Arias-De Alvarado v. Holder ( 2011 )

10-544-ag
Arias-De Alvarado v. Holder
BIA
Brennan, IJ
A098 722 754
A098 722 755
A098 722 756
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 21st day of April, two thousand eleven.
PRESENT:
RALPH K. WINTER,
ROGER J. MINER,
ROBERT A. KATZMANN,
Circuit Judges.
______________________________________
EMILIA ARIAS-DE ALVARADO, CINDY
MARILUZ ALVARADO-ARIAS, JUAN CARLOS
ARGETA-ARIAS,
Petitioners,
v. 10-544-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Andrew P. Johnson, Law Office of
Andrew P. Johnson, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Carl H. McIntyre, Assistant Director;
John J. W. Inkeles, Trial Attorney,
Office of Immigration Litigation,
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 GRANTED and the case REMANDED for further proceedings
consistent with this order.
Petitioners, natives and citizens of El Salvador, seek
review of a January 15, 2010 order of the BIA vacating the
February 27, 2008 decision of Immigration Judge (“IJ”) Noel
A. Brennan, which granted their application for asylum. In
re Emilia Arias-De Alvarado, Nos. A098 722 754/755/756
(B.I.A. Jan. 15, 2010), vacating Nos. A098 722 754/755/756
(Immig. Ct. N.Y. City Feb. 27, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
In the circumstances of this case, this Court reviews
the decision of the BIA only. See Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005). We review the agency’s
factual findings for substantial evidence. See 8 U.S.C. §
1252(b)(4)(B)(2006); Corovic v. Mukasey, 519 F.3d 90, 95 (2d
Cir. 2008). We review de novo questions of law and the
application of law to undisputed fact. Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
2
Substantial evidence does not support the BIA’s
determination that Arias-De Alvarado’s purported social
group, single mothers without male protection, is not
cognizable under the Immigration and Nationality Act. The
BIA has long interpreted the term “social group” to mean “a
group of persons all of whom share a common, immutable
characteristic.” Matter of Acosta, 19 I. & N. Dec. 211, 233
(B.I.A. Mar.1, 1985). A cognizable social group must (1)
exhibit a shared characteristic that is socially visible to
others in the community and (2) be defined with sufficient
particularity. See In re A-M-E & J-G-U-, 24 I. & N. Dec.
69, 74-76 (B.I.A. Jan.31, 2007) aff’d by Ucelo-Gomez v.
Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per curiam). Here,
the BIA’s finding that the purported group lacked the
requisite social visibility or particularity is not
supported by any explanation or analysis. See Beskovic v.
Gonzales, 467 F.3d 223, 227 (2d Cir. 2006) (holding that the
Court requires a “certain minimum level of analysis from
[agency decisions] denying asylum, and indeed must require
such if judicial review is to be meaningful”) (quoting
Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)).
3
Moreover, although the BIA observed that Arias-De
Alvarado’s “status as a single female parent without a male
figure to protect her may have made her more vulnerable,”
App. 4, the BIA does not appear to have considered whether
her status was a “central reason” why she was targeted. See
8 U.S.C. § 1158(b)(1)(B)(i)(2006) (providing that “the
applicant must establish that [a protected ground] was or
will be at least one central reason for” the claimed
persecution); see also Osorio v. INS, 18 F.3d 1017, 1028 (2d
Cir. 1994) (holding that “[t]he plain meaning of the phrase
‘persecution on account of the victim’s political opinion,’
does not mean persecution solely on account of the victim’s
political opinion”)(emphasis in original).
Because the BIA has not provided sufficient analysis
for our review to be meaningful, remand is appropriate. See
Beskovic, 467 F.3d at 227.
For the foregoing reasons, the petition for review is
GRANTED and the case REMANDED for further proceedings
consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4