Paucar-Sarmiento v. Holder

10-1500-ag Paucar-Sarmiento v. Holder BIA Van Wyke, IJ A099 515 498 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 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 31st day of May, two thousand twelve. 5 6 PRESENT: 7 REENA RAGGI, 8 SUSAN L. CARNEY, 9 Circuit Judges.* 10 _______________________________________ 11 12 MANUEL PAUCAR-SARMIENTO, 13 Petitioner, 14 15 v. 10-1500-ag 16 NAC 17 ERIC H. HOLDER, JR., UNITED STATES 18 ATTORNEY GENERAL, UNITED STATES 19 DEPARTMENT OF JUSTICE, EXECUTIVE 20 OFFICE FOR IMMIGRATION REVIEW, 21 Respondents. 22 _______________________________________ 23 * The Honorable Roger J. Miner, originally a member of the panel, died on February 18, 2012. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). 1 FOR PETITIONER: Manuel Paucar-Sarmiento, pro se, 2 Corona, New York. 3 4 FOR RESPONDENTS: Tony West, Assistant Attorney 5 General; Leslie McKay, Assistant 6 Director; Kelly J. Walls; Ilissa M. 7 Gould, Trial Attorneys, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, D.C. 11 12 UPON DUE CONSIDERATION of this petition for review of a 13 decision of the Board of Immigration Appeals (“BIA”), it is 14 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 15 review is DENIED. 16 Manuel Paucar-Sarmiento, a native and citizen of 17 Ecuador, seeks review of a March 24, 2010 decision of the 18 BIA affirming the June 12, 2008 decision of an immigration 19 judge (“IJ”) denying his application for asylum, withholding 20 of removal, and relief under the Convention Against Torture 21 (“CAT”). In re Manuel Paucar-Sarmiento, No. A099 515 498 22 (B.I.A. Mar. 24, 2010), aff’g No. A099 515 498 (Immig. Ct. 23 N.Y.C. June 12, 2008). We assume the parties’ familiarity 24 with the underlying facts and procedural history of this 25 case, which we reference only as necessary to explain our 26 decision. 27 We have reviewed both the BIA’s and IJ’s opinions, for 28 completeness. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d 2 1 Cir. 2008). The applicable standards of review are well 2 established. 8 U.S.C. § 1252(b)(4)(B); See Aliyev v. 3 Mukasey, 549 F.3d 111, 115 (2d Cir. 2008). 4 For applications like this one, which are governed by 5 the REAL ID Act, the applicant must establish persecution 6 based on “race, religion, nationality, membership in a 7 particular social group, or political opinion” to 8 demonstrate eligibility for asylum and withholding of 9 removal. 8 U.S.C. §§ 1158(b)(1)(B)(i) 1231(b)(3)(A); see 10 also Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010); 11 Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208 (BIA 2007). As 12 the agency determined, Paucar-Sarmiento’s showing fell short 13 because he failed to establish the required nexus between 14 the harm suffered and feared and one of the protected 15 grounds. 16 To demonstrate that an applicant’s political opinion 17 was or will be “at least one central reason” for his 18 persecution (past or prospective), 8 U.S.C. 19 § 1158(b)(1)(B)(i), the applicant must show that the 20 persecutor was motivated by his or her perception of the 21 applicant’s opinion, rather than merely by his or her own 22 opinion. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 3 1 (2d Cir. 2005). In this case, Paucar-Sarmiento failed to 2 demonstrate that gang members harmed him or would harm him 3 because of his political opinion. He testified that they 4 attacked him for refusing recruitment when they were 5 attempting to increase their group’s size and not because of 6 any beliefs Paucar-Sarmiento held. See INS v. 7 Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that the 8 “existence of a generalized political motive underlying . . 9 . forced recruitment is inadequate to establish (and, 10 indeed, goes far to refute) the proposition that 11 [petitioner] fears persecution on account of political 12 opinion” (internal quotation marks omitted)). 13 Paucar-Sarmiento also failed to demonstrate his 14 membership in a “particular social group.” A “particular 15 social group” must: (1) “share a common, immutable 16 characteristic” that has a level of “social visibility” 17 sufficient to identify members to others in the community, 18 particularly to potential persecutors; and (2) be defined 19 with sufficient particularity. Matter of A-M-E & J-G-U-, 24 20 I. & N. Dec. 69, 73-76 (BIA 2007); see also Ucelo-Gomez v. 21 Mukasey, 509 F.3d 70, 72-74 (2d Cir. 2007)(holding BIA 22 precedential opinion employing these facts to the reasonable 23 interpretation.) Applying this framework in Matter of S-E- 4 1 G-, 24 I. & N. Dec. 579 (BIA 2008), the BIA considered the 2 cases of applicants from El Salvador who, like Paucar- 3 Sarmiento with regard to Ecuador, claimed eligibility for 4 asylum and withholding of removal based on their status as a 5 member of a set of young men who resisted recruitment by 6 gangs. The BIA concluded that the proposed group did not 7 satisfy the “particularity” and “social visibility” tests 8 set forth in Matter of A-M-E- & J-G-U, in part because 9 “victims of gang violence come from all segments of society, 10 and it is difficult to conclude that any ‘group,’ as 11 actually perceived by the criminal gangs, is much narrower 12 than the general population.” Matter of S-E-G-, 24 I. & N. 13 Dec. at 582-88; see also Matter of E-A-G-, 24 I. & N. Dec. 14 591, 594 (BIA 2008). 15 Precedential BIA decisions such as Matter of S-E-G- are 16 eligible for Chevron deference insofar as they represent the 17 BIA’s authoritative interpretations of the statutes Congress 18 has empowered it to enforce. Ucelo-Gomez, 509 F.3d at 72; 19 see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 20 Inc., 467 U.S. 837, 842-45 (1984). Here, we defer to the 21 agency’s interpretation of the statute as announced in 22 Matter of S-E-G-. Because that decision rejects as a 23 “particular social group” one that is for purposes of our 5 1 review indistinguishable from the group proposed here, we 2 conclude that Paucar-Sarmiento’s social group claim fails. 3 Finally, even liberally construing Paucar-Sarmiento’s 4 pro se brief as raising a challenge to the agency’s denial 5 of CAT relief, see Triestman v. Fed. Bureau of Prisons, 470 6 F.3d 471, 474 (2d Cir. 2006), we conclude that the agency 7 did not err in finding that Paucar-Sarmiento failed to 8 demonstrate a likelihood of torture by or with the 9 acquiescence of the Ecuadorean government. The record 10 evidence of country conditions does not support a finding 11 that the Ecuadorean government acquiesces in the actions of 12 criminal gangs, and Paucar-Sarmiento himself testified that 13 Ecuadorean police had provided him some assistance in the 14 past. See 8 C.F.R. § 1208.18(a)(1) (requiring torture 15 cognizable under CAT to be “inflicted by or at the 16 instigation of or with the consent or acquiescence of a 17 public official or other person acting in an official 18 capacity”); see also Khouzam v. Ashcroft, 361 F.3d 161, 170- 19 71 (2d Cir. 2004) (holding that cognizable acquiescence 20 “requires only that government officials know of or remain 21 willfully blind to an act and thereafter breach their legal 22 responsibility to prevent it”). 23 6 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 7