15-3714
Ubando v. Sessions
BIA
Cheng, IJ
A088 428 690
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.
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
8th day of May, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_____________________________________
GUERRA O. UBANDO, AKA OBANDO
LOPEZ,
Petitioner,
v. 15-3714
NAC
JEFFERSON B. SESSIONS III*, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua E. Bardavid, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Song
Park, Senior Litigation Counsel;
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jefferson B. Sessions III is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
Sunah Lee, Trial Attorney; Office of
Immigration Litigation, United
States 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
GRANTED, and the matter is REMANDED for further consideration.
Petitioner Guerra O. Ubando, a native and citizen of
Guatemala, seeks review of an October 20, 2015, decision of the
BIA, affirming a May 19, 2014, decision of an Immigration Judge
(“IJ”) denying Ubando’s application for withholding of removal
and relief under the Convention Against Torture (“CAT”). In
re Guerra O. Ubando, No. A088 428 690 (B.I.A. Oct. 20, 2015),
aff’g No. A088 428 690 (Immig. Ct. N.Y. City May 19, 2014). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
2014); Edimo-Doualla v. Gonzales, 464 F.3d 276, 281-83 (2d Cir.
2006). The only issue before us is the agency’s denial of
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withholding of removal. Ubando withdrew his application for
asylum and does not challenge the denial of CAT relief.
Ubando does not allege past persecution and seeks relief
based on his fear of future persecution. An applicant seeking
withholding of removal must establish that his fear of future
persecution is “on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42) (emphasis added); see also Castro v.
Holder, 597 F.3d 93, 100 (2d Cir. 2010) (explaining that the
burden is on the “applicant to establish a sufficiently strong
nexus to . . . [a] protected ground[]”); 8 C.F.R.
§ 1208.16(b)(2). An applicant must establish that the
protected ground “was or will be at least one central reason
for” the claimed persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i),
1231(b)(3)(A); see also In re J-B-N- and S-M-, 24 I. & N. Dec.
208, 212 (B.I.A. 2007); In re C-T-L-, 25 I. & N. Dec. 341, 346-48
(B.I.A. 2010) (holding that the “one central reason” standard
applies to withholding of removal). Because the agency assumed
that Ubando’s family is a cognizable social group, we first
address whether Ubando’s other proposed group of “returning
immigrants with debts to smugglers with government ties” is
cognizable, and then address the agency’s nexus finding, that
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is, whether Ubando’s alleged fear of persecution in Guatemala
is on account of a protected ground.
Ubando argues that it is more likely than not that he will
face future persecution on account of his membership in social
groups, specifically, (1) returning immigrants indebted to
smugglers, and (2) family members of people who have spoken out
against the Guatemalan government. These grounds are
addressed in turn.
I. Social Group of Indebted Returning Immigrants
The agency reasonably concluded that Ubando did not
establish that “returning immigrants with debts to smugglers”
was a social group. To be cognizable, a social group must be
“(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question.” Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014). An “immutable
characteristic” is “one that the members of the group either
cannot change, or should not be required to change because it
is fundamental to their individual identities or consciences.”
Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985),
overruled on other grounds by INS v. Cardoza-Fonseca, 480 U.S.
421 (1987); accord Ivanishvili v. U.S. Dep’t of Justice, 433
F.3d 332, 342 (2d Cir. 2006); see also Ucelo-Gomez v. Mukasey,
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509 F.3d 70, 72-73 (2d Cir. 2007). “‘Particularity’ refers to
whether the group is ‘sufficiently distinct’ that it would
constitute ‘a discrete class of persons.’” Matter of W-G-R-,
26 I. & N. Dec. 208, 210 (B.I.A. 2014) (quoting Matter of S-E-G-,
24 I. & N. Dec. 579, 584 (B.I.A. 2008)). Social distinction
requires that the shared traits be sufficient for the group to
“be perceived as a group by society.” Matter of M-E-V-G-, 26
I. & N. Dec. at 240; Matter of W-G-R-, 26 I. & N. Dec. at 216;
Paloka, 762 F.3d at 196 (“[W]hat matters is whether society as
a whole views a group as socially distinct, not the persecutor’s
perception.”).
