Carmona v. Holder , 457 F. App'x 32 ( 2012 )

11-1033-ag
Carmona v. Holder
BIA
Straus, IJ
A093 269 757
A094 778 400
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 24th day of January, two thousand twelve.
PRESENT:
JOSÉ A. CABRANES,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
MARTHA NELLY CARMONA, JUAN CARLOS
JARAMILLO,
Petitioners,
v. 11-1033-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONERS: Glenn L. Formica, Formica, P.C.,
New Haven, Connecticut.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Lisa M. Damiano, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
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.
Petitioners Martha Nelly Carmona and Juan Carlos
Jaramillo, both natives and citizens of Colombia, seek
review of a February 18, 2011, order of the BIA affirming
the January 5, 2009, decision of an Immigration Judge (“IJ”)
denying their applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Martha Nelly Carmona, Juan Carlos Jaramillo,
Nos. A093 269 757/094 778 400 (B.I.A. Feb. 18, 2011), aff’g
Nos. A093 269 757/094 778 400 (Immig. Ct. Hartford, CT Jan.
5, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Because the BIA issued its own decision and did not
merely “adopt” the IJ’s decision, we have reviewed only the
BIA’s decision. Belortaja v. Gonzales, 484 F.3d 619, 623
(2d Cir. 2007). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. Asylum and Withholding of Removal
Carmona and Jaramillo argue that the BIA erred when it
found their social group, defined as “Colombian citizens who
have lived in the United States for most of their lives and
are part of a social group that connects them to the United
States and American wealth,” to be insufficient to establish
eligibility for asylum. As the BIA concluded, Carmona and
Jaramillo failed to establish their inclusion in a protected
social group. Membership in a particular social group may
be defined by a “common, immutable characteristic,” which
can be “an innate one such as sex, color, or kinship ties,
or in some circumstances it might be a shared past
experience such as former military leadership or land
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ownership.” Matter of Acosta, 19 I. & N. Dec. 211, 233-34
(BIA 1985), overruled in part on other grounds by Matter of
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).
We have held that defining a social group based on
“wealth” or “perceived wealth” is too subjective to serve as
a well-defined boundary of a cognizable social group.
Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)
(agreeing with the BIA that the group “wealthy Guatemalans”
was not cognizable because wealth is a relative term). In
addition, “Americanized” foreign nationals do not constitute
a cognizable social group because “Americanization” is not
am immutable characteristic, nor does it provide an
“adequate benchmark for determining group membership.” See
Lizama v. Holder, 629 F.3d 440, 446-48 (4th Cir. 2011).
Similarly, a “connection to the United States” cannot
constitute a cognizable social group because such a
characteristic is not immutable, nor is it recognizable or
discrete. Matter of A-M-E- & J-G-U-, 24 I. &. N. Dec. 69,
74 (BIA 2007); see also Ahmed v. Holder, 611 F.3d 90, 94-95
(1st Cir. 2010) (stating that secularized and westernized
Pakistanis perceived to be “affiliated with the United
States” are not a particular social group). Accordingly,
Carmona and Jaramillo failed to demonstrate a particular
social group with well-defined boundaries and the requisite
level of social visibility. Because the agency did not err
in finding that Carmona and Jaramillo failed to demonstrate
a nexus to a protected ground, as required to establish
eligibility for both asylum and withholding of removal, we
need not reach the Petitioners’ arguments regarding the
BIA’s review of the IJ’s factual findings as related to the
likelihood of their being targeted for persecution. 8
U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.16(b)(1).
II. CAT Relief
Title 8, section 1208.16 of the Code of Federal
Regulations incorporates the definition of torture contained
in the Convention Against Torture:
Torture is defined as any act by which severe pain
or suffering, whether physical or mental, is
intentionally inflicted on a person . . . when such
pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence
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of a public official or other person acting in an
official capacity.
“[T]orture requires only that government officials know of
or remain willfully blind to an act and thereafter breach
their legal responsibility to prevent it.” Khouzam v.
Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). The acts of
private individuals amount to torture if the government has
acquiesced in the acts in violation of its duty to
intervene. See Pierre v. Gonzales, 502 F.3d 109, 118 (2d
Cir. 2007).
Here, the BIA reasonably concluded that Carmona and
Jaramillo have failed to demonstrate eligibility for CAT
relief because they did not demonstrate that “anyone in the
Colombian government would affirmatively consent or
acquiesce to their torture” at the hands of the
Revolutionary Armed Forces of Columbia (“FARC”). As the BIA
found, the country conditions evidence demonstrated that,
while rebel groups continue to exist in Colombia, the
government has strived to reduce the violence and kidnapping
frequently associated with the FARC.
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 DENIED 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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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