15-2210
Hernandez v. Barr
BIA
Vomacka, IJ
A073 644 702
A200 816 645/650/651
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 5th day of April, two thousand nineteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 VIDAL A. HERNANDEZ, JOSE VIDAL
14 HERNANDEZ-CLAROS, MARIA DEL
15 ROSARIO HERNANDEZ-CLAROS,
16 ROSARIO CLAROS-de HERNANDEZ,
17 Petitioners,
18
19 v. 15-2210
20 NAC
21 WILLIAM P. BARR, UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26
27 FOR PETITIONERS: Bruno J. Bembi, Hempstead, NY.
28
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Leslie McKay,
3 Senior Litigation Counsel;
4 Madeline Henley, Attorney, Office
5 of 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
12 is DENIED.
13 Lead petitioner Rosario Claros-de Hernandez
14 (“Hernandez”), her husband Vidal A. Hernandez, and their
15 children Jose Vidal Hernandez-Claros and Maria del Rosario
16 Hernandez-Claros, natives and citizen of El Salvador, seek
17 review of a June 30, 2015, decision of the BIA affirming a
18 November 6, 2013, decision of an Immigration Judge (“IJ”)
19 denying Hernandez’s application for asylum, withholding of
20 removal, and relief under the Convention Against Torture
21 (“CAT”).1 In re Vidal A. Hernandez, et al., Nos. A 073 644
1 In 2013, Vidal Hernandez’s removal proceedings were
consolidated with his wife’s and children’s proceedings. He and
the children proceeded only as derivative applicants on
Hernandez’s asylum application. See 8 U.S.C. § 1158(b)(3).
2
1 702, A200 816 645/650/651 (B.I.A. June 30, 2015), aff’g No.
2 A 073 644 702 , A200 816 645/650/651 (Immig. Ct. N.Y. City
3 Nov. 6, 2013). We assume the parties’ familiarity with the
4 underlying facts and procedural history in this case.
5 We have reviewed the IJ’s decision as modified by the
6 BIA, reaching only the nexus determination and denial of
7 CAT relief. See Xue Hong Yang v. U.S. Dep’t of Justice,
8 426 F.3d 520, 522 (2d Cir. 2005). We +assume Hernandez’s
9 credibility because although the IJ expressed concerns,
10 there is no explicit adverse credibility ruling and the BIA
11 did not discuss credibility. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Yan Chen v. Gonzales, 417 F.3d 268,
13 271-72 (2d Cir. 2005). We review the agency’s legal
14 conclusions de novo and its factual findings under the
15 substantial evidence standard. Y.C. v. Holder, 741 F.3d
16 324, 332 (2d Cir. 2013).
17 Asylum & Withholding of Removal. For asylum and
18 withholding of removal, an “applicant must establish that
19 race, religion, nationality, membership in a particular
20 social group, or political opinion was or will be at least
21 one central reason for” the claimed persecution. 8 U.S.C.
3
1 §§ 1158(b)(1)(B)(i) (asylum), 1231(b)(3)(A) (withholding);
2 Matter of C-T-L, 25 I. & N. Dec. 341, 346 (B.I.A. 2010)
3 (holding that the “one central reason” standard also
4 applies to withholding of removal). “Courts review de novo
5 the legal determination of whether a group constitutes a
6 ‘particular social group’ under the INA.” Paloka v.
7 Holder, 762 F.3d 191, 195 (2d Cir. 2014). To constitute a
8 particular social group, a group must be “(1) composed of
9 members who share a common immutable characteristic,
10 (2) defined with particularity, and (3) socially distinct
11 within the society in question.” Matter of M-E-V-G-, 26 I.
12 & N. Dec. 227, 237 (B.I.A. 2014); see also Paloka, 762 F.3d
13 at 195-97.
14 The agency did not err in concluding that Hernandez
15 failed to demonstrate that she was persecuted on account of
16 her membership in a cognizable social group. Although she
17 checked a box on her asylum application to indicate that
18 she was seeking relief based on her membership in a
19 particular social group, she did not articulate a proposed
20 social group or any other protected ground before the
21 agency. She now argues that she was threatened by MS-13
4
1 gang members based on her membership in a particular social
2 group of “people that refused to acquiesce to gang
3 threats.” Petitioner’s Br. at 9-10. However, “a
4 particular social group cannot be defined exclusively by
5 the claimed persecution, . . . it must be recognizable as a
6 discrete group by others in the society, and . . . it must
7 have well-defined boundaries.” Matter of M-E-V-G-, 26 I. &
8 N. Dec. at 232 (internal quotation marks omitted)).
9 Hernandez alleged fear of criminal activity by gangs
10 without alleging that they had targeted her for any
11 particular reason: “When the harm visited upon members of a
12 group is attributable to the incentives presented to
13 ordinary criminals rather than to persecution, the scales
14 are tipped away from considering those people a ‘particular
15 social group’ within the meaning of the INA.” Ucelo-Gomez
16 v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (rejecting
17 proposed social group of “wealthy Guatemalans”). Harm
18 suffered as a result of “general crime conditions” does not
19 constitute persecution on account of a protected ground.
20 Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999).
21
5
1 CAT Relief. There is no nexus requirement for CAT
2 relief. “[T]he CAT expressly prohibits the United States
3 from returning any person to a country in which it is more
4 likely than not that he or she would be in danger of being
5 subjected to torture.” Khouzam v. Ashcroft, 361 F.3d 161,
6 168 (2d Cir. 2004) (internal quotation marks omitted).
7 “Torture is defined as any act by which severe pain or
8 suffering, whether physical or mental, is intentionally
9 inflicted on a person . . . by or at the instigation of or
10 with the consent or acquiescence of a public official or
11 other person acting in an official capacity.” 8 C.F.R.
12 § 1208.18(a)(1). Acquiescence, in turn, “requires that the
13 public official, prior to the activity constituting
14 torture, have awareness of such activity and thereafter
15 breach his or her legal responsibility to intervene to
16 prevent such activity.” Id. § 1208.18(a)(7). The
17 applicant has the burden of proving that torture is “more
18 likely than not” to occur. Id. § 1208.16(c)(2).
19 The country conditions evidence and Hernandez’s own
20 description of the response to her extortion complaint
21 reflect that the Salvadoran government is not acquiescent
6
1 or complicit. The local prosecutor’s office assigned an
2 investigator to her case and requested that she help the
3 authorities by delivering counterfeit money, but Hernandez
4 declined to participate because she feared the gang members
5 would retaliate against her. She also did not provide the
6 authorities with her persecutor’s full name or nickname.
7 As the country conditions evidence reflects, the government
8 is acting to combat gang violence and extortion, including
9 criminal conduct run by gang members in prisons, albeit
10 with limited success. The record therefore does not compel
11 the conclusion that Salvadoran authorities are likely to
12 acquiesce in any harm Hernandez faces from MS-13 or other
13 gangs. See 8 U.S.C. § 1252(b)(4)(B) (“The administrative
14 findings of fact are conclusive unless any reasonable
15 adjudicator would be compelled to conclude to the
16 contrary.”).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request
7
1 for oral argument in this petition is DENIED in accordance
2 with Federal Rule of Appellate Procedure 34(a)(2), and
3 Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
8