Hernandez Lopez v. Garland

19-1712 Hernandez Lopez v. Garland BIA Christensen, IJ A087 509 782 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 19th day of January, two thousand twenty-two. [5] 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 JON O. NEWMAN, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ [13] 14 JULISSA GABRIELA HERNANDEZ 15 LOPEZ, 16 Petitioner, [17] 18 v. 19-1712 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ [24] 25 FOR PETITIONER: Daniel R. Spensieri, Law Office of 26 Daniel Spensieri PC, White Plains, 27 NY. 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Cindy S. Ferrier, 3 Assistant Director; Tracie N. 4 Jones, Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, D.C. 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Julissa Gabriela Hernandez Lopez (“Hernandez 13 Lopez”), a native and citizen of Guatemala, seeks review of 14 a May 17, 2019 decision of the BIA affirming a January 25, 15 2018 decision of an Immigration Judge (“IJ”) denying asylum 16 and withholding of removal under the Immigration and 17 Nationality Act (“INA”) and relief under the Convention 18 Against Torture (“CAT”). In re Julissa Gabriela Hernandez 19 Lopez, No. A087-509-782 (B.I.A. May 17, 2019), aff’g No. A087- 20 509-782 (Immig. Ct. N.Y. City Jan. 25, 2018). We assume the 21 parties’ familiarity with the underlying facts and procedural 22 history. For the following reasons, we deny Petitioner’s 23 petition for review. 24 We have reviewed both the IJ’s and the BIA’s decisions 25 “for the sake of completeness.” Wangchuck v. Dep’t of [2] 1 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 2 the agency’s factual findings for substantial evidence and 3 its legal conclusions de novo. See Paloka v. Holder, 762 4 F.3d 191, 195 (2d Cir. 2014) (“Courts review de novo the legal 5 determination of whether a group constitutes a ‘particular 6 social group’ under the INA.”); Edimo-Doualla v. Gonzales, [7] 464 F.3d 276, 282 (2d Cir. 2006) (applying substantial 8 evidence standard to nexus determination); Weng v. Holder, [9] 562 F.3d 510, 513, 516 (2d Cir. 2009) (applying substantial 10 evidence standard to CAT claim). “[T]he administrative 11 findings of fact are conclusive unless any reasonable 12 adjudicator would be compelled to conclude to the contrary.” [13] 8 U.S.C. § 1252 (b)(4)(B). 14 I. Asylum and Withholding of Removal 15 To obtain asylum or withholding of removal, an applicant 16 must establish past persecution or a well-founded fear of 17 future persecution on account of a protected ground. See 8 18 C.F.R. §§ 1208.13 (b) (asylum), 1208.16(b)(1), (2) 19 (withholding). Hernandez Lopez asserted a fear of future 20 persecution by gang members in Guatemala on account of her 21 membership in the purported particular social group of “16- [3] 1 year-old minors who are likely to be homeless if they return 2 to Guatemala.” App’x 1, 7. To demonstrate eligibility for 3 relief based on membership in a “particular social group,” an 4 applicant “must establish both that the group itself was 5 cognizable, and that the alleged persecutors [would] target[] 6 [her] on account of her membership in that group.” Paloka, 7 762 F.3d at 195 (internal quotation marks and citation 8 omitted). A particular social group must be: “(1) composed 9 of members who share a common immutable characteristic, (2) 10 defined with particularity, and (3) socially distinct within 11 the society in question.” Hernandez-Chacon v. Barr, 948 F.3d 12 94, 101 (2d Cir. 2020) (quoting Matter of M-E-V-G-, 26 I. & 13 N. Dec. 227, 237 (B.I.A. 2014)); see also Ucelo-Gomez v. 14 Mukasey, 509 F.3d 70 , 72–74 (2d Cir. 2007) (per curiam). The 15 agency reasonably concluded that the proposed group is not 16 cognizable and that Hernandez Lopez failed to demonstrate a 17 nexus between her fear of gang members and her proposed social 18 group. 19 First, as to cognizability, “class status does not 20 establish a social group with sufficient particularity.” Id. 21 at 74 (citing Saleh v. U.S. Dep’t of Justice, 962 F.2d 234 , [4] 1 240 (2d Cir. 1992) (holding that “poor” Yemeni Muslims are 2 not a particular social group because the group “possess[es] 3 broadly-based characteristics”)). The characteristic 4 “likely to become homeless” is subjective and too loosely 5 defined to delineate any boundary to the group. See Gomez 6 v. INS, 947 F.2d 660, 664 (2d Cir. 1991) (“Possession of 7 broadly-based characteristics such as youth and gender will 8 not by itself endow individuals with membership in a 9 particular group.”). 