16-121
Lemus-de Umana v. Sessions
BIA
Nelson, IJ
A 206 791 253 / 254 / 255 / 256
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of November, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 ELBIA NOEMI LEMUS-DE UMANA, KAREN
14 JULISSA UMANA-LEMUS, OSCAR
15 LEONIDAS UMANA-LEMUS, and YEIMI
16 LISSETH UMANA-LEMUS,
17 Petitioners,
18
19 v. 16-121
20 NAC
21 JEFFERSON B. SESSIONS III,
22 UNITED STATES ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26
27 FOR PETITIONERS: Judy Resnick, Far Rockaway, NY.
28
1 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
2 Assistant Attorney General; Shelley
3 R. Goad, Assistant Director; Julia
4 J. Tyler, Trial 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 is
12 DENIED.
13 Petitioner Elbia Noemi Lemus-de Umana (“Umana”) and her
14 minor children, Karen Julissa, Oscar Leonidas, and Yeimi
15 Lisseth Umana-Lemus, all natives and citizens of El Salvador,
16 seek review of a December 15, 2015, decision of the BIA affirming
17 a July 13, 2015, decision of an Immigration Judge (“IJ”) denying
18 Umana’s application for asylum, withholding of removal, and
19 relief under the Convention Against Torture (“CAT”). In re
20 Elbia Noemi Lemus-de Umana, Karen Julissa Umana-Lemus, Oscar
21 Leonidas Umana-Lemus, and Yeimi Lisseth Umana-Lemus, Nos. A206
22 791 253/254/255/256 (B.I.A. Dec. 15, 2015), aff’g Nos. A206 791
23 253/254/255/256 (Immig. Ct. N.Y. City July 13, 2015). We
24 assume the parties’ familiarity with the underlying facts and
25 procedural history in this case.
2
1 Under the circumstances of this case, we have reviewed both
2 the IJ’s and the BIA’s opinions “for the sake of completeness.”
3 Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The
4 standards of review are well established. See 8 U.S.C.
5 § 1252(b)(4); Gjolaj v. Bureau of Citizenship & Immigration
6 Servs., 468 F.3d 140, 142 (2d Cir. 2006). Petitioners have
7 failed to challenge the dispositive bases of the agency’s
8 ruling, presenting no argument regarding either their proposed
9 social group needed to state a claim for asylum and withholding
10 of removal, or the government acquiescence needed to establish
11 entitlement to CAT relief. Accordingly, Petitioners have
12 effectively waived review. See Norton v. Sam’s Club, 145 F.3d
13 114, 117 (2d Cir. 1998) (“[I]ssues not sufficiently argued in
14 the briefs are considered waived and normally will not be
15 addressed on appeal.”). Even were we to excuse that waiver,
16 our review of the record reveals no error in the agency’s
17 decisions.
18 To establish eligibility for asylum and withholding of
19 removal based on membership in a particular social group, the
20 applicant must establish both that the group is legally
21 cognizable, see Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
3
1 2014), and that the applicant has suffered past persecution or
2 has demonstrated a well-founded fear or likelihood of future
3 persecution “on account of” her membership in that group, see
4 Rodas Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010), i.e.,
5 the membership in the group must be “at least one central reason”
6 for the alleged persecution, 8 U.S.C. § 1158(b)(1)(B)(i). A
7 particular social group is cognizable if it refers to “a
8 discrete class of persons” and “the relevant society perceives,
9 considers, or recognizes the group as a distinct social group.”
10 Matter of W-G-R-, 26 I. & N. Dec. 208, 210, 217 (BIA 2014)
11 (internal quotation marks omitted); see Paloka, 762 F.3d at 195
12 (deferring to the BIA’s construction of “particular social
13 group”).
14 The agency reasonably found that Umana’s initially
15 proposed particular social group, “people who oppose and are
16 threatened by gangs,” could apply to “a diverse array of people
17 with very differing characteristics.” See Matter of M-E-V-G-,
18 26 I. & N. Dec. 227, 239 (BIA 2014) (particular social group
19 cannot be “amorphous, overbroad, diffuse, or subjective”).
