Oliva-Flores v. Holder

10-5090-ag
Oliva-Flores v. Holder
BIA
LaForest, IJ
A097 831 363
A097 831 364
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 26th day of April, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 WILLIAM WESLEY OLIVA-FLORES,
14 JIMMY ARIEL FLORES,
15 Petitioners,
16
17 v. 10-5090-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Howard L. Baker, Wilens & Baker, P.C.,
25 New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General;
28 Paul Fiorino, Senior Litigation
1 Counsel; Katherine A. Smith, Trial
2 Attorney, Office of Immigration
3 Litigation, United States Department of
4 Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10
11 Petitioners William Wesley Oliva-Flores and Jimmy Ariel
12 Flores, natives and citizens of Guatemala, seek review of a
13 November 23, 2010, decision of the BIA affirming the September
14 22, 2008, decision of Immigration Judge (“IJ”) Brigitte
15 LaForest denying their applications for asylum, withholding of
16 removal and relief under the Convention Against Torture
17 (“CAT”). In re William Wesley Oliva-Flores, Jimmy Ariel
18 Flores, Nos. A097 831 363/364 (B.I.A. Nov. 23, 2010), aff’g
19 Nos. A097 831 363/364 (Immig. Ct. N.Y. City Sept. 22, 2008).
20 We assume the parties’ familiarity with the underlying facts
21 and procedural history of the case.
22
23 Under the circumstances of this case, we have considered
24 both the IJ’s decision and the BIA’s decision “for the sake of
25 completeness.” See Lecaj v. Holder, 616 F.3d 111, 114 (2d
26 Cir. 2010) (internal quotation marks omitted). The applicable
27 standards of review are well-established. See 8 U.S.C.
28 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
29 162, 165-66 (2d Cir. 2008).
30
31 Petitioners argue that the agency erroneously found that
32 they were not members of a particular social group comprised
33 of young Guatemalan men resisting gang recruitment. The BIA
34 has long interpreted the term “social group” to mean “a group
35 of persons all of whom share a common, immutable
36 characteristic.” Matter of Acosta, 19 I.&N. Dec. 211, 233
37 (BIA 1985). An “immutable characteristic” is one that members
38 of the group “either cannot change, or should not be required
39 to change because it is fundamental to their individual
40 identities or consciences.” Id. A cognizable social group
41 must: (1) exhibit a shared characteristic that is socially
42 visible to others in the community; and (2) be defined with
43 sufficient particularity. See Matter of A-M-E & J-G-U-, 24
44 I.&N. Dec. 69, 74-76 (BIA 2007), aff’d by Ucelo-Gomez v.
2
1 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). The “social
2 visibility” test requires that the shared traits that
3 characterize the social group be sufficient to identify
4 members of that group to others in the community, particularly
5 to potential persecutors. See Matter of C-A-, 23 I.&N. Dec.
6 951, 960-61 (BIA 2006); see also Matter of A-M-E & J-G-U-, 24
7 I.&N. Dec. at 74. “[B]roadly-based characteristics such as
8 youth and gender” will not by themselves suffice to define a
9 particular social group. Gomez v. INS, 947 F.2d 660, 664 (2d
10 Cir. 1991). Rather, these shared traits must be “recognizable
11 and discrete.” Further, a social group cannot be defined
12 exclusively by the fact that its members have been subjected
13 to harm. Matter of A-M-E & J-G-U-, 24 I.&N. Dec. at 74.
14
15 In this case, the agency reasonably relied on its
16 decision in Matter of S-E-G-, 24 I.&N. Dec. 579, 582-88 (BIA
17 2008), to find that Petitioners’ proposed social group – young
18 Guatemalan men who have resisted gang recruitment – lacks the
19 particularity and social visibility required for it to
20 constitute a particular social group. As in Matter of S-E-G-,
21 the social group is amorphous and fails the particularity
22 requirement because young Guatemalan men “make up a
23 potentially large and diffuse segment of society.” Id. at
24 585. Further, the Petitioners offered “no evidence . . . to
25 show that gang members limit recruitment efforts to male
26 children who fit the . . . description, or do so in order to
27 punish them for these characteristics.” Id. at 585.
28 Similarly, the Petitioners offered no evidence that their
29 proposed social group of young Guatemalan men who resist gang
30 recruitment was socially visible, as there was no evidence in
31 the record that they were in any different situation than any
32 other victim of gang violence in Guatemala. Supporting
33 documents provided by the Petitioners reflect, in fact, that
34 gangs in Guatemala do not limit their recruitment efforts to
35 young men; rather they have attempted to recruit children as
36 young as 13, as well as women. The Petitioners’ testimony
37 described a state of general lawlessness in Guatemala where
38 everyone is subject to harassment and violence from the gang
39 members.
