Salazar v. Lynch

14-2517-ag
Salazar v. Lynch
BIA
Straus, IJ
A201 149 556/557/558/559/560
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 6th day of April, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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AMPARO SALAZAR, MARLENI NOEMI
BOLANOS-SALAZAR, MELVIN BOLANOS-
SALAZAR, LUCIA BOLANOS-SALAZAR,
GUSTAVO ANTONIO BOLANOS-
SALAZAR,
Petitioners,
v. 14-2517-ag
LORETTA E. LYNCH, United States Attorney
General,
Respondent.
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APPEARING FOR PETITIONERS: GREGORY C. OSAKWE, Hartford,
Connecticut.
APPEARING FOR RESPONDENT: REGINA BYRD, Attorney, Office of
Immigration Litigation (Benjamin C. Mizer,
Principal Deputy Assistant Attorney General;
Francis W. Frasier, Senior Litigation Counsel,
on the brief), U.S. Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Amparo Salazar (“Salazar”), and four of her children, seek review of a
June 18, 2014 decision of the BIA affirming a March 20, 2013 decision of an
Immigration Judge (“IJ”) denying their application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). See In re Amparo Salazar et
al., Nos. A201 149 556/557/558/559/560 (B.I.A. June 18, 2014), aff’g Nos. A201 149
556/557/558/559/560 (Immig. Ct. Hartford, CT Mar. 20, 2013).1 On appeal, Salazar
argues that the agency erred in concluding that petitioners failed to establish (1) past
persecution or a well-founded fear of future persecution, and (2) membership in a
particular social group. We assume the parties’ familiarity with the underlying facts and
procedural history in this case, which we reference only as necessary to explain our
decision to deny the petition.
Under the circumstances of this case, we review the IJ’s decision as modified by
the BIA. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
In so doing, we review factual findings only to determine whether they are supported by
1
Because Salazar’s children are derivative beneficiaries of her application for relief, we
here focus on the mother’s claim. See 8 U.S.C. § 1158(b)(3) (providing that children of
alien who is granted asylum may be granted same status).
2
substantial evidence, and conclusions of law de novo. See Niang v. Holder, 762 F.3d
251, 253 (2d Cir. 2014). To establish eligibility for asylum or withholding of removal, an
applicant must show past persecution or a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion. See 8 U.S.C. § 1101(a)(42); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
Cir. 2004). A well-founded fear of future persecution requires a subjective fear that is
objectively reasonable, i.e., that there is a reasonable possibility that the applicant will be
singled out for persecution, or a pattern or practice of persecuting similarly situated
individuals in the country of removal. See 8 C.F.R. § 1208.13(b)(2)(iii).
Before this court, the Salazars argue that they suffered past persecution, and have
a well-founded fear of future persecution, on account of their membership in social
groups, specifically (1) young Guatemalan males who resist or reject forcible gang
membership; (2) young women who refuse sexual predation by the Mara Salvatrucha 13
(“MS-13”), a Guatemalan gang; and (3) mothers of such young men and women.2 The
2
Although the social groups proposed to the agency differed somewhat from those here
advanced, Salazar did there maintain that, if returned to Guatemala, her sons would be
forced to join one of that country’s prominent gangs, and her daughters would be forced
into prostitution by those same gangs, which would thereby cause Salazar herself to
suffer harm. Accordingly, we reject the government’s exhaustion challenge to Salazar’s
arguments. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1, 122–23 (2d
Cir. 2007) (holding that issue exhaustion under 8 U.S.C. § 1252(d)(1) is not
jurisdictional, and that it is in court’s discretion to review issue not presented to BIA); see
also Paloka v. Holder, 762 F.3d 191, 199 (2d Cir. 2014) (explaining that “refined”
particular social group could be considered on remand because it was “specific” and
“subsidiary” to broad class first proposed).
3
arguments fail on the merits.3
First, the agency rejected the resistance-to-gangs social group as foreclosed by
Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (B.I.A. 2008) (rejecting opposition to gang
membership as indicative of particular social group), and Matter of S-E-G-, 24 I. & N.
Dec. 579, 586–88 (B.I.A. 2008) (holding that neither Salvadoran youth resisting gang
recruitment nor their family members constituted particular social group because they do
not share recognizable and discrete attributes). As the agency itself has held, neither of
these decisions should be read as “a blanket rejection of all factual scenarios involving
gangs.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251 (B.I.A. 2014). Nevertheless, we
agree that the gang-affected group proposed here does not constitute a particular social
group. Among other things, Salazar failed to offer any evidence that individuals who
oppose forced gang recruitment are viewed by Guatemalan society as a distinct group.
See Matter of W-G-R-, 26 I. & N. Dec. 208, 222 (B.I.A. 2014) (explaining that
cognizable social group must be (1) composed of members sharing immutable
3
In analyzing Salazar’s claims we assume, without deciding, that a mother’s fear that her
children will be harmed on account of a protected ground is sufficient to establish her
own asylum claim because Salazar has, in any event, failed to establish a well-founded
fear that her children will be subjected to harm based on a protected ground, i.e.,
membership in groups opposed to forcible gang recruitment and prostitution. See Kone
v. Holder, 596 F.3d 141, 153 n.11 (2d Cir. 2010) (noting that “non-derivative theory of
asylum grounded in a parent’s psychological harm in ‘being forced to witness the pain
and suffering of her daughter’” is open issue in this circuit, and declining to reach it
(quoting Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004))); cf. Abay v. Ashcroft, 368
F.3d at 642 (concluding that mother had well-founded fear that daughter would be forced
to undergo female genital mutilation where, among other things, daughter had been
threatened with FGM, and FGM was “nearly universal in Ethiopia”).