20 And Umana failed to show that the proposed group was perceived
21 as a distinct social category in El Salvador. Paloka, 762 F.3d
4
1 at 196 (“[W]hat matters is whether society as a whole views a
2 group as socially distinct.”). Moreover, Umana did not testify
3 that she “opposed” the gangs; even if she had, she presented
4 no evidence that her persecutors were aware of her stance, so
5 she could not show that any harm was “on account of” her social
6 group. Rodas Castro, 597 F.3d at 100; Kyaw Zwar Tun v. U.S.
7 INS, 445 F.3d 554, 565 (2d Cir. 2006) (applicant must show that
8 his “persecutor is, or could become, aware of the applicant’s
9 possession of the disfavored belief or characteristic”).
10 Instead, she testified that she believed she was targeted
11 because she had a job and so was perceived to have money;
12 however, the appearance of wealth is not sufficient to identify
13 a particular social group. Ucelo-Gomez v. Mukasey, 509 F.3d
14 70, 72-74 (2d Cir. 2007) (upholding BIA’s determination that
15 wealthy people are not a particular social group for asylum
16 purposes).
17 Umana redefined her social group on appeal to the BIA as
18 “people whose family members were murdered by gangs.” Again,
19 the agency reasonably found that this group was overbroad and
20 that there was no evidence of social distinction. Matter of
21 M-E-V-G-, 26 I. & N. Dec. at 239; Paloka, 762 F.3d at 196. Nor
5
1 did Umana present any evidence that the threatening callers were
2 aware of the fact that her husband was murdered. Kyaw Zwar Tun,
3 445 F.3d at 565; see also Jian Hui Shao v. Mukasey, 546 F.3d
4 138, 157-58 (2d Cir. 2008) (“[W]hen a petitioner bears the
5 burden of proof, his failure to adduce evidence can itself
6 constitute the ‘substantial evidence’ necessary to support the
7 agency’s challenged decision.”).
8 With respect to CAT relief, the agency reasonably
9 determined that Umana did not show that she would more likely
10 than not suffer torture at the hands of or with the acquiescence
11 of a government official in El Salvador. The telephone threats
12 here do not constitute torture. See 8 C.F.R.
13 § 1208.16(c)(3)(1) (listing past torture as one factor to
14 consider in CAT analysis); Gui Ci Pan v. U.S. Att’y Gen., 449
15 F.3d 408, 412 (2d Cir. 2006) (recognizing that unfulfilled
16 threats do not rise to the level of past persecution). Nor did
17 she establish that the police acquiesced in their behavior. At
18 most, she shows that the police did not prioritize her reports,
19 which does not rise to the level of refusal to act. Cf. Aliyev
20 v. Mukasey, 549 F.3d 111, 119 (2d Cir. 2008) (finding government
21 acquiescence where, “despite repeated reports of violence to
6
1 the police, no significant action was taken on [the alien’s]
2 behalf”). Umana presented no other evidence to show that it
3 was more likely than not that she would be tortured by or with
4 the acquiescence of a government official. See Mu Xiang Lin
5 v. U.S. Dep’t of Justice, 432 F.3d 156, 158 (2d Cir. 2005)
6 (denying petition where applicant presented no “particularized
7 evidence suggesting that she is likely to be subjected to
8 torture”).
9 Finally, Umana contends that the IJ exhibited
10 impermissible bias and speculation in denying her relief, and
11 deprived her of due process. As discussed above, we find no
12 error in the agency’s decisions. Although framed as a due
13 process claim, this argument merely expresses Umana’s
14 disagreement with the merits of the IJ’s decision. She does
15 not dispute that she received the “full and fair removal
16 hearing” that due process requires. See Yuen Jin v. Mukasey,
17 538 F.3d 143, 157 (2d Cir. 2008).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
21 and any pending motion for a stay of removal in this petition
7
1 is DISMISSED as moot. Any pending request for oral argument
2 in this petition is DENIED in accordance with Federal Rule of
3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
4 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
8