Osorto-Romero v. Sessions

16-2870 Osorto-Romero v. Sessions BIA Straus, IJ A206 429 811/812/813 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 22nd day of June, two thousand eighteen. [5] 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ [12] 13 NIMIA SUYAPA OSORTO-ROMERO, 14 MARIELENA GONZALEZ-OSORTO, 15 STEFANY SUYAPA GONZALEZ-OSORTO, 16 Petitioners, [17] 18 v. 16-2870 19 NAC 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ [24] 25 FOR PETITIONERS: Danielle Robinson Briand, Center 26 for Immigrant Justice, 27 Minneapolis, MN. [28] 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Anthony C. 3 Payne, Assistant Director; Liza S. 4 Murcia, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. [8] 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner Nimia Suyapa Osorto-Romero, and her minor 14 children and derivative applicants Marielena Gonzalez- 15 Osorto and Stefany Suyapa Gonzalez-Osorto (collectively, 16 “Osorto”), natives and citizens of Honduras, seek review of 17 a July 29, 2016, decision of the BIA affirming a July 2, 18 2015, decision of an Immigration Judge (“IJ”) denying 19 Osorto’s application for asylum, withholding of removal, 20 and relief under the Convention Against Torture (“CAT”). 21 In re Nimia Suyapa Osorto-Romero, Marielena Gonzalez- 22 Osorto, Stefany Suyapa Gonzalez-Osorto, Nos. A 206 429 23 811/812/813 (B.I.A. July 29, 2016), aff’g Nos. A 206 429 24 811/812/813 (Immig. Ct. Hartford July 9, 2015).1 We assume 1 Osorto has not challenged the denial of CAT relief in this Court. Accordingly, we do not address that issue. See Yueging Zhang v. Gonzales, 426 F.3d 540 , 545 n.7 (2d Cir. 2005). [2] 1 the parties’ familiarity with the underlying facts and 2 procedural history in this case. 3 Under the circumstances of this case, we have reviewed 4 both the IJ’s and BIA’s decisions “for the sake of 5 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 [6] F.3d 524, 528 (2d Cir. 2006). For asylum and withholding 7 of removal, an “applicant must establish that race, 8 religion, nationality, membership in a particular social 9 group, or political opinion was or will be at least one 10 central reason for” the claimed persecution. 8 U.S.C. 11 §§1158(b)(1)(B)(i) (asylum), 1231(b)(3)(A) (withholding); 12 Matter of C-T-L-, 25 I. & N. Dec. 341, 346 (B.I.A. 2010) 13 (extending the “one central reason” standard to withholding 14 of removal). Osorto seeks relief based on past persecution 15 and a fear of future persecution as a member of a 16 particular social group defined as, “Honduran women who are 17 viewed as gang property by virtue of their gender.” To 18 constitute a particular social group, a group must be “(1) 19 composed of members who share a common immutable 20 characteristic, (2) defined with particularity, and (3) 21 socially distinct within the society in question.” Matter 22 of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see [3] 1 also Paloka v. Holder, 762 F.3d 191, 195-97 (2d Cir. 2014) 2 (deferring to that interpretation of the statutory 3 language). An “immutable characteristic” is one that 4 “members of the group either cannot change, or should not 5 be required to change because it is fundamental to their 6 individual identities or consciences.” Paloka, 762 F.3d at 7 195 (quoting In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 8 1985)). To be “defined with particularity,” the group must 9 be “‘discrete and have definable boundaries—it must not be 10 amorphous, overbroad, diffuse, or subjective.’” Id. at 196 11 (quoting M-E-V-G-, 26 I. & N. Dec. at 239 ). And “[t]o be 12 socially distinct, a group . . . must be perceived as a 13 group by society.” M-E-V-G-, 26 I. & N. Dec. at 240 . 14 “Courts review de novo the legal determination of whether a 15 group constitutes a ‘particular social group’ under the 16 INA.” Paloka, 762 F.3d at 195 . 17 Osorto’s proposed social group, “Honduran women who are 18 viewed as gang property by virtue of their gender,” does 19 not meet the social distinction or particularity 20 requirements. Osorto argues that gangs “project ownership 21 or domination over women living in their territory” and 22 “view women to be their property,” in part as a result of [4] 1 the country’s machismo culture in which women are generally 2 viewed as subordinate to men. However, “[a]lthough a 3 persecutor’s perception can be indicative of whether 4 society views a group as distinct, a persecutor’s 5 perception alone is not enough to establish a cognizable 6 social group.” Paloka, 762 F.3d at 196 . While the record 7 shows high rates of violence against women, it does not 8 show that women “viewed as gang property” make up a 9 distinct subset of Honduras’s population. Osorto cites 10 characteristics common among women who are most vulnerable 11 to violence—that they are young, poor, and live in urban 12 areas—but this is undermined by the fact that she did not 13 possess these characteristics. Moreover, the record 14 reflected high rates of gang violence against the general 15 population, and did not establish that women are at a 16 greater risk of being targeted by gangs. See Ucelo-Gomez 17 v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm 18 visited upon members of a group is attributable to the 19 incentives presented to ordinary criminals rather than to 20 persecution, the scales are tipped away from considering 21 those people a ‘particular social group.’”); Melgar de 22 Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999) (noting [5] 1 that “general crime conditions” do not constitute 2 persecution on account of a protected ground).2 3 For the foregoing reasons, the petition for review is 4 DENIED. 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court 2 We do not address the agency’s alternative determination that Osorto was not harmed on account of her membership in her proposed group. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).