10 Hernandez Lopez’s group also fails the social distinction 11 requirement. The fact that a group is more visible or 12 vulnerable to criminals does not make it socially distinct: 13 “[w]hen the harm visited upon members of a group is 14 attributable to the incentives presented to ordinary 15 criminals rather than to persecution, the scales are tipped 16 away from considering those people a ‘particular social 17 group’ within the meaning of the INA.” Ucelo-Gomez, 509 F.3d 18 at 73. “[W]hat matters is whether society as a whole views 19 a group as socially distinct, not the persecutor’s 20 perception.” Paloka, 762 F.3d at 196; see also Matter of M- 21 E-V-G-, 26 I. & N. Dec. at 240 (social group must be [5] 1 “perceived as a group by society” and members need not be 2 identifiable by sight). Hernandez Lopez’s fear that gang 3 members will target her for being a possibly homeless teen is 4 not a basis for a particular social group. See Ucelo-Gomez, [5] 509 F.3d at 74 . Nor is her contrasting fear that gang members 6 will perceive her as wealthy because she is coming from the 7 United States. See id. at 73 (the perception of wealth is 8 “too subjective, inchoate, and variable to provide the sole 9 basis for membership in a particular social group”). 10 Second, as to nexus, the applicant must provide direct 11 or circumstantial evidence of the persecutor’s motives, i.e., 12 that the persecutor seeks to harm the applicant on account of 13 a protected ground. See 8 U.S.C. §§ 1158 (b)(1)(B)(i) 14 (asylum), 1231(b)(3)(A) (withholding); INS v. Elias-Zacarias, [15] 502 U.S. 478, 483 (1992) (requiring “some evidence of 16 [motive], direct or circumstantial”). 17 Here, substantial evidence supports the agency’s finding 18 that Hernandez Lopez did not establish a nexus. She argues 19 that she established the requisite nexus because she would be 20 “an easy target” for the gangs. Pet. Br. 12. But general 21 crime and “act[s] of random violence” do not form the [6] 1 requisite nexus to a protected ground, Melgar de Torres v. 2 Reno, 191 F.3d 307 , 313–14 (2d Cir. 1999), and Hernandez Lopez 3 testified that gangs will attack anyone because they want 4 money. 5 II. CAT Protection 6 The agency’s denial of CAT protection is also supported 7 by substantial evidence. See Weng, 562 F.3d at 513, 516 . 8 Hernandez Lopez had the burden to show that she is “more 9 likely than not to be tortured,” § 1208.16(c)(4), and that 10 “government officials [would] know of or remain willfully 11 blind to an act [of torture],” Khouzam v. Ashcroft, 361 F.3d 12 161, 171 (2d Cir. 2004); see 8 C.F.R. § 1208.18 (a)(1). 13 In determining whether torture is more likely than not, 14 the agency is required to consider “past torture” and country 15 conditions. § 1208.16(c)(3). Hernandez Lopez testified 16 that gang members never harmed her, and could not recall if 17 gang members ever harmed her family members. Her country 18 conditions evidence of crime and violence, without more, is 19 insufficient to demonstrate that gang members will more 20 likely than not single her out for torture and that government 21 officials will acquiesce to that torture. See Wang v. [7] 1 Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (“[W]hile Wang’s 2 testimony as well as some of his ‘country conditions’ 3 documents . . . indicate that some prisoners in China have 4 been tortured, Wang has in no way established that someone in 5 his particular alleged circumstances is more likely than not 6 to be tortured if imprisoned in China.” (internal citation 7 and emphasis omitted)); Shao v. Mukasey, 546 F.3d 138 , 157– 8 58 (2d Cir. 2008) (“[W]hen a petitioner bears the burden of 9 proof, his failure to adduce evidence can itself constitute 10 the ‘substantial evidence’ necessary to support the agency’s 11 challenged decision.”). 12 For the foregoing reasons, the petition for review is 13 DENIED. All pending motions and applications are DENIED and 14 stays VACATED. 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court