Ubando argues that the “characteristics of [this group] are
immutable, unchangeable, and sufficiently visible to both the
persecutor and the community.” The agency applied the correct
criteria, and we discern no error in its conclusion that Ubando
did not establish that “returning immigrants with debts to
smugglers” is a cognizable social group, as the group is neither
immutable nor socially distinct. Ubando himself testified
that “What [he] has is a debt, and if [he] pay[s] that debt,
then [he’s] free.” And while Ubando argues that the group is
socially distinct because others similarly situated have been
targeted, that would not make those individuals a cognizable
group. In other words, members would not be targeted because
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of their group membership; instead, they would form a group only
because they have been targeted. See Matter of M-E-V-G-, 26
I. & N. Dec. at 242-43; see also Ucelo–Gomez, 509 F.3d at 73
(“When the harm visited upon members of a group is attributable
to the incentives presented to ordinary criminals rather than
to persecution, the scales are tipped away from considering
those people a ‘particular social group’. . . .”).
Accordingly, we decline to reach the agency’s alternative
determination that Ubando could not demonstrate a nexus between
this proposed group and the harm he fears. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976).
II. Social Group of Family Members
However, we discern error in the agency’s determination
that Ubando “failed to meet his burden of demonstrating a
likelihood of persecution based on membership in” his “family
social group.” Certified Administrative Record (“CAR”) 4.
As noted above, an applicant for withholding of removal “must
establish that race, religion, nationality, membership in a
particular social group, or political opinion was or will be
at least one central reason for” the claimed persecution. 8
U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); In re C-T-L-, 25 I.
& N. Dec. at 346-48.
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Ubando contends that he will likely be targeted because of
his familial ties to his father, who spoke out against the
government. Ubando primarily argues that the 1988 murder of
his uncle, and the subsequent murders of another uncle and that
uncle’s wife in 2000, which he suspects were perpetrated by the
Guatemalan government, provide evidence that he will be
targeted.
The agency’s rejection of Ubando’s family social group
claim is problematic for two reasons. First, the BIA’s opinion
includes the following:
As noted in the [I.J.’s] decision, the respondent was
approximately one-year old when his father spoke out
against the government, and his father moved to a
neighboring country before the respondent reached the
age of four (I.J. at 6). The record does not
demonstrate that the respondent or his family members
were subsequently harmed in Guatemala or that they
would face a likelihood of harm on account of his
father’s criticism of the government many years ago
(I.J. at 6-7). See generally Matter of A-E-M-, 21 I&N
Dec. 1157 (BIA 1998) (reasonableness of an alien’s
fear of persecution is reduced when close family
members remain in native country unharmed for a long
period of time after alien’s departure).
CAR 4 (internal footnote omitted).
This passage omits any reference to the IJ’s finding that
one of the Petitioner’s uncles was murdered in 1988, see CAR
20. More significantly, by stating in the second sentence that
“[t]he record does not demonstrate that the respondent or his
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family members were subsequently [i.e., after the petitioner
was four, in 1991 or 1992] harmed,” the BIA’s opinion appears
to overlook the petitioner’s testimony, all of which the IJ
credited, see CAR 22, that another uncle and that uncle’s wife
were murdered in 2000, see CAR 168. In colloquy with counsel
for the Petitioner and the Government, the IJ appeared to
acknowledge that these murders occurred in 2000. See id. 180.
Ubando reads the second sentence quoted above, beginning “[t]he
record does not demonstrate,” as intending to deny the fact that
family members had been harmed, see Br. for Petitioner at 24;
the Government reads the sentence as intending to deny only the
claimed reason for the murders, i.e., that the murders were “on
account of” the father’s criticism of the government, see Br.
for Respondent at 33. The BIA’s parenthetical discussion of
Matter of A-E-M-, 21 I. & N. Dec. 1157 (BIA 1998) suggests that
the Petitioner’s reading has much to recommend it.
At the very least, the absence of any mention in the BIA’s
opinion of the two murders in 2000 leaves this matter in doubt.
Second, the IJ relied on the facts that Ubando was an infant
when his uncle was murdered in 1988 and that Ubando encountered
no harm in Guatemala during the 10 years he lived there after
his father fled. See CAR 24. However, the fact that those who
murdered the Petitioner’s relatives did not harm him while he
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was a child does not necessarily mean that he would not face
harm were he to return as an adult.
Because the BIA erred in appearing to state that there was
no evidence of harm to the Petitioner’s relatives after the
Petitioner reached the age of four, and because we cannot be
sure how the BIA would assess the likelihood of harm to the
Petitioner as an adult after the BIA acknowledges the two
murders in 2000, we remand for further consideration of the
Petitioner’s claimed fear of persecution based on family
membership.
For the foregoing reasons, the petition for review is
GRANTED, and the matter is remanded for further consideration.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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