16-2669
Gomez-Domingo v. Sessions
BIA
Verrillo, IJ
A202 010 520/519/518
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 19th day of September, two thousand eighteen.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
LUCRESIA GOMEZ-DOMINGO,
RICKY VELAZQUEZ-GOMEZ,
PRINCE VELAZQUEZ-GOMEZ,
Petitioners,
v. 16-2669
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Jon E. Jessen, Stamford, CT.
FOR RESPONDENT: Jody Hunt, Assistant Attorney
General; Anthony P. Nicastro,
Assistant Director; Joanna L.
Watson, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 DENIED.
Lead petitioner Lucresia Gomez-Domingo and her sons
Ricky Velasquez-Gomez and Prince Velasquez-Gomez, natives
and citizens of Guatemala, seek review of a July 7, 2016,
decision of the BIA affirming a March 9, 2016, decision of
an Immigration Judge (“IJ”) denying Gomez-Domingo’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Gomez-
Domingo et al., Nos. A 202 010 520/519/518 (B.I.A. July 7,
2016), aff’g Nos. A 202 010 520/519/518 (Immig. Ct. Hartford
Mar. 9, 2016). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
“Where, as here, the BIA adopts the IJ’s reasoning and
offers additional commentary, we review the decision of the
IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d
102, 105 (2d Cir. 2007). We review the agency’s factual
findings for substantial evidence and its legal conclusions
de novo. 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d
191, 195 (2d Cir. 2014) (holding that we “review de novo the
legal determination of whether a group constitutes a
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‘particular social group’”); Joaquin-Porras v. Gonzales, 435
F.3d 172, 181 (2d Cir. 2006) (reviewing denial of CAT relief
for substantial evidence).
Asylum & Withholding of Removal
To qualify for asylum or withholding of removal, an
applicant 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). To constitute a particular social group, a
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).
“A particular social group cannot be defined exclusively by
the claimed persecution, . . . it must be recognizable as a
discrete group by others in the society, and . . . it must
have well-defined boundaries.” Id. at 232 (internal
quotation marks omitted); Paloka, 762 F.3d at 195-97
(deferring to M-E-V-G-’s definition of social group).
The agency did not err in concluding that Gomez-Domingo
failed to demonstrate membership in a cognizable social
group. Her proposed social group—victims of gang extortion—
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encompasses a large portion of Guatemala’s population and
lacks any boundaries, socially distinctive features, or
common characteristics aside from the alleged persecution.
See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)
(“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.’”); Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d
Cir. 1999) (explaining that “general crime conditions” do
not constitute persecution on account of a protected
ground).
Additionally, Gomez-Domingo’s newly-formulated social
group of women with children who live alone is unexhausted.
See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-22
(2d Cir. 2007). Even were it exhausted, the proposed social
group is contradicted by Gomez-Domingo’s allegations that
her brother was also targeted for extortion.
Finally, Gomez-Domingo’s argument that her brother’s
2003 murder amounted to psychological persecution is
misplaced because she did not establish that her brother
was targeted because of a protected ground, or that she was
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or would be targeted on account of a family relationship.
See Melgar de Torres, 191 F.3d at 313.
CAT Relief
To obtain CAT relief, an applicant must show that she
is “more likely than not” to be tortured. 8 C.F.R.
§ 1208.16(c)(2). Torture is defined as severe pain and
suffering “inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1). Acquiescence, in turn, “requires that the
public official, prior to the activity constituting
torture, have awareness of such activity and thereafter
breach his or her legal responsibility to intervene to
prevent such activity.” 8 C.F.R. § 1208.18(a)(7). The
agency must consider “all evidence relevant to the
possibility of future torture,” including: “[e]vidence of
past torture,” evidence regarding the possibility of
internal relocation, “[e]vidence of gross, flagrant, or
mass violations of human rights,” and “[o]ther relevant
information regarding conditions in the country of
removal.” 8 C.F.R. § 1208.16(c)(3).
Substantial evidence supports the agency’s conclusion
that Gomez-Domingo did not establish a likelihood of
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torture or a likelihood that Guatemalan officials would
acquiesce in any harm she faced from gang members. Gomez-
Domingo was never physically harmed; her parents live an
hour away (in the town where Gomez-Domingo grew up) and
have not been harmed or threatened by any gang members; and
she did not seek help from the police or provide any
detailed testimony or corroboration that local police
worked with the gang or turned a blind eye to gang
violence. Given this lack of particularized evidence of
torture or government acquiescence, the agency reasonably
concluded that general country conditions evidence showing
government corruption and impunity for gang violence were
not enough to establish a likelihood of torture with
government acquiescence. See Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 158 (2d Cir. 2005) (denying petition where
applicant “present[ed] no particularized evidence
suggesting that she [was] likely to be subjected to
torture”); Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.
2003) (alien must show a likelihood of torture in “[her]
particular alleged circumstances”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
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and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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