12-2066
Padilla v. Holder
BIA
Balasquide, IJ
A077 621 717
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 30th day of August, two thousand thirteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 WILMER RENE ELIAS PADILLA,
14 Petitioner,
15
16 v. 12-2066
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: David G. Katona, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
26 Assistant Attorney General; Blair T.
27 O’Connor, Assistant Director; Eric
28 W. Marsteller, Senior Litigation
29 Counsel, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
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2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is GRANTED.
6 Wilmer Rene Elias Padilla, a native and citizen of
7 Honduras, seeks review of an April 20, 2012, decision of the
8 BIA affirming the January 25, 2010, decision of Immigration
9 Judge (“IJ”) Javier Balasquide, which denied his application
10 for asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Wilmer Rene Elias
12 Padilla, No. A077 621 717 (B.I.A. Apr. 20, 2012), aff’g No.
13 A077 621 717 (Immig. Ct. N.Y. City Jan. 25, 2010). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as supplemented and modified by the BIA. See
18 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Xue
19 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
20 Cir. 2005). The applicable standards of review are well-
21 established. See Yanqin Weng v. Holder, 562 F.3d 510, 513
22 (2d Cir. 2009). Because Padilla does not challenge the
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1 denial of CAT relief, we address only asylum and withholding
2 of removal.
3 The agency reasonably found that Padilla failed to
4 establish that he was or would be persecuted on account of
5 his political opinion, whether actually held or imputed. To
6 establish eligibility for asylum and withholding of removal,
7 an applicant must demonstrate that the persecution he
8 suffered or fears was or would be on account of his race,
9 religion, nationality, political opinion, or membership in a
10 particular social group. See 8 U.S.C. §§ 1101(a)(42),
11 1231(b)(3)(A). For a persecution claim based on political
12 opinion to succeed, the applicant must demonstrate that the
13 persecutor’s motive to persecute arises from a political
14 belief he perceives the applicant to hold, whether correctly
15 or incorrectly attributed. See Chun Gao v. Gonzales, 424
16 F.3d 122, 129 (2d Cir. 2005). Here, the only evidence
17 Padilla submitted regarding the motive of his attackers, his
18 credible testimony, indicated that six men attacked him
19 solely because of his familial relationship to his mother, a
20 union activist who the attackers stated “was to be blamed.”
21 Although Padilla testified that he occasionally attended
22 union meetings with his mother, he never suggested that he
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1 was an active member, and he presented no other evidence
2 indicating that the attackers attributed his mother’s union
3 activities to him. Hence, the agency reasonably found that
4 he failed to establish past persecution on account of an
5 imputed political opinion. See id.
6 Padilla argues, however, that the agency erred by
7 failing to consider his argument that he was targeted based
8 on his membership in a particular social group, his mother’s
9 family. To establish persecution based on membership in a
10 particular social group, an alien must establish that the
11 group itself is cognizable, meaning that its members share a
12 “common characteristic” that they “cannot change, or should
13 not be required to change because it is fundamental to their
14 individual identities or consciences.” Ucelo-Gomez v.
15 Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (per curiam)
16 (internal quotation marks omitted). Kinship ties or
17 membership in a family or clan “may form a cognizable shared
18 characteristic for a particular social group.” Vumi v.
19 Gonzales, 502 F.3d 150, 155 (2d Cir. 2007); see also Matter
20 of H-, 21 I. & N. Dec. 337, 342 (BIA 1996). Here, both the
21 BIA and the IJ found that Padilla was attacked due to his
22 mother’s political opinion, in essence, because he is his
4
1 mother’s son. However, they did not discuss whether
2 Padilla’s filial relationship to his mother constituted a
3 protected ground. Given this lack of explanation, remand is
4 appropriate for further consideration of whether Padilla
5 established a nexus between the attack and a particular
6 social group based on his kinship ties to his mother. See
7 Vumi, 502 F.3d at 155; Beskovic v. Gonzales, 467 F.3d 223,
8 227 (2d Cir. 2006) (requiring a certain minimal level of
9 analysis from agency decisions denying asylum to enable
10 meaningful judicial review).
11 Moreover, as neither the IJ nor the BIA addressed the
12 viability of Padilla’s past persecution claim on account of
13 his kinship ties, remand is also appropriate as it is
14 unclear whether the agency erred in placing the burden on
15 Padilla as to future persecution in Honduras. See Kyaw Zwar
16 Tun v. INS, 445 F.3d 554, 564-65 (2d Cir. 2006) (noting that
17 “establishing past persecution creates [] a rebuttable
18 presumption of [] a well-founded fear [of future
19 persecution]"); see also 8 C.F.R. § 1208.16(b)(1)(i). And
20 neither the IJ nor the BIA determined that the Government
21 would have successfully rebutted the presumption of a well-
22 founded fear of persecution. See Kyaw Zwar Tun, 445 F.3d at
23 564-65. Although the BIA noted that the ability of
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1 Padilla’s mother to remain in Honduras unharmed undermined
2 Padilla’s CAT claim, that finding does not equate to
3 “changed circumstances” sufficient for rebuttal. Compare
4 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)
5 (well-founded fear diminished where family members continued
6 to live in her native country), with Islami v. Gonzales, 412
7 F.3d 391, 397 (2d Cir. 2005) (requiring government to show
8 that “country conditions have changed radically” to
9 establish a fundamental change in circumstances sufficient
10 to rebut the presumption of a well-founded fear of
11 persecution (emphasis added)), overruled in part on other
12 grounds by Shi Liang Lin v. U.S. D.O.J., 494 F.3d 296, 305
13 (2d Cir. 2007), and Kone v. Holder, 596 F.3d 141, 149 (2d
14 Cir. 2010) (holding that alien’s return trip did not rebut
15 the presumption because “the government cannot satisfy its
16 burden . . . simply by showing that [applicant] enjoyed
17 periods with no new persecution or that [applicant] will not
18 perpetually be persecuted in her native country”). Because
19 this presumption applies equally to withholding of removal,
20 remand is warranted for the agency to apply the appropriate
21 framework for withholding of removal. See 8 C.F.R.
22 § 1208.16(b)(1).
23 For the foregoing reasons, the petition for review is
6
1 GRANTED, and the case is REMANDED for reconsideration of
2 Padilla’s eligibility for asylum and withholding of removal.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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