Gomez-Domingo v. Sessions ( 2018 )


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  •     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
    5
    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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