Orellana-Rodriguez v. Sessions , 677 F. App'x 12 ( 2017 )

15-1625
Orellana-Rodriguez v. Sessions
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 for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 15th day of Februay, two thousand seventeen.
4
5 PRESENT:
6 PIERRE N. LEVAL,
7 GUIDO CALABRESI,
8 SUSAN L. CARNEY,
9 Circuit Judges,
10 _________________________________________
11
12 DARBIN OLIVERIO ORELLANA-RODRIGUEZ,
13
14 Petitioner,
15
16 v. No. 15-1625
17
18 JEFF SESSIONS, UNITED STATES ATTORNEY GENERAL,
19
20 Respondent.*
21 _________________________________________
22
23 FOR PETITIONER: LAWRENCE G. SPIVAK, Jamaica, NY.
24
25 FOR RESPONDENT: EVAN P. SCHULTZ (Benjamin C. Mizer,
26 Stephen J. Flynn, on the brief), United States
27 Department of Justice, Washington, DC.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff Sessions is
automatically substituted for former Attorney General Loretta E. Lynch as Respondent.
1
2 Petition for review of a decision of the Board of Immigration Appeals.
3
4 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
5 ADJUDGED, AND DECREED that the petition for review of the April 17, 2015 Board
6 of Immigration Appeals decision is GRANTED.
7 Petitioner Darbin Oliverio Orellana-Rodriguez, a native and citizen of Guatemala,
8 seeks review of an April 17, 2015 decision of the Board of Immigration Appeals (“BIA”),
9 affirming an October 30, 2013 decision of an Immigration Judge (“IJ”) denying Orellana-
10 Rodriguez’s application for asylum, withholding of removal, and relief under the Convention
11 Against Torture (“CAT”). In re Darbin Oliverio Orellana-Rodriguez, No. A94-004-314 (B.I.A.
12 Apr. 17, 2015) (“BIA Op.”), aff’g No. A94-004-314 (Immig. Ct. N.Y. City Oct. 30, 2013). We
13 assume the parties’ familiarity with the underlying facts and procedural history in this case, to
14 which we refer only as necessary to explain our decision.
15 Under the circumstances of this case, we review the IJ’s decision as modified by the
16 BIA. See Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The “substantial
17 evidence” standard of review applies to the IJ’s factual findings, and we review questions of
18 law de novo. See 8 U.S.C. § 1252(b)(4); Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
19 To establish eligibility for asylum and withholding of removal based on membership
20 in a particular social group, see 8 U.S.C. § 1101(a)(42), the applicant must show both that the
21 group is legally cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per
22 curiam), and that the applicant has suffered past persecution or has demonstrated a well-
23 founded fear or likelihood of future persecution on account of his membership in that
24 group, see Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010). A particular social group is
25 cognizable if, among other things, it refers to “a discrete class of persons” and “the relevant
26 society perceives, considers, or recognizes the group as a distinct social group.” In re W-G-R-,
27 26 I. & N. Dec. 208, 210, 217 (B.I.A. 2014), vacated and remanded in part on other grounds by Reyes
28 v. Lynch, 842 F.3d 1125 (9th Cir. 2016); see Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014)
29 (according Chevron deference to the BIA’s construction of “particular social group”). This
2
1 Court and the BIA have both recognized that kinship ties can form the basis of a cognizable
2 particular social group. See, e.g., Vumi v. Gonzales, 502 F.3d 150, 154 (2d Cir. 2007); In re
3 Acosta, 19 I. & N. Dec. 211, 233-34 (B.I.A. 1985), overruled in part on other grounds by In re
4 Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987).
5 The agency’s cursory explanation for its conclusion that Orellana-Rodriguez has not
6 demonstrated a nexus between the harm he fears and a particular social group is insufficient
7 to permit meaningful review and the case therefore requires remand. See Poradisova v.
8 Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite our generally deferential review of IJ and
9 BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions
10 denying asylum, and indeed must require such if judicial review is to be meaningful.”).
11 The IJ denied Orellana-Rodriguez’s claim of past persecution in part because (it
12 ruled) Orellana-Rodriguez never defined or articulated what social group provided the basis
13 for his claim of persecution. The BIA then summarily held that Orellana-Rodriguez’s claims
14 of violence in Guatemala “do not constitute past persecution ‘on account of’ a ground
15 enumerated in the Act,” citing cases holding that a particular social group had not been
16 established. BIA Op. at 2. Contrary to these comments, Orellana-Rodriguez did articulate the
17 putative particular social group that underlay his claims. For example, in Orellana-
18 Rodriguez’s written statement submitted to the IJ, he stated that it was the “combination of
19 [his] family’s relative success in business and past service in the military” that caused them to
20 be targeted by violent gangs. Admin. Rec. 425. When asked during the IJ hearing why he and
21 his family were targeted by the gangs, Orellana-Rodriguez explained that the attacks and
22 threats stemmed from his uncle’s anti-gang activity in the army. Id. at 93-94. And in his brief
23 to the BIA, Orellana-Rodriguez stated that he “did articulate his membership [in] a particular
24 social group . . . as someone who belonged to a family that is against Mara 18 and its
25 affiliated drug group/syndicate.” Id. at 7.
26 The agency failed to discuss and assess whether Orellana-Rodriguez’s specific claims
27 of membership in particular social groups met the applicable standards for a cognizable
28 group. Without such a discussion, its denial of asylum and withholding of removal does not
3
1 allow for meaningful judicial review. At least with respect to his claim of persecution by
2 reason of membership in a group consisting of families of police or military personnel which
3 had moved against drug traffickers and gangs, we see little reason why a group so designated
4 should not qualify. We therefore grant the petition and remand to the agency for
5 consideration of the claim in the first instance. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d
6 Cir. 2006).
7 We also remand the matter to the agency for further consideration of Orellana-
8 Rodriguez’s claim for relief under the CAT. The IJ and BIA denied CAT relief because they
9 held that Orellana-Rodriguez had not pointed to government acquiescence in torture, noting
10 that Orellana-Rodriguez said that the police offered some help to his family in response to
11 the threats against them. Neither the IJ nor the BIA addressed, however, Orellana-
12 Rodriguez’s evidence that Guatemalan police and government officials are corrupt and
13 involved in gang activity or other violence. Where the BIA concluded that the assistance of
14 some government actors overrode the possibility that other actors could be complicit in
15 torture, we have previously remanded a claim for CAT relief to the agency for further
16 review, expressing “significant doubts about this view of what may constitute government
17 acquiescence.” De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir. 2010). Since the IJ and BIA
18 appear to have relied on the approach that we criticized in De La Rosa, we remand so that
19 the agency may fully consider Orellana-Rodriguez’s evidence with respect to the Guatemalan
20 government’s alleged complicity in torture.
21 For the foregoing reasons, we GRANT the petition for review, VACATE the BIA’s
22 order, and REMAND the case to the BIA for further proceedings consistent with this
23 decision.
24 FOR THE COURT:
25 Catherine O’Hagan Wolfe, Clerk of Court
4