Lopez-Mendoza v. Holder , 564 F. App'x 635 ( 2014 )

13-1152
Lopez-Mendoza v. Holder
BIA
Straus, I.J.
A201 242 380
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of May, two thousand fourteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 CLARA LOPEZ-MENDOZA,
14 Petitioner,
15
16 v. 13-1152
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory C. Osakwe, Hartford,
24 Connecticut.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; Kerry A. Monaco, Trial
29 Attorney; Kathryn M. Martinez, Law
30 Clerk, Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington, D.C.
3 UPON DUE CONSIDERATION of this petition for review of a
4 decision of the Board of Immigration Appeals (“BIA”), it is
5 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
6 review is DENIED.
7 Clara Lopez-Mendoza, a native and citizen of Mexico,
8 seeks review of a March 22, 2013, decision of the BIA
9 affirming the September 5, 2012, decision of an Immigration
10 Judge (“IJ”) denying asylum, withholding of removal, and
11 relief under the Convention Against Torture (“CAT”). In re
12 Clara Lopez-Mendoza, No. A201 242 380 (B.I.A. Mar. 22, 2013),
13 aff’g No. A201 242 380 (Immig. Ct. Hartford Sept. 5, 2012).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history of this case.
16 Under the circumstances of this case, we review the IJ’s
17 decision as supplemented by the BIA. See Yan Chen v.
18 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards of
19 review are well established. 8 U.S.C. § 1252(b)(4)(B); see
20 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 We address only withholding of removal, as Lopez-Mendoza does
22 not challenge the denial of asylum or CAT relief. See Yueqing
23 Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
2
1 Lopez-Mendoza argues that she identified a cognizable
2 social group for purposes of establishing her eligibility for
3 withholding of removal. She defines this social group in her
4 brief as: “returning Mexicans from the United States who are
5 perceived by miscreants back in Mexico as wealthy and who are
6 therefore very likely targets of violent crimes.”
7 Petitioner’s Br. 5-6.
8 The term “particular social group” is defined as “a group
9 of persons who share a common characteristic other than their
10 risk of being persecuted, or who are perceived as a group by
11 society.” Matter of C-A-, 23 I&N Dec. 951, 956 (BIA 2006)
12 (internal quotation marks omitted). The group must have a
13 degree of “social visibility” and be sufficiently defined, or
14 “particular.” Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74-
15 76 (BIA 2007). In Ucelo-Gomez v. Mukasey, we endorsed the
16 BIA’s determination that the group “wealthy Guatemalans” is
17 not cognizable as a particular social group because wealth is
18 a relative and subjective term that makes it difficult to
19 define. 509 F.3d 70, 73-74 (2d Cir. 2007) (per curiam).
20 Although Lopez-Mendoza attempts to narrow her group to those
21 perceived as wealthy because they are returning from the
22 United States, the basis of the group is still premised on
23 wealth, or the perception of wealth, rather than a
3
1 particularized social status.1 “[H]arm motivated purely by
2 wealth is not persecution” and “[o]ur own precedent validates
3 the idea that class status does not establish a social group
4 with sufficient particularity.” Id. at 74; see also Matul-
5 Hernandez v. Holder, 685 F.3d 707, 713 (8th Cir. 2012)
6 (upholding the conclusion of the BIA that “the group
7 ‘Guatemalans returning from the United States who are
8 perceived as wealthy’ is not a particular social group within
9 the meaning of the INA”). Therefore, because Lopez-Mendoza
10 has not established a fear of future persecution on account of
11 her membership within a particular social group, we find no
12 error in the agency’s denial of withholding of removal. See
13 8 C.F.R. § 1208.16(b).
14 We decline to consider Lopez-Mendoza’s unexhausted claim
15 that the IJ erred by denying a continuance. See Lin Zhong v.
16 U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).
1
We find instructive the First Circuit’s analysis of
this distinction:
Conceivably, a class of persons identified
partly based on comparative wealth could be the
subject of persecution on the basis of that
status. . . . But being part of a landowning
class is quite different than happening to be
wealthy or perceived to be wealthy because of
. . . ‘returning to Guatemala after a lengthy
residence in the United States.’”
Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011).
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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