Ordonez Azmen v. Holder , 593 F. App'x 65 ( 2014 )

13-2769
Ordonez Azmen v. Holder
BIA
Gordon-Uruakpa, IJ
A096 482 048
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of December, two thousand fourteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 MARIO ORDONEZ AZMEN, AKA DAVID PEREZ,
14 AKA MARIO ENRIQUE ORDONEZ AZMEN,
15 Petitioner,
16
17 v. 13-2769
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: David M. Sperling, Law Offices of
25 David M. Sperling, Central Islip,
26 NY; Charles Roth, Lisa Koop,
27 National Immigrant Justice Center,
28 Chicago, IL; Gaelen Schumann, Hayley
29 Steptoe, Julie Decker, Student
30 Attorneys; Benjamin Richard Casper,
1 Katherine Evans, University of
2 Minnesota Law School, Center for New
3 Americans, Federal Immigration
4 Litigation Clinic, Minneapolis, MN.
5
6 (Fatma E. Marouf, Associate
7 Professor of Law, University of
8 Nevada, submitted a brief for amicus
9 curiae William S. Boyd School of Law
10 Immigration Clinic, in support of
11 Petitioner.)
12
13 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
14 General; Papu Sandhu, Senior
15 Litigation Counsel, Margaret J.
16 Perry, Senior Litigation Counsel,
17 Office of Immigration Litigation,
18 United States Department of Justice,
19 Washington, D.C.
20
21 UPON DUE CONSIDERATION of this petition for review of a
22 Board of Immigration Appeals (“BIA”) decision, it is hereby
23 ORDERED, ADJUDGED, AND DECREED that the petition for review
24 is DENIED in part, GRANTED in part, and REMANDED to the
25 agency.
26 Mario Ordonez Azmen, a native and citizen of Guatemala,
27 seeks review of a June 27, 2013, decision of the BIA
28 affirming the December 9, 2010, decision of an Immigration
29 Judge (“IJ”) denying his application for asylum and
30 statutory withholding of removal. In re Mario Ordonez
31 Azmen, No. A096 482 048 (B.I.A. June 27, 2013), aff’g No.
32 A096 482 048 (Immig. Ct. N.Y. City Dec. 9, 2010). We assume
2
1 the parties’ familiarity with the underlying facts and
2 procedural history in this case.
3 Under the circumstances of this case, we consider both
4 the IJ’s and the BIA’s opinions “for the sake of
5 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
6 2008). The applicable standards of review are well
7 established. See 8 U.S.C. § 1252(b)(4)(B); Guan Shan Liao
8 v. United States, 293 F.3d 61, 66 (2d Cir. 2002).
9 We grant the motion of the University of Nevada School
10 of Law Immigration Clinic to submit an amicus curiae brief.
11 Asylum
12 To be eligible for asylum, an individual must apply
13 within one year after the date of his arrival in the United
14 States. 8 U.S.C. § 1158(a)(2)(B). There is an exception to
15 this deadline if the applicant demonstrates “the existence
16 of changed circumstances which materially affect the
17 applicant’s eligibility for asylum.” 8 U.S.C.
18 § 1158(a)(2)(D). We lack jurisdiction to review a challenge
19 to the agency’s determination that an applicant did not
20 demonstrate changed circumstances unless the challenge
21 presents a legal question or constitutional claim. 8 U.S.C.
22 §§ 1158(a)(3), 1252(a)(2)(D). Ordonez Azmen argues that the
3
1 BIA erred as a matter of law because it mischaracterized and
2 ignored evidence showing changed circumstances. He is
3 correct: the BIA erroneously stated that Ordonez Azmen did
4 not raise “changed circumstances” with the IJ, and that he
5 testified only to the 2004 murder of one former Mara 18 gang
6 member. See Gui Yin Liu v. INS, 508 F.3d 716, 721-22 (2d
7 Cir. 2007). To the contrary, Ordonez Azmen also testified
8 that a former member of Mara 18 was murdered in 2010,
9 shortly before Ordonez Azmen’s merits hearing.
10 But the BIA’s error was harmless. Ordonez Azmen argues
11 that the 2010 murder constitutes “changed circumstances.”
12 This argument is without merit. Ordonez Azmen applied for
13 asylum in 2008, two years prior to the 2010 murder. A
14 change in circumstances is relevant if it affects
15 eligibility for asylum – in other words, the event must
16 trigger fear of persecution and, in turn, an asylum
17 application. A 2010 murder could not have triggered Ordonez
18 Azmen’s 2008 asylum application. While the 2010 murder
19 corroborates Ordonez Azmen’s fears, because it occurred
20 after Ordonez Azmen had applied for asylum, it is not
21 evidence of a change that caused him to reconsider his
22 eligibility for asylum. See 8 C.F.R. § 1208.4(a)(4)(ii) (an
4
1 alien shall apply for asylum within a reasonable period of
2 the changed circumstances); Xiao Ji Chen v. U.S. Dep’t of
3 Justice, 471 F.3d 315, 320 n.1 (2d Cir. 2006). As a result,
4 the agency did not err in pretermitting Ordonez Azmen’s
5 asylum application as untimely.