4
characteristic, (2) defined with particularity, and (3) socially distinct, in rejecting group
consisting of foresworn members of Mara 18 gang where, among other concerns, record
contained no evidence that Salvadoran society considers such gang members distinct
social group).4 Indeed, the record is devoid of documentary evidence discussing the
treatment of individuals who refuse to join Guatemalan gangs as opposed to the rest of
Guatemalan society. See id. (noting, in concluding that proposed group did not satisfy
social distinction requirement, that record contained “little documentation discussing the
treatment or status of former gang members”).
No different conclusion is warranted by cases from other circuits addressing gang-
affected groups with distinguishing characteristics not present here. See Henriquez-Rivas
v. Holder, 707 F.3d 1081, 1093–94 (9th Cir. 2013) (concluding that Salvadoran witnesses
who testified against gang members constitute particular social group); Garcia v. Att’y
Gen., 665 F.3d 496, 504 (3d Cir. 2012) (same regarding witnesses who testified against
Guatemalan gangs); Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th Cir. 2011)
(concluding that family members of witnesses who testify against MS-13 gang members
constitute particular social group); Urbina-Mejia v. Holder, 597 F.3d 360, 366–67 (6th
Cir. 2010) (concluding that former gang members constitute particular social group);
Benitez Ramos v. Holder, 589 F.3d 426, 431 (7th Cir. 2009) (same regarding former
4
Insofar as Salazar challenges the BIA’s particularity and social distinction requirements
as inconsistent with the statutory text, that argument is foreclosed by our decision in
Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir. 2007) (affording Chevron
deference to BIA interpretation of statutory “particular social group” requirement);
accord Paloka v. Holder, 762 F.3d at 195–96.
5
members of MS-13 gang). While some authority supports Salazar’s argument that
resisted gang recruitment can delineate a particular social group, see Valdiviezo-
Galdamez v. Att’y Gen., 663 F.3d 582, 608–09 (3d Cir. 2011) (declining to afford
deference to BIA’s particularity and social visibility requirements, and remanding for
further consideration of claim of persecution based on proposed social group of
Honduran youth who have been actively recruited by gangs but refused to join), our own
court is among those to have concluded otherwise, see, e.g., Oliva-Flores v. Holder, 477
F. App’x 774, 775–76 (2d Cir. 2012) (concluding that young Guatemalan men who
resisted gang recruitment lacked requisite particularity and social visibility); Paucar-
Sarmiento v. Holder, 482 F. App’x 656, 658–59 (2d Cir. 2012) (same regarding young
Ecuadorian men); accord Rodas-Orellana v. Holder, 780 F.3d 982, 991 (10th Cir. 2015)
(same regarding El Salvadoran men); De Abarca v. Holder, 757 F.3d 334, 337 (1st Cir.
2014) (concluding that mothers of individuals who resisted gang activity did not
constitute cognizable social group). Thus, we identify no error in the agency’s rejection
of Salazar’s gang-opposition claim.
Second, the agency reasonably concluded that Salazar failed to establish past
persecution or a well-founded fear of future persecution in relation to her forced
prostitution claim.5 We agree with the agency that the “unfulfilled threats” alleged by
5
Although Salazar did not argue before the BIA that the IJ erred in concluding that she
had not established past persecution or a well-founded fear of future persecution, the BIA
nonetheless addressed these issues and, thus, we may consider them here. See Xian Tuan
Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296–97 (2d Cir. 2006) (holding that where
6
Salazar did not constitute past persecution, Gui Ci Pan v. Att’y Gen., 449 F.3d 408, 412–
13 (2d Cir. 2006), and, in any event, those threats related to her sons’ opposition to gang
recruitment; her daughters have never been threatened with forced prostitution. The
agency also reasonably concluded that Salazar failed to establish that any fear of her
daughters being forced into prostitution, even if subjectively reasonable, was objectively
reasonable. The documentary evidence does not manifest a reasonable probability that
Salazar’s daughters would be forced into prostitution if returned to Guatemala. Rather,
the articles submitted by Salazar discuss this risk with respect to street children, former
victims of domestic abuse, and girls from disintegrated families in poor, rural areas of
Central America. Salazar does not contend that her daughters fall into any of these
categories. Cf. Paloka v. Holder, 762 F.3d 191, 194, 198–99 (2d Cir. 2014) (remanding
for further BIA consideration of forced sex trafficking claim where, among other things,
record showed that forced prostitution through sex trafficking “occurs relatively often in
Albania,” particularly with respect to women, like petitioner, who were between ages of
15 and 25). Salazar’s contention that her two cousins were tricked into prostitution,
without more, does not compel a contrary conclusion. See Jian Xing Huang v. INS, 421
F.3d 125, 128–29 (2d Cir. 2005) (explaining that to be objectively reasonable, fear must
have “solid support” in record and be more than speculative). Accordingly, the agency
appropriately rejected this claim.
BIA addresses issues not raised by petitioner, those issues are exhausted and may be
considered by this court).
7
Having failed to meet her burden to establish eligibility for asylum, Salazar
necessarily did not meet her burden for withholding of removal. See Ramsameachire v.
Ashcroft, 357 F.3d at 183. Moreover, as the government argues and Salazar does not
dispute, she failed to appeal from the IJ’s denial of her CAT claim and, therefore, that
claim is unexhausted. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119
(2d Cir. 2006).
We have considered Salazar’s remaining arguments and conclude that they are
without merit. Accordingly, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
8