17-148
Acevedo-Ybarra v. Sessions
BIA
Sichel, IJ
A088 038 839/840
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 18th day of September, two thousand
5 eighteen.
6
7 PRESENT:
8 RALPH K. WINTER,
9 GUIDO CALABRESI,
10 JOSÉ A. CABRANES,
11 Circuit Judges.
12 _____________________________________
13 AUGUSTIN ACEVEDO-YBARRA,
14 DARGELY HINDRIA BATISTA-ABREU,
15 Petitioners,
16
17 v. 17-148
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Roger Asmar, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Derek C. Julius,
28 Assistant Director; Jason Wisecup,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners Augustin Acevedo-Ybarra (“Acevedo”), a
6 native and citizen of Mexico, and Dargely Hindria Batista-
7 Abreu (“Batista”), a native and citizen of the Dominican
8 Republic, seek review of a December 19, 2016, reissued
9 decision of the BIA affirming a December 12, 2013, decision
10 of an Immigration Judge (“IJ”) denying Acevedo and Batista’s
11 applications for asylum, withholding of removal, and relief
12 under the Convention Against Torture (“CAT”). In re Augustin
13 Acevedo-Ybarra, Dargely Hindria Batista-Abreu, No. A 088 038
14 839/840 (B.I.A. Dec. 19, 2016), aff’g No. A 088 038 839/840
15 (Immig. Ct. N.Y. City Dec. 12, 2013). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 We have reviewed the decisions of both the BIA and the
19 IJ. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
20 2008). Acevedo and Batista do not challenge the agency’s
21 denial of asylum as time barred or the denial of CAT
22 relief, so the only claim before us is the denial of
2
1 withholding of removal. See Yueqing Zhang v. Gonzales, 426
2 F.3d 540, 541 n.1 (2d Cir. 2005). The applicable standards
3 of review are well established. See 8 U.S.C.
4 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
5 (2d Cir. 2009).
6 Acevedo and Batista argue that the agency applied an
7 outdated standard when assessing their proposed particular
8 social group, i.e., that the agency required actual or
9 ocular visibility, as opposed to the more recently
10 articulated requirement of social distinction set forth in
11 Matter of W-G-R-, 26 I. & N. Dec. 208, 212 (B.I.A. 2014).
12 But Matter of W-G-R- did not substantially alter the social
13 visibility analysis; it simply clarified that “social
14 visibility” means that a group must be “socially distinct”
15 within the society in question, but not necessarily
16 identifiable on sight. 26 I. & N. Dec. at 212. Moreover,
17 Matter of W-G-R- was issued after the IJ’s decision, and
18 the BIA applied the newly articulated standard. In sum,
19 the agency applied the correct standard, and Acevedo and
20 Batista point to no evidence to show that they established
21 their membership in a group that Mexican society perceives
22 to be distinct. See Paloka v. Holder, 762 F.3d 191, 196
3
1 (2d Cir. 2014) (“The BIA also clarified that in determining
2 particularity and social distinction what matters is
3 whether society as a whole views a group as socially
4 distinct, not the persecutor’s perception.”). We do not
5 reach the adverse credibility determination because the
6 particular social group analysis is dispositive of
7 withholding of removal. See INS v. Bagamasbad, 429 U.S.
8 24, 25 (1976) (“As a general rule courts and agencies are
9 not required to make findings on issues the decision of
10 which is unnecessary to the results they reach.”).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
4