Byron Culcay Guinanzaca v. Attorney General United States of America

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 22-2440 ___________ BYRON CULCAY GUINANZACA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________ On Petition for Review of a Decision of the Board of Immigration Appeals (A205-753-462) Immigration Judge: Annie S. Garcy ____________ Submitted Under Third Circuit L.A.R. 34.1(a) On June 5, 2023 Before: HARDIMAN, AMBRO, and FUENTES, Circuit Judges (Filed: June 7, 2023) ____________ OPINION* ____________ HARDIMAN, Circuit Judge. Byron Culcay Guinanzaca petitions for review of a Board of Immigration Appeals * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. decision rejecting his application for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. We will deny the petition. I Culcay Guinanzaca is a native and citizen of Ecuador who entered the United States unlawfully in 2010. The Department of Homeland Security brought removal proceedings against him in 2013 after his conviction for a state-law offense. Culcay Guinanzaca conceded his removability and applied for asylum, withholding of removal, and CAT protection. His counsel later conceded that he was time-barred from seeking asylum. At a merits hearing, Culcay Guinanzaca testified that he joined Ecuador’s army at age 18. He received weapons-handling or ballistics training, earned a license for auto mechanic work, obtained a military identification card for employment in a bank or the security services, and retired as an active reserve soldier. After his discharge, a criminal drug-trafficking gang urged him to join the outfit or suffer the consequences. The gang knew that Culcay Guinanzaca had served in the military because he had done community service while in uniform, and they wanted him to join because he knew how to handle weapons. He refused. More encounters followed. After he reported one incident to the police, the gang attacked him, leaving him “beaten” and “unconscious.” AR 246. Worried that his life was in danger, Culcay Guinanzaca fled to another city to recover and soon thereafter left for the United States. During the hearing, the Immigration Judge asked counsel for evidence corroborating Culcay Guinanzaca’s testimony that he had served in the military. Culcay 2 Guinanzaca’s counsel said he didn’t have evidence available, but that Culcay Guinanzaca had brought Spanish documents to the hearing. Counsel moved orally for a continuance to translate and submit the materials. The IJ denied the motion because Culcay Guinanzaca had not shown diligence in collecting evidence to support his case. The IJ then denied Culcay Guinanzaca’s application. She found that Culcay Guinanzaca had failed to corroborate material parts of his claim, such as that he served in the military and was beaten by the gang. And she found that Culcay Guinanzaca had failed to prove both that he was persecuted for membership in a particular social group— rather than for “his refusal to join” the gang, AR 60—and that Ecuador’s government would be responsible for the harm he feared. The IJ ordered Culcay Guinanzaca removed to Ecuador. Culcay …

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