Aguilar Lemus v. Barr ( 2019 )

17-1818
Aguilar Lemus v. Barr
BIA
Schoppert, IJ
A073 649 199
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
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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 9th day of October, two thousand nineteen.
PRESENT:
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
JORGE AGUILAR LEMUS,
Petitioner,
v. 17-1818
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Bruno Joseph Bembi, Hempstead,
NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Anthony P.
Nicastro, Assistant Director;
Vanessa M. Otero, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
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 in part and DISMISSED in part.
Petitioner Jorge Aguilar Lemus (“Lemus”), a native and
citizen of El Salvador, seeks review of a June 2, 2017,
decision of the BIA affirming a September 28, 2016, decision
of an Immigration Judge (“IJ”) denying Lemus’s applications
for asylum, withholding of removal, relief under the
Convention Against Torture (“CAT”), and cancellation of
removal. In re Jorge Aguilar Lemus, No. A 073 649 199 (B.I.A.
June 2, 2017), aff’g No. A 073 649 199 (Immig. Ct. N.Y. City
Sept. 28, 2016). We assume the parties’ familiarity with the
underlying facts and procedural history in this case. We
have reviewed both the BIA’s and IJ’s decisions. See Zaman
v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).
A. Asylum, Withholding of Removal, and CAT Relief
The applicable standards of review are well established.
See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191,
195 (2d Cir. 2014). An asylum applicant must show that he
has suffered past persecution, or has a well-founded fear of
future persecution, on account of race, religion,
nationality, membership in a particular social group, or
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political opinion. See 8 U.S.C. §§ 1101(a)(42),
1158(b)(1)(B)(i). Lemus did not establish past persecution.
Although he testified about the Salvadoran civil war and its
effect on his family, he stated that he left El Salvador
because of poverty and did not identify any persecution that
he had suffered as a result of the war. Lemus argues that
the general chaos and fear created by the civil war and his
parents’ fears of harm is sufficient to establish past
persecution. But “the statutory scheme unambiguously
dictates that applicants can become candidates for asylum
relief only based on persecution that they themselves have
suffered or must suffer.” Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 308 (2d Cir. 2007) (emphasis added).
Lemus’s claim of future persecution also fails. Lemus
testified that he feared general criminal conditions in El
Salvador, and that if removed he would be targeted either
because he had resided in the United States or because he
would become a small business owner. Lemus had the burden
to establish both a legally cognizable social group and that
he had a well-founded fear of future persecution on account
of his membership in that group. See 8 U.S.C.
§ 1158(b)(1)(B)(i); Paloka, 762 F.3d at 195. To constitute
a particular social group, a group must be: “(1) composed of
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members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within
the society in question.” In re M-E-V-G-, 26 I. & N. Dec.
227, 237 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey, 509
F.3d 70, 72–74 (2d Cir. 2007). “[A] ‘particular social
group’ cannot be defined exclusively by the claimed
persecution, . . . it must be ‘recognizable’ as a discrete
group by others in the society, . . . it must have . . .
definable boundaries,” and “it must not be amorphous,
overbroad, diffuse, or subjective.” M-E-V-G-, 26 I. & N.
Dec. at 232, 239. Affluence or “class status does not
establish a social group with sufficient particularity.”
Ucelo-Gomez, 509 F.3d at 74. Further, “a well-founded fear
of persecution must be on account of an enumerated ground set
forth in the [Immigration and Nationality Act] and general
crime conditions are not a stated ground.” Melgar de Torres
v. Reno, 191 F.3d 307, 314 (2d Cir. 1999).
Lemus did not offer sufficient evidence that Salvadorans
who spent time in the United States constitute a particular
social group. Although he stated that gangs and criminals
target individuals who have lived in the United States, he
did not corroborate this belief. See Liu v. Holder, 575 F.3d
193, 198 n.5 (2d Cir. 2009) (“[A] failure to corroborate can
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suffice, without more, to support a finding that an alien has
not met his burden of proof.”). Further, the U.S. State
Department report on El Salvador that Lemus relied on does
not demonstrate that criminals target such individuals or
that Salvadoran society perceives individuals who had lived
in the United States as a discrete group: the report reflected
that gangs have targeted community leaders, police, and
rivals, and stated that there have been no recent political
disappearances.