6 Withholding of Removal under the INA and the Convention
7 Against Torture
8 Ordonez Azmen argues that even if his asylum
9 application was untimely, he is eligible for statutory
10 withholding of removal under the INA because he belongs to a
11 cognizable social group. Ordonez Azman was granted
12 withholding of removal under the Convention Against Torture
13 (“CAT”). A threshold question is whether statutory
14 withholding and CAT withholding differ. The relevant
15 regulations suggest that these two forms of relief entail
16 the same benefits and restrictions. See 8 C.F.R.
17 § 1208.16(d). There may, however, be a difference with
18 regard to termination. The government can terminate
19 statutory withholding by showing that an alien will no
20 longer be persecuted on account of a protected ground; it
21 can terminate CAT withholding by showing that an alien will
22 no longer be tortured. See 8 C.F.R. § 1208.24(f);
23 Regulations Concerning the Convention Against Torture, 64
5
1 Fed. Reg. 8478, 8482 (Feb. 19, 1999). However, because the
2 BIA does not appear to have discussed differences between
3 statutory and CAT withholding in a published decision, we
4 remand for it to address that threshold issue in the first
5 instance.
6 Particular Social Group
7 Ordonez Azmen sought statutory withholding on the
8 ground that he is a member of a particular social group that
9 shares some common, immutable characteristic that is beyond
10 the power of the individual to change, or is so fundamental
11 that it ought not be required to be changed. 8 U.S.C.
12 § 1231(b)(3)(A); Gashi v. Holder, 702 F.3d 130, 136 (2d Cir.
13 2012). A shared, immutable characteristic alone does not
14 establish a particular social group, however. The group
15 also must be defined with sufficient particularity: it must
16 be finite, not indeterminate. Gashi, 702 F.3d at 136-37. A
17 group must be distinct – society must perceive those with
18 the relevant characteristic as members of a group. Ucelo-
19 Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per
20 curiam); Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d
21 Cir. 2007). To be socially distinct, a group need not be
22 seen by society; it must instead be perceived as a group by
23 society. Matter of W-G-R-, 26 I&N Dec. 208, 216-17; see
6
1 Matter of M-E-V-G-, 26 I&N Dec. 227; see also Paloka v.
2 Holder, 762 F.3d 191, 195, 197 (2d Cir. 2014) (approving the
3 BIA’s clarification in Matter of W-G-R- and Matter of M-E-V-
4 G- of “the legal landscape for adjudicating ‘particular
5 social group’ claims”).
6 Matter of W-G-R-, Matter of M-E-V-G- (issued in
7 tandem), and Paloka were all decided while Ordonez Azmen’s
8 petition was pending before the Court. The Government
9 argues that remand is warranted to allow the BIA to “bring
10 its expertise to bear upon the matter; it can evaluate the
11 evidence; it can make an initial determination; and, in
12 doing so, it can, through informed discussion and analysis,
13 help a court later determine whether its decision exceeds
14 the leeway that the law provides.” Paloka, 762 F.3d at 197-
15 98 (internal quotations and alterations omitted).
16 Conversely, Ordonez Azmen “finds the government’s remand
17 argument . . . quite odd,” concluding that the BIA’s case
18 law “makes the result on remand a foregone conclusion.” In
19 Matter of W-G-R-, the BIA concluded that a group defined as
20 “former members of the Mara 18 gang in El Salvador who have
21 renounced their gang membership” was not cognizable because
22 it lacked sufficient particularity. 26 I&N Dec. at 221-23.
23 However, Ordonez Azmen is a former member of Mara 18 in
24 Guatemala City; the applicant in W-G-R- was from El
7
1 Salvador. Furthermore, the BIA concluded that the group
2 “former members of Mara 18 in El Salvador” lacked
3 particularity because it was too diffuse, and too broad and
4 subjective — as described, it could include persons of any
5 age, sex, or background, and was not limited to those who
6 had a meaningful involvement with the gang. Id. at 221-22.
7 On remand, the BIA can consider whether Ordonez Azmen’s
8 proposed social group is sufficiently particular and
9 distinct to be cognizable under the agency’s recent
10 decisions. See Paloka, 762 F.3d at 198-99.
11 For the foregoing reasons, the petition for review is
12 GRANTED, and the case is REMANDED to the BIA for further
13 proceedings consistent with this decision. As we have
14 completed our review, any stay of removal that the Court
15 previously granted in this petition is VACATED, and any
16 pending motion for a stay of removal in this petition is
17 DISMISSED as moot. Any pending request for oral argument in
18 this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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