Ramirez v. Barr ( 2019 )

17-1926
Ramirez v. Barr
BIA
Weisel, IJ
A208 283 098/099
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 17th day of May, two thousand nineteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SONIA YAMILETH RAMIREZ,
14 MARIA JOSE CASTELLANOS-RAMIREZ,
15 Petitioners,
16
17 v. 17-1926
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Nicholas J. Mundy, Brooklyn, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Brianne Whelan
28 Cohen, Senior Litigation Counsel;
29 Lindsay Corliss, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of
1 Justice, Washington, DC.
2
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioners Sonia Yamileth Ramirez (“Ramirez”) and Maria
8 Jose Castellanos-Ramirez, natives and citizens of Honduras,
9 seek review of a May 18, 2017, decision of the BIA affirming
10 an October 20, 2016, decision of an Immigration Judge (“IJ”)
11 denying Ramirez’s application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Sonia Yamileth Ramirez, Maria Jose
14 Castellanos-Ramirez, Nos. A 208 283 098/099 (B.I.A. May 18,
15 2017), aff’g No. A 208 283 098/099 (Immig. Ct. N.Y. City Oct.
16 20, 2016). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 We have reviewed the IJ’s decision as supplemented by
19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
20 Cir. 2005). We review factual findings for substantial
21 evidence and legal issues de novo. See 8 U.S.C.
22 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
23 (2d Cir. 2009).
2
1 Asylum and Withholding of Removal
2 An applicant for asylum or withholding of removal “must
3 establish that race, religion, nationality, membership in a
4 particular social group, or political opinion was or will
5 be at least one central reason for” the claimed
6 persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i) (asylum),
7 1231(b)(3)(A) (withholding); Matter of C-T-L, 25 I. & N.
8 Dec. 341, 346 (B.I.A. 2010) (holding that the “one central
9 reason” standard also applies to withholding of removal).
10 Ramirez asserts that she was targeted and fears persecution
11 on account of her membership in a particular social group
12 of educated Honduran women employed in high-ranking
13 positions. To constitute a particular social group, a
14 group must be “(1) composed of members who share a common
15 immutable characteristic, (2) defined with particularity,
16 and (3) socially distinct within the society in question.”
17 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014);
18 see Paloka v. Holder, 762 F.3d 191, 195–97 (2d Cir. 2014).
19 An “immutable characteristic” is one that members of the
20 group “either cannot change, or should not be required to
21 change because it is fundamental to their individual
22 identities or consciences.” Ucelo-Gomez v. Mukasey, 509
3
1 F.3d 70, 72-73 (2d Cir. 2007) (internal quotation marks
2 omitted). “Particularity refers to whether the group is
3 sufficiently distinct that it would constitute a discrete
4 class of persons.” Matter of W-G-R-, 26 I. & N. Dec. 208,
5 210 (BIA 2014) (internal quotation marks omitted). “To be
6 socially distinct, a group . . . must be perceived as a
7 group by society.” Matter of M-E-V-G-, 26 I. & N. Dec. at
8 240. We review for substantial evidence whether an
9 applicant was targeted on account of group membership, see
10 Edimo-Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir.
11 2006), but review the agency’s determination of whether a
12 group is cognizable de novo, see Paloka, 762 F.3d at 195.
13 We find no error in the agency’s conclusion that Ramirez
14 failed to identify a cognizable social group of “educated
15 Honduran women with high-ranking positions, pursuing a
16 career” or that she was targeted based on those
17 characteristics.
18 “A particular social group must be defined by
19 characteristics that provide a clear benchmark for
20 determining who falls within the group.” Matter of M-E-V-
21 G-, 26 I&N Dec. at 239. We have agreed with the BIA’s
22 determination that a group based on wealth is not
4
1 sufficiently particular: “When the harm visited upon
2 members of a group is attributable to the incentives
3 presented to ordinary criminals rather than to persecution,
4 the scales are tipped away from considering those people a
5 ‘particular social group’ within the meaning of the INA.”
