth Press, UnLocal, Inc. Community Immigration Legal Services, New York, NY (Xavier Pucha Quituizaca, pro se, Batavia, NY, on the briefs), for Petitioner.

Michele Y. F. Sarko, Office of Immigration Litigation (Timothy G. Hayes, Senior Litigation Counsel, on the brief), for Jeffrey Bossert Clark, Acting Assistant Attorney General—Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before: Kearse, Walker, and Sullivan, Circuit Judges.

Judge Sullivan concurs in Parts II and III and in the judgment, and files a separate concurring opinion as to Part I.

John M. Walker, Jr., Circuit Judge:

Xavier Pucha Quituizaca petitions for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ's) denial of his application for asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection under the Convention Against Torture (CAT). Quituizaca argues that the agency erred in denying his withholding of removal claim when it required that he demonstrate that his ethnicity was "at least one central reason" motivating his claimed persecution. He also challenges the BIA's denial of his asylum claim and its finding that he waived his CAT claim.

We hold that the withholding of removal statute is ambiguous as to the showing required to establish that a protected ground, such as ethnicity, motivated a persecutor. We also hold that the BIA's interpretation that the "one central reason" standard applies to withholding of removal claims is reasonable and thus entitled to deference. Because we find that the BIA's denial of Quituizaca's asylum and withholding claims are supported by substantial evidence and that Quituizaca waived his CAT claim, we DENY the petition.

Judge Sullivan concurs in Parts II and III and in the judgment, and files a separate concurring opinion as to Part I.

BACKGROUND

Quituizaca, a native and citizen of Ecuador, entered the United States in 2006 unlawfully without inspection. In 2018, the government opened removal proceedings against him. Quituizaca appeared before an IJ and conceded removability but applied for asylum, withholding of removal, and protection under CAT, any of which would have provided him with relief from the removal proceedings.

The facts in this appeal are undisputed. Quituizaca's requests for relief arise out of allegations that he was twice attacked by the "Morocha Kigwas," a gang in Ecuador that he claims targeted him because of his indigenous Quechua ethnicity. At the hearing before the IJ, Quituizaca testified that in 2003, gang members boarded a bus "full of indigenous people" who were mostly of high school age.¹ The gang removed Quituizaca—then 18 years old and returning from work—from the bus, robbed him at knifepoint, and beat him when he tried to run away. When asked why he thought he was "singled out," Quituizaca explained that the gang routinely patrolled the buses.² He did not report the robbery to the police because he claimed that they did not "listen to indigenous people."³

Two years later, the same gang again confronted Quituizaca. This time, Quituizaca was with his brother and friends at a bus stop around midnight. The gang demanded their money, jackets, and shoes. Quituizaca complied, but one of his friends who resisted and tried to fight back was fatally stabbed by the gang's leader. The leader then hit Quituizaca and threatened that Quituizaca and his family would meet the same fate as his friend if he reported anything to the police.⁴ Quituizaca did not report these events. Although Quituizaca's asylum application and an affidavit from his brother state that the gang called Quituizaca "Indian" and "indigenous,"⁵ Quituizaca did not testify that the gang used those words. He also testified that he was robbed several more times after 2005. When asked why he believed he had been targeted, he responded that it was because he had witnessed his friend's murder.

Following the hearing, the IJ denied all of Quituizaca's requests for relief. The IJ rejected the asylum and withholding of removal claims because it found that Quituizaca's proposed social group—"individuals who refuse to pay gangs or [who are] subject to their will"—was "too diffuse."⁶ Quituizaca's CAT claim was denied because he failed to establish that he would likely be tortured by or with the acquiescence of the Ecuadorian government.