40
41 Petitioners argue that the agency’s application of the
42 particularity and social visibility elements in Matter of S-E-
43 G- was too rigid and did not comport with Matter of Acosta.
44 While the BIA’s decision in Matter of S-E-G- is not binding on
3
1 this Court, its analysis is consistent with our case law on
2 similar issues. See Ucelo-Gomez, 509 F.3d at 73 (giving
3 Chevron deference to BIA decision requiring an applicant to
4 demonstrate social visibility and particularity in order to
5 show that he was persecuted on account of his membership in a
6 particular group). Because Petitioners did not present the
7 agency with any evidence to compel the conclusion that
8 Guatemalan men who resist gangs are a socially visible segment
9 of the population, the agency did not err in concluding that
10 the group does not constitute a “particular social group.”
11 See Matter of S-E-G-, 24 I. & N. Dec. at 582-88; see also
12 Ucelo-Gomez, 509 F.3d at 73.
13
14 Petitioners argue that they are also members of a
15 particular social group comprised of “young males from lower
16 economic classes who resist gang membership.” Petitioners,
17 however, did not raise this argument with the agency, and we
18 decline to consider it. See Zhong v. U.S. Dep’t of Justice,
19 480 F.3d 104, 124 (2d Cir. 2007).
20
21 Further, the agency reasonably concluded that the
22 Petitioners were not subject to persecution on the basis of
23 any actual or imputed political opinion. In order to
24 demonstrate that persecution (past or prospective) bears a
25 nexus to an applicant’s political opinion, the applicant must
26 show that the persecutor was motivated by his or her
27 perception of the applicant’s opinion, rather than merely by
28 his or her own opinion. See Zhang v. Gonzales, 426 F.3d 540,
29 545 (2d Cir. 2005). It is insufficient to demonstrate that a
30 persecutor acted or is likely to act from “a generalized
31 political motive.” INS v. Elias-Zacarias, 502 U.S. 478, 482
32 (1992) (internal quotation marks and citations omitted).
33 Here, nothing in the record compels the conclusion that the
34 gang members targeted the Petitioners on the basis of any
35 actual or imputed political opinion. The agency did not err
36 in finding that Petitioners failed to demonstrate the nexus to
37 a protected ground required to establish their eligibility for
38 asylum and withholding of removal. See 8 U.S.C.
39 § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); see also
40 Elias-Zacarias, 502 U.S. at 482-83.
41
42 Finally, the agency reasonably concluded that Petitioners
43 failed to demonstrate a likelihood of torture by or with the
44 acquiescence of the government of El Salvador. The agency’s
4
1 regulations define torture, in pertinent part, “as any act by
2 which severe pain or suffering . . . is intentionally
3 inflicted . . . [for certain purposes] when such pain or
4 suffering is inflicted by or at the acquiescence of a public
5 official or other person acting in an official capacity.”
6 8 C.F.R. § 1208.18(a)(1). We have held that “acquiescence . .
7 . requires only that government officials know of or remain
8 willfully blind to an act and thereafter breach their legal
9 responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d
10 161, 170-71 (2d Cir. 2004). Petitioners argue that
11 substantial evidence in the record demonstrates that the
12 Guatemalan government’s failure to control the criminal gangs
13 constitutes a “pattern or practice of persecution” such that
14 they are entitled to CAT relief. The Petitioners’ argument
15 conflates the standard for CAT relief with the standard for
16 asylum and withholding of removal. Further, although there
17 was evidence in the record suggesting that the government of
18 Guatemala is not entirely successful in controlling the gangs,
19 Petitioners offered no evidence that this failure rises to
20 acquiescence in the gangs’ activities. Accordingly, the
21 agency did not err in determining that Petitioners failed to
22 demonstrate they would likely be tortured with the
23 acquiescence of Guatemalan government officials. See Khouzam,
24 361 F.3d at 170-71.
25
26 For the foregoing reasons, the petition for review is
27 DENIED. As we have completed our review, any stay of removal
28 that the Court previously granted in this petition is VACATED,
29 and any pending motion for a stay of removal in this petition
30 is DISMISSED as moot. Any pending request for oral argument in
31 this petition is DENIED in accordance with Federal Rule of
32 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
33 34(b).
34
35 FOR THE COURT:
36 Catherine O’Hagan Wolfe, Clerk
37
38
5