Salazar Matute v. Lynch , 630 F. App'x 113 ( 2015 )

14-2455
Salazar Matute v. Lynch
BIA
Straus, IJ
A205 306 801
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
4th day of December, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
LOURDES GERMANIA SALAZAR MATUTE,
Petitioner,
v. 14-2455
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Elyssa N. Williams, Glenn L.
Formica, Formica Williams, P.C.,
New Haven, Connecticut.
FOR RESPONDENT: Benjamin C. Mizer, Principal
Deputy Assistant Attorney
General; Terri J. Scadron,
Assistant Director; Colin J.
Tucker, Trial Attorney,
United States Department of
Justice, Civil Division, Office of
Immigration Litigation,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Lourdes Germania Salazar Matute, a native and
citizen of Ecuador, seeks review of a June 13, 2014, decision
of the BIA affirming an October 10, 2012, decision of an
Immigration Judge (“IJ”) denying her application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). See In re Lourdes Germania Salazar Matute,
No. A205 306 801 (B.I.A. June 13, 2014), aff’g No. A205 306 801
(Immig. Ct. Hartford Oct. 10, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
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completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Salazar Matute applied for asylum, withholding of removal,
and CAT relief because she and her sister had been the victims
of an attempted kidnapping, and after the attempted kidnapping,
one man repeatedly followed and harassed Salazar Matute. She
contends that she is eligible for asylum and withholding of
removal based on her family membership and her membership in
the purported particular social group of ”young, passive
Ecuadorian women who reside without their parents.”
To establish eligibility for asylum or withholding of
removal, an applicant must show persecution, or fear of
persecution, “on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. §§ 1101(a)(42); 1231(b)(3). “To succeed on a
particular social group claim, the applicant must establish
both that the group itself was cognizable . . . and that the
alleged persecutors targeted the applicant ‘on account of’ her
membership in that group.” Paloka v. Holder, 762 F.3d 191, 195
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(2d Cir. 2014) (internal citations omitted). Kinship ties or
membership in a family “may form a cognizable shared
characteristic for a particular social group.” Vumi v.
Gonzales, 502 F.3d 150, 155 (2d Cir. 2007). However, even
assuming that Salazar Matute’s two claimed social groups,
family membership and “young, passive Ecuadorian women who are
abandoned by their parents,” are cognizable, she has not shown
that the harm she suffered was on account of her membership in
either group.
With regard to family membership, Salazar Matute presented
no evidence that either the attempted kidnapping or her ongoing
harassment had anything to do with her family. While she and
her sister were both subject to the same kidnapping attempt,
only Salazar Matute suffered continued harassment, although she
lived with her sister at that time. Likewise, nothing in the
record suggests that, during the multiple instances of
harassment, the harasser ever referenced Salazar Matute’s
family, and when Salazar Matute confronted her harasser and
demanded an explanation, his response was to “insist[] that he
wanted to be with [Salazar Matute].” J.A. 180. Further,
Salazar Matute’s two sisters and her grandparents continue to
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live in the same town in Ecuador and have not had any problems,
suggesting that Salazar Matute’s harassment was not tied to her
family membership. See Melgar de Torres v. Reno, 191 F.3d 307,
313 (2d Cir. 1999).
Similarly, Salazar Matute presented no evidence that the
attempted kidnapping or ongoing harassment occurred because she
was a young, passive Ecuadorian woman who resided without her
parents. She did not identify any motive for the perpetrators’
actions, much less suggest that they were motivated to harm her
because she was a young passive woman without parents in
Ecuador. See Paloka, 762 F.3d at 198. And although she
testified that other women were harassed and followed by men
on the street, she did not provide details or offer any evidence
to show that these women were also young, passive, and without
parents in Ecuador. See Melgar de Torres, 191 F.3d at 314
(“[P]ersecution must be on account of an enumerated ground .
. . and general crime conditions are not a stated ground.”).
We also reject Salazar Matute’s argument that she is
eligible for CAT relief because she will be tortured and the
Ecuadorian government is “unwilling and unable to adequately
protect her.” Pet’r Br. 32. As the Immigration Judge and the
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BIA found, Salazar Matute’s own testimony belies that
contention: she stated that she complained to the police
several times that she was being followed and they came to her
aid, chasing her harasser away. While the police did not catch
the perpetrator, they did not ignore Salazar Matute’s calls or
allow her to be harmed. Cf. Khouzam v. Ashcroft, 361 F.3d 161,
171 (2d Cir. 2004) (“In terms of state action, torture requires
only that government officials know of or remain willfully blind
to an act and thereafter breach their legal responsibility to
prevent it.”). Additionally, the 2011 U.S. State Department
report, part of the record below, supports the agency’s
conclusion: it reflects that the Ecuadorian government
prosecutes perpetrators of crimes against women and has
initiated programs to address gender violence. Accordingly,
we conclude that the BIA’s decision was supported by substantial
evidence. See Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir.
2002) (“To reverse under the substantial evidence standard, we
must find that the evidence not only supports that conclusion,
but compels it.”) (internal quotation marks omitted).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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