Quituizaca appealed to the BIA on the grounds that the IJ should have made an explicit credibility finding and addressed his ethnicity-based claims. The BIA dismissed his appeal. It found that the IJ failed to make an explicit credibility finding, but that the IJ assumed that Quituizaca was credible. So, the BIA did not find that remand on this issue was necessary. And although the BIA acknowledged that the IJ did not "sufficiently consider" Quituizaca's ethnicity-based claims, it did not remand on this basis either.⁷ The BIA upheld the IJ's dismissal because Quituizaca had not shown sufficient proof that his ethnicity was "one central reason" for the harm he suffered to support either his asylum or withholding claims. While the BIA acknowledged Quituizaca's belief that he was targeted because of his ethnicity, it concluded that the evidence demonstrated that the gang was motivated by a "criminal desire to obtain money and goods."⁸ Moreover, Quituizaca failed to show that his proposed social groups—"Quechua being persecuted by gangs in Ecuador" or "witness[es] to gang crime"—were "socially distinct and particular."⁹ Finally, the BIA found that Quituizaca waived his CAT claim because he did not challenge the IJ's determination of that issue. Quituizaca now petitions for review.

DISCUSSION

Quituizaca advances three arguments on appeal. He argues that the BIA applied the wrong legal standard to his withholding of removal claim. He contends the BIA overlooked credible testimony in support of both his asylum and withholding claims. And he disputes that he waived his CAT claim.

I. The Motive Standard for Withholding of Removal Claims

An alien who fears persecution in his native country may apply for withholding of removal or asylum to avoid removal. If an applicant satisfies the eligibility requirements for withholding of removal, he is automatically entitled to that relief. Asylum, by contrast, is granted at the Attorney General's discretion, and involves a lower burden of proof compared to withholding of removal.¹⁰ Both forms of relief require the applicant to establish a nexus between a statutorily protected ground in the INA—race, religion, nationality, membership in a particular social group, or political opinion—and the feared persecution.¹¹ A persecutor may be motivated, however, by both protected and unprotected grounds. Before 2005, the INA did not supply a clear standard for analyzing these so-called "mixed motive" asylum and withholding claims.¹² Section 1158(b)(1)(B)(i) of the REAL ID Act of 2005¹³ has since codified that an asylum applicant must show that the protected ground is "at least one central reason" for the persecution.¹⁴

The REAL ID Act amendments do not expressly provide that § 1158(b)(1)(B)(i) ’s "one central reason" motive language also applies to withholding of removal claims. Section 1231(b)(3)(A), the general withholding of removal provision, prohibits the Attorney General from removing an alien "if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion."¹⁵ The REAL ID Act did not amend this language.¹⁶ Instead, the Act amended the withholding statute to add § 1231(b)(3)(C) as follows: "In determining whether an alien has demonstrated that the alien's life or freedom would be threatened for a reason described in [ § 1231(b)(3)(A) ], the trier of fact shall determine whether the alien has sustained the alien's burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 1158(b)(1)(B) of this title."¹⁷

The BIA dismissed Quituizaca's asylum and withholding claims because it found that he failed to meet his "burden of establishing that his ethnicity was one central reason that gang members robbed and attacked him."¹⁸ So doing, the BIA applied the asylum statute's "one central reason" standard to Quituizaca's withholding of removal claim.¹⁹ Quituizaca argues that § 1231(b)(3)(C) requires only that he show that his ethnicity was "a reason" for the persecution. He contends that because that provision supplies a less onerous motive standard than the asylum statute, the BIA erred when it did not apply the withholding statute's plain text.

We are thus tasked with construing the withholding of removal provision.²⁰ "[B]ecause the administration of [the INA] is entrusted to the BIA, our review follows the two-step process outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)."²¹ If the statute is clear, we must carry out Congress's stated intent. But if provisions in the INA are ambiguous, the BIA's interpretations of those provisions, if reasonable, are entitled to Chevron deference.²² We can conclude that the language is ambiguous only after "exhaust[ing] all the ‘traditional tools’ of construction."²³ We divine Congress's intent using the "ordinary tools of statutory construction,"²⁴ including the "statutory text, structure, and purpose as reflected in [the statute's] legislative history."²⁵ If we are left with ambiguity after such examination, then we consider whether the BIA's interpretation is reasonable.

A. Chevron Step...