Yokoyama v. Barr

17-3296
Yokoyama v. Barr
BIA
Mulligan, IJ
A088 445 387
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
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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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 10th day of December, two thousand nineteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 RAYMOND J. LOHIER, JR.,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 MICHI YOKOYAMA,
14 Petitioner,
15
16 v. 17-3296
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Matthew L. Guadagno, New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Keith I. McManus,
27 Assistant Director; Claire L.
28 Workman, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Michi Yokoyama, a native and citizen of
6 Japan, seeks review of a September 15, 2017, decision of the
7 BIA reversing a June 7, 2016 decision of an Immigration
8 Judge (“IJ”) granting Yokoyama’s application for asylum. In
9 re Michi Yokoyama, No. A 088 445 387 (B.I.A. Sept. 15,
10 2017), rev’g No. A 088 445 387 (Immig. Ct. N.Y. City June 7,
11 2016). We assume the parties’ familiarity with the
12 underlying facts and procedural history in this case.
13 We review the agency’s factual findings for substantial
14 evidence and its legal conclusions, including “whether a
15 group constitutes a ‘particular social group’ under the
16 [Immigration and Nationality Act],” de novo. Paloka v.
17 Holder, 762 F.3d 191, 195 (2d Cir. 2014); see also 8 U.S.C.
18 § 1252(b)(4)(B). Because the BIA reversed the IJ’s
19 decision, we review the BIA’s decision as the final agency
20 decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005).
2
1 Yokoyama asserted, and the IJ agreed, that she would be
2 persecuted on account of her membership in the social group
3 of “women accused of crimes in Japan.”
4 We conclude that the BIA did not err in rejecting
5 Yokoyama’s initial argument that the Department of Homeland
6 Security (“DHS”) waived any challenge to the social group
7 determination. Yokoyama cites no authority in support of
8 her argument that DHS was required to reargue this issue on
9 remand to the IJ. Indeed, there was no need for DHS to
10 address the issue because the BIA remanded on the separate
11 issue of whether she would be subject to disproportionate
12 treatment if convicted. Accordingly, the BIA did not err in
13 addressing whether Yokoyama’s proposed social group was
14 cognizable.
15 For asylum and withholding of removal, an “applicant
16 must establish that race, religion, nationality, membership
17 in a particular social group, or political opinion was or
18 will be at least one central reason for” the claimed
19 persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i) (asylum),
20 1231(b)(3)(A) (withholding); Matter of C-T-L, 25 I. & N.
21 Dec. 341, 346 (B.I.A. 2010) (holding that the “one central
3
1 reason” standard also applies to withholding of removal).
2 To constitute a particular social group, a group must be
3 “(1) composed of members who share a common immutable
4 characteristic, (2) defined with particularity, and (3)
5 socially distinct within the society in question.” Matter
6 of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014). “[A]
7 particular social group cannot be defined exclusively by the
8 claimed persecution[;] . . . it must be recognizable as a
9 discrete group by others in the society, and . . . it must
10 have well-defined boundaries.” Id. at 232 (quotation marks
11 omitted); see Paloka, 762 F.3d at 195-96 (deferring to BIA’s
12 interpretation of social group).
13 The BIA did not err in determining that Yokoyama failed
14 to demonstrate that her proposed social group of “women who
15 are accused of crimes in Japan” is socially distinct. “To
16 be socially distinct, a group . . . must be perceived as a
17 group by society.” Matter of M-E-V-G-, 26 I. & N. Dec. at
18 240. “Evidence such as country conditions reports, expert
19 witness testimony, and press accounts of discriminatory laws
20 and policies, historical animosities, and the like may
21 establish that a group exists and is perceived as ‘distinct’
4
1 or ‘other’ in a particular society.” Id. at 244. The IJ
2 determined that Yokoyama’s group was socially distinct based
3 entirely on Yokoyama’s testimony that as a child, she was
4 taught about how poorly individuals who have been convicted
5 of crimes are treated.” As the BIA noted, however,
6 Yokoyama’s testimony supports the conclusion that people
7 convicted of crimes may be recognized as a group, not that
8 women accused of crimes or female detainees are perceived as
9 a distinct group by Japanese society. The record does not
10 otherwise support Yokoyama’s claim that Japanese society
11 recognizes women accused of crimes as a distinct group.
12 Because Yokoyama failed to demonstrate that “women who
13 are accused of crimes in Japan” is a socially distinct group
14 within Japanese society, Yokoyama failed to establish that
15 she faces harm on account of her membership in a cognizable
16 social group. See Matter of W-G-R-, 26 I. & N. Dec. 208,
17 218 (B.I.A. 2014). For that reason, she did not state a
18 claim for asylum and withholding of removal. See 8 U.S.C.
19 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
20
21
5
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions are DENIED and stays are
3 VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7
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