Lemus also asserted in his amended written statement that
he would be targeted by gangs because he would become a small
business owner if he returned to El Salvador. However,
professions are generally not immutable characteristics and
thus are not grounds for defining a social group. In re
Acosta, 19 I. & N. Dec. 211, 233–34 (B.I.A. 1985), overruled
in part on other grounds by In re Mogharrabi, 19 I. & N. 439
(B.I.A. 1987); see also Vumi v. Gonzales, 502 F.3d 150, 154
(2d Cir. 2007) (stating that Acosta “defines the standard for
what constitutes a particular social group”). Finally,
Lemus’s general fear of criminal conditions in El Salvador
does not suffice to state a claim of future persecution. See
Melgar de Torres, 191 F.3d at 314.
Lemus also argues that he experienced economic
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persecution in the past and that the “economic deprivation”
in El Salvador is sufficient to establish future persecution.
But Lemus simply testified that he left El Salvador because
of poverty, and that only low-paying work would be available
upon his return. This is not sufficient to establish
economic persecution, which requires the “deliberate
imposition of a substantial economic disadvantage” on account
of a protected ground. Mei Fun Wong v. Holder, 633 F.3d 64,
72 (2d Cir. 2011) (internal quotation marks omitted).
The absence of a nexus to a protected ground also
precludes withholding of removal. See 8 U.S.C.
§ 1231(b)(3)(A); Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir. 2004) (withholding of removal requires a showing
that persecution is more likely than not to occur on the basis
of a protected ground). Finally, Lemus did not offer
evidence that he will be subject to torture or that the
Salvadoran government would acquiesce to his torture, as
required for CAT relief. See 8 C.F.R. §§ 1208.16(c),
1208.17.
B. Cancellation of Removal
Our jurisdiction to review the agency’s denial of
cancellation of removal based on an applicant’s failure to
satisfy the hardship requirement is limited to constitutional
6
claims and questions of law. 8 U.S.C. § 1252(a)(2)(B)(i),
(D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–41 (2d Cir.
2008). We consider the hardship factor when the agency’s
decision “is made without rational justification or based on
an erroneous legal standard.” Mendez v. Holder, 566 F.3d
316, 322 (2d Cir. 2009) (internal quotation marks and citation
omitted).
We find no reviewable error here. Cancellation of
removal is available if an applicant demonstrates that his
removal would result in exceptional and extremely unusual
hardship to his U.S. citizen child. 8 U.S.C. § 1229b(b)(1).
“[T]he hardship . . . must be ‘substantially’ beyond the
ordinary hardship that would be expected when a close family
member leaves this country.” In re Monreal-Aguinaga, 23 I.
& N. Dec. 56, 62 (B.I.A. 2001) (quoting H.R. Conf. Rep. No.
104-828, at 213 (1996)). The agency must “consider the ages,
health, and circumstances of qualifying lawful permanent
resident and United States citizen relatives.” Monreal-
Aguinaga, 23 I. & N. Dec. at 63. The agency may also consider
other factors such as the age of the alien, the alien’s length
of residence in and family ties to the United States, the
“political and economic conditions in the country of return,”
and the alien’s involvement in his community in the United
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States. Id. But “[f]actors relating to the applicant
himself . . . can only be considered insofar as they may
affect the hardship to qualifying relative.” Id. “[A]ll
hardship factors should be considered in the aggregate when
assessing exceptional and extremely unusual hardship.” Id.
at 64.
The agency relied on the correct legal standards for
cancellation of removal and had a rational justification for
its conclusion that Lemus failed to show extreme hardship.
Lemus testified that his son received some writing and speech
therapy services, but did not have an individualized
education program. Neither of his children had medical
issues. Although Lemus testified that he would not be able
to support his children if they accompanied him to El
Salvador, he failed to show that his children would go with
him. His cancellation application indicated that the
children would likely stay in the United States with their
mother. And when asked at his hearing whether his children
would go with him to El Salvador, he gave an equivocal
response. Because Lemus bore the burden of showing that his
children would suffer exceptional and extremely unusual
hardship, his equivocal response does not establish that his
children would accompany him to El Salvador. See 8 U.S.C.
8
§§ 1229a(c)(4)(A)(i) (placing burden of proof on alien to
establish eligibility for relief from removal),
1229b(b)(1)(D) (the alien must “establish[] that removal
would result in exceptional and extremely unusual hardship”).
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. 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 of Court
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