Barrios Roblero v. Barr ( 2020 )

18-1674
Barrios Roblero v. Barr
BIA
Ruehle, IJ
A205 152 943
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 20th day of March, two thousand twenty.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 JESUS MANUEL BARRIOS ROBLERO,
14 Petitioner,
15
16 v. 18-1674
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Samuel N. Iroegbu, Albany, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Jessica E. Burns, Senior
27 Litigation Counsel; Don G.
28 Scroggin, Trial Attorney, Office
1 of Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Jesus Manuel Barrios Roblero, a native and
9 citizen of Mexico, seeks review of a May 8, 2018, decision of
10 the BIA affirming a July 10, 2017, decision of an Immigration
11 Judge (“IJ”) denying his application for asylum, withholding
12 of removal, and relief under the Convention Against Torture
13 (“CAT”). In re Barrios Roblero, No. A 205 152 943 (B.I.A.
14 May 8, 2018), aff’g No. A 205 152 943 (Immig. Ct. Buffalo July
15 10, 2017). We assume the parties’ familiarity with the
16 underlying facts and procedural history in this case.
17 We have considered the IJ’s decision as supplemented and
18 modified by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268,
19 271 (2d Cir. 2005). The applicable standards of review are
20 well established. See 8 U.S.C. § 1252(b)(4)(B); Paloka v.
21 Holder, 762 F.3d 191, 195 (2d Cir. 2014) (“Courts review de
22 novo the legal determination of whether a group constitutes
23 a ‘particular social group’ under the [Immigration and
2
1 Nationality Act].”); Yanqin Weng v. Holder, 562 F.3d 510,
2 513, 516 (2d Cir. 2009) (reviewing denial of CAT protection
3 under the substantial evidence standard).
4 Asylum and Withholding of Removal
5 To establish eligibility for asylum or withholding of
6 removal based on membership in a particular social group,
7 Barrios Roblero had to “establish both that the group itself
8 was cognizable, . . . and that the alleged persecutors
9 targeted [him] on account of h[is] membership in that group.”
10 Paloka, 762 F.3d at 195 (internal quotation marks and citation
11 omitted). To be cognizable, a social group must be
12 “(1) composed of members who share a common immutable
13 characteristic, (2) defined with particularity, and
14 (3) socially distinct within the society in question.” Id.
15 (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A.
16 2014)). “‘Particularity’ refers to whether the group is
17 ‘sufficiently distinct’ that it would constitute ‘a discrete
18 class of persons.’” Matter of W-G-R-, 26 I. & N. 208, 210
19 (B.I.A. 2014) (quoting Matter of S-E-G-, 24 I. & N. Dec. 579,
20 584 (B.I.A. 2008)). Social distinction requires that the
21 shared traits that characterize the social group be
22 sufficient for the group to “be perceived as a group by
3
1 society.” Id. at 216; see also Matter of M-E-V-G-, 26 I. &
2 N. Dec. at 240; Paloka, 762 F.3d at 196 (“[W]hat matters is
3 whether society as a whole views the group as socially
4 distinct, not the persecutor’s perception.”). Once the
5 applicant has established a cognizable social group, he must
6 demonstrate a nexus between his membership in that group and
7 the persecution he suffered. Paloka, 762 F.3d at 196-97.
8 The agency reasonably found that Barrios Roblero’s
9 proposed social group, “young men who are escaping
10 recruitment of the drug cartel in Mexico” lacked
11 particularity and social distinction. He presented no
12 evidence that Mexican society regards “young men who are
13 escaping recruitment of the drug cartel” as a distinct social
14 group, or that the proposed group is identified or treated
15 differently by society. Cf. Ucelo-Gomez v. Mukasey, 509 F.3d
16 70, 73–74 (2d Cir. 2007) (deferring to BIA’s conclusion that
17 “affluent Guatemalans” are not sufficiently particular or
18 socially distinct, in part because it is impractical to
19 distinguish petitioners who are targeted because of their
20 group membership from those who are targeted for criminal
21 motives). The only unifying characteristic of the group,
22 which could be composed of males of various ages and
4
1 backgrounds, is the attempted recruitment. See Ucelo-Gomez,
2 509 F.3d at 73 (“[A]lthough the existence of persecution is
3 a relevant factor, a social group cannot be defined
4 exclusively by the fact that its members have been subjected
5 to harm.” (internal quotations marks and emphasis omitted));
6 see also Paloka, 762 F.3d at 196 (“[A] persecutor’s perception
7 alone is not enough to establish a cognizable social group.”).
8 Because Barrios Roblero failed to establish a cognizable
9 social group, the agency did not err in denying asylum and
10 withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
11 1231(b)(3)(A).
12 Convention Against Torture
13 To receive protection under the CAT, an applicant must
14 “establish that it is more likely than not that he . . . would
15 be tortured if removed to the proposed country of removal.”
16 8 C.F.R. § 1208.16(c)(2). “Torture is defined as any act by
17 which severe pain or suffering, whether physical or mental,
18 is intentionally inflicted on a person . . . at the
19 instigation of or with the consent or acquiescence of a public
20 official or other person acting in an official capacity.” 8
21 C.F.R. § 1208.18(a)(1). “[T]orture requires . . . that
22 government officials know of or remain willfully blind to an
5
1 act and thereafter breach their legal responsibility to
2 prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.
3 2004).
4 The agency reasonably concluded that there was
5 insufficient evidence to establish that Barrios Roblero would
6 more likely than not be tortured. His evidence described
7 general conditions in Mexico. Without more, such evidence
8 is insufficient to demonstrate that Barrios Roblero will more
9 likely than not be targeted and tortured by the cartel and
10 that if he were targeted that Mexican officials would consent
11 or acquiesce to his torture. See Mu-Xing Wang v. Ashcroft,
12 320 F.3d 130, 144 (2d Cir. 2003) (requiring showing that
13 someone in applicant’s “particular alleged circumstances”
14 would be tortured); Mu Xiang Lin v. U.S. Dep’t of Justice,
15 432 F.3d 156, 160 (2d Cir. 2005) (requiring “particularized
16 evidence” beyond general country conditions to support a CAT
17 claim).
18 For the foregoing reasons, the petition for review is
19 DENIED. All pending motions and applications are DENIED and
20 stays VACATED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe,
23 Clerk of Court
6