Mena Lopez v. Holder ( 2012 )

11-2167-ag
Mena Lopez v. Holder
BIA
Cheng, IJ
A089 081 636
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of March, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JAIME OMAR MENA LOPEZ,
14 Petitioner,
15
16 v. 11-2167-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Sandra P. Nichols, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jennifer L. Lightbody,
28 Senior Litigation Counsel; Edward E
29 Wiggers, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jaime Omar Mena Lopez, a native and citizen
6 of El Salvador, seeks review of the April 29, 2011, decision
7 of the BIA partially affirming the August 11, 2009, decision
8 of Immigration Judge (“IJ”) Mary Cheng denying his
9 application for withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Mena Lopez, No.
11 A089 081 636 (B.I.A. Apr. 29, 2011), aff’g No. A089 081 636
12 (Immig. Ct. N.Y. City Aug. 11, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA. See Xue Hong Yang
17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
18 The applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d
20 99, 110 (2d Cir. 2008). The agency correctly determined
21 that Mena Lopez failed to establish that he would more
22 likely than not be persecuted on a protected ground as he
2
1 failed to demonstrate that he would be targeted based on his
2 membership in a particular social group.
3 Mena Lopez defines his social group as Salvadoran
4 youths who are victims of gang crime and report that crime
5 to the police. Mena Lopez first argues that the agency
6 applied an “impermissibly strict definition of social
7 visibility” in that it required the group to be physically
8 visible such that its members would be “readily identifiable
9 upon sight as a discre[te] group.” According to Mena Lopez,
10 this “social visibility” definition conflicts with that
11 advanced by the United Nations High Commissioner for
12 Refugees (“UNHCR”)—persons “who share a common
13 characteristic other than their risk of being persecuted, or
14 who are perceived as a group by society.” See UNHCR,
15 Guidelines on International Protection: “Membership of a
16 Particular Social Group” Within the Context of Article 1
17 A(2) of the 1951 Convention and/or its 1967 Protocol
18 Relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02
19 (May 7, 2002), available at
20 http://www.unhcr.org/refworld/docid/3d36f23f4.html (“UNHCR
21 Guidelines”).
22 Contrary to Mena Lopez’s argument, the “social
23 visibility” formulation used by the BIA incorporates the
3
1 UNHCR Guidelines and has been approved of by this Court. In
2 resolving Mena Lopez’s appeal, the BIA relied on its
3 precedential decisions in Matter of A-M-E & J-G-U-, 24 I. &
4 N. Dec. 69, 74-76 (BIA 2007), aff'd by Ucelo-Gomez v.
5 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007), and Matter of C-A-,
6 23 I. & N. Dec. 951 (BIA 2006), to determine that Lopez’s
7 proposed group lacked the requisite “social visibility.”
8 In Matter of C-A-, the BIA considered various approaches
9 when determining whether confidential informants against the
10 Cali cartel in Colombia constituted a particular social
11 group, including the UNHCR Guidelines Mena Lopez cites. See
12 Matter of C-A-, 23 I. & N. Dec. at 955-57. Specifically,
13 the BIA found that the UNHCR Guidelines emphasized
14 “visibility” as an “important element in the existence of a
15 particular social group.” Id. at 960 (citing UNHCR
16 Guidelines at 2, 14).
17 Although Matter of C-A- is not binding on this Court,
18 it is entitled to Chevron deference, under which we defer
19 “to any reasonable interpretation of the statute adopted by
20 the Board as the entity charged by Congress with the
21 statute’s enforcement.” Ucelo-Gomez, 509 F.3d at 72; see
22 also Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
23 Inc., 467 U.S. 837, 842-45 (1984). In Ucelo-Gomez, we
4
1 affirmed Matter of A-M-E & J-G-U-, which relied on Matter of
2 C-A-’s “social visibility” test and explicitly held that the
3 social visibility requirement expressed in Matter of C-A- is
4 “consistent with this Court’s reasoning that a ‘particular
5 social group is comprised of individuals who possess some
6 fundamental characteristic in common which serves to
7 distinguish them in the eyes of a persecutor–or in the eyes
8 of the outside world in general.’” See Ucelo-Gomez, 509
9 F.3d at 72-74 (quoting Gomez v. INS, 947 F.3d 660, 664 (2d
10 Cir. 1991)). Thus, the “social visibility” approach
11 utilized in Mena Lopez’s case is consistent with both BIA
12 precedent and the precedent of this Court. See Ucelo-Gomez,
13 509 F.3d at 72-74. Further, to the extent Mena Lopez argues
14 that the UNHCR’s interpretation is binding on the BIA or
15 this Court, such arguments are meritless. Cf. INS v.
16 Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (holding that
17 while the United Nations Handbook on Procedures and Criteria
18 for Determining Refugee Status is “a useful interpretive
19 aid,” “it is not binding on the Attorney General, the BIA,
20 or United States courts”).
21 Moreover, the BIA reasonably concluded that Mena
22 Lopez’s proposed group failed the “social visibility” test.
23 In Ucelo-Gomez, we held that although the existence of past
5
1 harm is relevant to the “social visibility” test, “a social
2 group cannot be defined exclusively by the fact that its
3 members have been subjected to harm.” 509 F.3d at 73
4 (quotation omitted) (emphasis in original). Thus, Mena
5 Lopez may not rely on his status as a victim of gang crime
6 alone to demonstrate his membership in a particular social
7 group.
8 Mena Lopez attempts to narrow his definition by arguing
9 that victims of gang crime who then report it to the police
10 should be considered a discrete group because the act of
11 publicly reporting the crime renders them identifiable and
12 subject to retaliation. His argument is without merit. In
13 this case, as was the situation in Matter of C-A- and Matter
14 of S-E-G-, there is no record evidence indicating that the
15 group of young male Salvadoran victims of gang crime who
16 report it to the police are perceived as a group by society
17 in El Salvador or are subject to a greater threat from gang
18 violence than the general population. See Matter of S-E-G-,
19 24 I. & N. Dec. 579, 587-88 (BIA 2008); Matter of C-A-, 23
20 I. & N. at 961. Mena Lopez has therefore failed to present
21 evidence that “any ‘group,’ as actually perceived” by the
22 criminals he reported to the police, “is much narrower than
23 the general population” of El Salvador. Matter of C-A-, 23
24 I. & N. at 961.
6
1 As we find no error in the agency’s determination that
2 Mena Lopez’s proposed group failed to qualify as a protected
3 ground under the INA, the petition for review is DENIED. As
4 we have completed our review, any stay of removal that the
5 Court previously granted in this petition is VACATED, and
6 any pending motion for a stay of removal in this petition is
7 DISMISSED as moot. Any pending request for oral argument in
8 this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
7