16-895
Illescas Castro v. Sessions
BIA
Straus, IJ
A088 445 133
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 17th day of November, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 FAUSTO ENRIQUEZ ILLESCAS CASTRO,
14 Petitioner,
15
16 v. 16-895
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory Osakwe, Hartford, CT.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Jesse
27 Matthew Bless, Senior Litigation
28 Counsel; Barbara Joan Leen, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 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 is
4 DENIED.
5 Petitioner Fausto Enriquez Illescas Castro (“Castro”), a
6 native and citizen of Ecuador, seeks review of a March 16, 2016,
7 decision of the BIA affirming an October 23, 2014, decision of
8 an Immigration Judge (“IJ”) denying Castro’s application for
9 withholding of removal. In re Fausto Enriquez Illescas Castro,
10 No. A088 445 133 (B.I.A. March 16, 2016), aff’g No. A088 445
11 133 (Immig. Ct. Hartford Oct. 23, 2014). We assume the
12 parties’ familiarity with the underlying facts and procedural
13 history in this case.
14 Under the circumstances of this case, we have reviewed the
15 IJ’s decision as modified by the BIA—that is, without regard
16 to the IJ’s determination regarding credibility. Xue Hong Yang
17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d
20 Cir. 2014).
21 To establish eligibility for withholding of removal based
22 on membership in a particular social group, an applicant must
23 establish both that the group is legally cognizable,
2
1 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007), and
2 that the applicant has suffered past persecution or has
3 demonstrated a likelihood of future persecution on account of
4 his membership in that group, Castro v. Holder, 597 F.3d 93,
5 100 (2d Cir. 2010). A particular social group is cognizable
6 if “the group is (1) composed of members who share a common
7 immutable characteristic, (2) defined with particularity, and
8 (3) socially distinct within the society in question.” Matter
9 of M-E-V-G-, 26 I&N Dec. 227, 237 (B.I.A. 2014). The group must
10 be “discrete and have definable boundaries—it must not be
11 amorphous, overbroad, diffuse, or subjective.” Id. at 239.
12 And the group “must be perceived as a group by society.” Id.
13 at 240.
14 We conclude that the agency did not err in finding that
15 Castro failed to show that his proposed particular social group
16 of “young Ecuadorian men who resist recruitment efforts by
17 criminal gang members” was cognizable. Castro offered no
18 evidence that individuals who oppose forced gang recruitment
19 are viewed by the relevant society as a distinct group and the
20 record is devoid of documentary evidence discussing the
21 treatment of such individuals as compared to the rest of the
22 relevant country’s population. See 8 U.S.C. § 1231(b)(3)(C)
23 (providing that burden of proof for withholding of removal is
3
1 on alien); Matter of M-E-V-G-, 26 I&N Dec. at 244 (“[T]he
2 applicant has the burden to establish a claim based on
3 membership in a particular social group and will be required
4 to present evidence that the proposed group exists in the
5 society in question.”).
6 The agency’s determination that Castro failed to establish
7 a cognizable particular social group is dispositive of
8 withholding of removal. Accordingly, we decline to reach the
9 agency’s additional finding regarding the likelihood of harm.
10 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
11 rule courts and agencies are not required to make findings on
12 issues the decision of which is unnecessary to the results they
13 reach.”).
14 For the foregoing reasons, the petition for review is
15 DENIED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
4