Landi Chalco v. Sessions ( 2018 )

17-66
Landi Chalco v. Sessions
BIA
Straus, IJ
A205 709 657
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 3rd day of April, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SERGIO RAMIRO LANDI CHALCO,
14
15 Petitioner,
16
17 v. 17-66
18 NAC
19
20 JEFFERSON B. SESSIONS III,
21 UNITED STATES ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Justin Conlon, Hartford, CT.
27
28 FOR RESPONDENT: Chad A. Readler, Acting Assistant
29 Attorney General; Paul Fiorino,
1 Senior Litigation Counsel; Rebekah
2 Nahas, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Sergio Ramiro Landi Chalco, a native and
12 citizen of Ecuador, seeks review of a December 9, 2016,
13 decision of the BIA affirming a November 30, 2015, decision
14 of an Immigration Judge (“IJ”) denying asylum, withholding of
15 removal, and relief under the Convention Against Torture
16 (“CAT”). In re Sergio Ramiro Landi Chalco, No. A205 709 657
17 (B.I.A. Dec. 9, 2016), aff’g No. A205 709 657 (Immig. Ct.
18 Hartford Nov. 30, 2015). We assume the parties’ familiarity
19 with the underlying facts and procedural history in this case.
20 We have reviewed the decision of the IJ as modified by
21 the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
22 F.3d 520, 522 (2d Cir. 2005). Since Chalco entered (without
23 inspection) in 2003, he failed to timely file his asylum
24 application with one year of his entry. In any event, he
25 would not qualify. The only issue properly before us is
2
1 whether Landi Chalco satisfied his burden of proof for
2 withholding of removal (asylum) by establishing that the
3 extortion he fears in Ecuador is on account of his membership
4 in a cognizable social group, namely individuals with ties to
5 the United States. We find no error in the agency’s
6 conclusion that he did not.
7 In order to demonstrate eligibility for asylum and
8 withholding of removal, “the applicant must establish that
9 race, religion, nationality, membership in a particular
10 social group, or political opinion was or will be at least
11 one central reason for persecuting the applicant.” 8 U.S.C.
12 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Matter of
13 C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010). To constitute
14 a particular social group, a group must be: “(1) composed of
15 members who share a common immutable characteristic,
16 (2) defined with particularity, and (3) socially distinct
17 within the society in question.” Matter of M-E-V-G-, 26 I.
18 & N. Dec. 227, 237 (B.I.A. 2014).
19 The agency determined that Chalco’s proposed social group
20 is not cognizable because it was not defined with sufficient
21 particularity. The boundaries of the proposed group--
22 individuals with ties to the United States--are overbroad and
3
1 narrowed only by a subjectively defined factor that does not
2 “provide a clear benchmark for determining who falls within
3 the group.” Id. at 239. Indeed, a determination of who has
4 “ties” to the United States involves subjective
5 interpretations rather than objective standards, and thus the
6 boundaries of the proposed group cannot be objectively drawn.
7 See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)
8 (“If ‘wealth’ defined the boundaries of a particular social
9 group, a determination about whether any petitioner fit into
10 the group (or might be perceived as a member of the group)
11 would necessitate a sociological analysis as to how persons
12 with various assets would have been viewed by others in their
13 country.”); see also Matter of S-E-G-, 24 I. & N. Dec. 579,
14 585 (BIA 2008) (finding too amorphous the proposed group of
15 “male children who lack stable families and meaningful adult
16 protection[] [and] who are from middle and low income classes
17 . . . because people’s ideas of what those terms mean can
18 vary” (internal quotation marks omitted)). The social group
19 posted by Chalco is (simply) any Ecuadorian who is here.
20 Moreover, Chalco failed to demonstrate that his proposed
21 group was socially distinct in Ecuadorian society. “To have
22 social distinction, there must be evidence showing that
4
1 society in general perceives, considers, or recognizes
2 persons sharing the particular characteristic to be a group.”
3 Matter of A-R-C-G-, 26 I. & N. Dec. 388, 393-94 (B.I.A. 2014)
4 (internal quotation marks omitted). Chalco submitted no
5 evidence that Ecuadorian society views individuals with ties
6 to the United States as a distinct group.
7 Chalco now argues that the agency erred by failing to
8 introduce evidence of conditions in Ecuador, such as the U.S.
9 State Department’s Human Rights Report. We do not reach this
10 issue because, as the Government argues, Chalco failed to
11 exhaust it before the BIA. See Lin Zhong v. U.S. Dep’t of
12 Justice, 480 F.3d 104, 120-22 (2d Cir. 2007). We note,
13 however, that Chalco has not cited any material passage from
14 the Human Rights Reports.
15 Because Chalco’s proposed social group is not defined
16 with particularity and the record does not include any
17 evidence that the group is socially distinct in Ecuadorian
18 society, Chalco failed to establish that he faces harm on
19 account of his membership in a cognizable social group. See
20 Ucelo-Gomez, 509 F.3d at 73; Matter of M-E-V-G-, 26 I. & N.
21 Dec. at 237. Accordingly, he did not state a claim for asylum
5
1 or withholding of removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i),
2 1231(b)(3)(A).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk of Court
6