6 Ucelo-Gomez, 509 F.3d at 73. Ramirez attempts to
7 distinguish her group from the group of wealthy Guatemalans
8 at issue in Ucelo-Gomez by asserting that the gang targeted
9 her because it sought to overcome her ability, as a
10 Honduran woman, to hold a “high-ranking” position and her
11 education made her a target because it qualified her for
12 such a position. But Ramirez did not show that the
13 characteristics of being “educated” or employed in a “high-
14 ranking position” have “commonly accepted definitions” in
15 Honduran society such that the social group has “definable
16 boundaries.” Matter of W-G-R-, 26 I. & N. Dec. at 214.
17 Accordingly, Ramirez did not demonstrate that educated,
18 Honduran women with high-ranking positions can be defined
19 with sufficient particularity as required for recognition
20 as a particular social group. See Paloka, 762 F.3d at 195–
21 96.
22 Moreover, even assuming such a group would be cognizable,
5
1 Ramirez did not show that the gang members targeted her for
2 any reason other than money. Her affidavit mentioned that
3 she worked for the institute for Honduran Development and
4 that gangs in Honduras “kill and extort innocent people,
5 especially those who are financially stable.” Ramirez
6 testified that she attended university, but that her highest
7 level of completed education was high school, that she worked
8 in administrative roles for a micro-finance company for six
9 years, and that gang members targeted her for extortion
10 because of her employment and her perceived access to company
11 funds. Ramirez did not mention her proposed social group in
12 her application or before the IJ, nor did she testify that
13 the gang targeted her because she was educated or female or
14 because her position with her company was high-ranking or
15 powerful. Although Ramirez’s country conditions evidence
16 reveals substantial violence in Honduras, including violence
17 against women, the evidence does not show that women in the
18 workforce, much less those who were educated and in high-
19 ranking positions, are particular targets of gangs. Ramirez
20 established only that she was targeted for extortion because
21 of her perceived wealth and employment status, which, absent
22 more, are not cognizable social groups. See Ucelo-Gomez, 509
6
1 F.3d at 73; Matter of Acosta, 19 I. & N. Dec. 211, 234 (B.I.A.
2 1985) (holding that taxi drivers targeted for persecution did
3 not belong to a social group because membership could be
4 changed).
5 Because Ramirez did not establish either a cognizable
6 social group or that the gang targeted her for any reason
7 other than her money or perceived access to money, she did
8 not establish her eligibility for asylum of withholding of
9 removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i) (asylum),
10 1231(b)(3)(A) (withholding).
11 CAT
12 An applicant for CAT relief must show that “it is more
13 likely than not” that she will be tortured, but need not
14 show any link to a protected ground. See 8 C.F.R.
15 § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d
16 Cir. 2004). To constitute torture, the harm must be
17 “inflicted by or at the instigation of or with the consent
18 or acquiescence of a public official or other person acting
19 in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
20 “Acquiescence of a public official requires that the public
21 official, prior to the activity constituting torture, have
22 awareness of such activity and thereafter breach his or her
7
1 legal responsibility to intervene to prevent such
2 activity.” Id. § 1208.18(a)(7). Cognizable acquiescence
3 “requires only that government officials know of or remain
4 willfully blind to an act and thereafter breach their legal
5 responsibility to prevent it.” Khouzam, 361 F.3d at 171.
6 In assessing the likelihood of torture, “all evidence
7 relevant to the possibility of future torture shall be
8 considered, including, but not limited to . . . [e]vidence
9 of past torture,” the possibility of relocation within the
10 country, “[e]vidence of gross, flagrant or mass violations
11 of human rights . . . and . . . relevant information
12 regarding conditions in the country of removal.” 8 C.F.R.
13 § 1208.16(c)(3).
14 The agency did not err in concluding that Ramirez failed
15 to show that the Honduran government will more likely than
16 not acquiesce to her torture by gangs. Ramirez testified
17 that she was first approached by gang members in March 2015,
18 but did not file a police report until June 2015. And she
19 admitted that she could not identify the gang members because
20 they covered their faces and told her not to look at them.
21 Although Ramirez said that the police “did not solve anything”
22 and did not tell her they would protect her, they took the
8
1 report and followed up with her. Ramirez does not explain
2 how the police could have solved her problem in the few days
3 between her report and her departure from Honduras.
4 Accordingly, she did not meet her burden of showing that the
5 police would likely acquiesce to her torture by gang members.
6 See Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2013)
7 (“Evidence that the police were aware of a particular crime,
8 but failed to bring the perpetrators to justice, is not in
9 itself sufficient to establish acquiescence in the crime.”).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
21
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