Pereanez-Betancur v. Sessions , 679 F. App'x 37 ( 2017 )

15-325
Pereanez-Betancur v. Sessions
BIA
Verrillo, IJ
A201 285 549
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
15th day of February, two thousand seventeen.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
JHOVANY PEREANEZ-BETANCUR, AKA
AMBROSIO ROJAS-CASARES,
Petitioner,
v. 15-325
NAC
JEFF SESSIONS, UNITED STATES
ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Elyssa N. Williams, Glenn L.
Formica, New Haven, C.T.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; John W.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Jeff Sessions is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
Blakeley, Assistant Director; Jason
Wisecup, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Petitioner Jhovany Pereanez-Betancur, a native and citizen
of Colombia, seeks review of a January 9, 2015, decision of the
BIA affirming a June 18, 2013, decision of an Immigration Judge
(“IJ”) denying Pereanez-Betancur’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Jhovany Pereanez-Betancur, No. A201 285
549 (B.I.A. Jan. 9, 2015), aff’g No. A201 285 549 (Immig. Ct.
Hartford June 18, 2013). In the circumstances of this case,
we review the IJ’s decision as modified by the BIA, i.e.,
assuming Pereanez-Betancur’s credibility. See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan
Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). In so
doing, we review factual findings only to determine whether they
are supported by substantial evidence, and conclusions of law
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de novo. See Niang v. Holder, 762 F.3d 251, 253 (2d Cir. 2014).
I. Persecution Based on Social Group
The agency reasonably concluded that Pereanez-Betancur
failed to establish a nexus to a protected ground, which he
alleged was a social group comprised of Colombian males between
the ages of 12 and 25 who cooperate with Colombian authorities
in resisting Fuerzas Armadas Revolucionarias de Colombia
(“FARC”).
To establish eligibility for asylum and withholding of
removal based on membership in a “particular social group,” an
applicant must show past persecution or a well-founded fear or
likelihood of future persecution on account of his membership
in that group. See 8 U.S.C. § 1101(a)(42)(A); Castro v.
Holder, 597 F.3d 93, 100 (2d Cir. 2010). To be cognizable, a
social 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); see also
Matter of W-G-R-, 26 I. & N. Dec. 208, 212-18 (B.I.A. 2014).
An “immutable characteristic” is one that members of the group
“either cannot change, or should not be required to change
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because it is fundamental to their individual identities or
consciences.” Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d
Cir. 2007) (internal quotation marks omitted).
“‘Particularity’ refers to whether the group is ‘sufficiently
distinct’ that it would constitute ‘a discrete class of
persons.’” Matter of W-G-R-, 26 I. & N. at 210 (quoting Matter
of S-E-G-, 24 I. & N. Dec. 579, 584 (B.I.A. 2008)). Social
distinction requires that the shared traits that characterize
the social group be sufficient for the group to “be perceived
as a group by society.” Matter of M-E-V-G-, 26 I. & N. Dec.
at 240; see Matter of W-G-R-, 26 I. & N. Dec. at 216; Paloka,
762 F.3d at 196 (“[W]hat matters is whether society as a whole
views the group as socially distinct, not the persecutor’s
perception.”). “[B]roadly-based characteristics such as
youth and gender” will not by themselves suffice to define a
particular social group. Gomez v. INS, 947 F.2d 660, 664 (2d
Cir. 1991). Rather, the shared traits must be “recognizable
as a discrete group by others in the society.” Paloka, 762 F.3d
at 196 (internal quotation marks omitted). “Persecutory
conduct aimed at a social group cannot alone define the group,
which must exist independently of the persecution.” Id.
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(quoting Matter of W-G-R-, 26 I. & N. Dec. at 215). That is
because, while “perception of the applicant’s persecutors may
be relevant” in determining whether society views the group as
distinct, it “is not itself enough to make a group socially
distinct” because “the immutable characteristic of their shared
past experience” can exist “independent of the persecution.”
Matter of M-E-V-G-, 26 I. & N. Dec. at 242-43.
The agency reasonably concluded that Pereanez-Betancur
failed to establish persecution based on membership in such a
social group. Specifically, Pereanez-Betancur submitted no
evidence that young Colombian males who cooperated with the
government and resisted FARC are viewed as a particular and
socially distinct group by Colombian society or that FARC is
more likely to target such men. Indeed, FARC allegedly
targeted Pereanez-Betancur before he reported its activities
to the police. In any event, persons targeted by a common
adversary do not thereby constitute a particular and distinct
social group. Rather, the evidence must show that men were
targeted because they were members of such a group. See Matter
of M-E-V-G-, 26 I. & N. Dec. at 242-43; see generally Salazar
v. Lynch, 645 F. App’x 53, 56 (2d Cir. 2016) (concluding young
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Guatemalan men who resist or reject forcible gang membership
lacked requisite particularity and social visibility); Oliva–
Flores v. Holder, 477 F. App’x 774, 775–76 (2d Cir. 2012) (same);
Paucar–Sarmiento v. Holder, 482 F. App’x 656, 658–59 (2d Cir.
2012) (same regarding young Ecuadorian men). The country
conditions evidence reflects that FARC recruits young men in
Colombia, but does not limit its retaliatory targets to that
group, or even to a group that cooperates with authorities.
On this record, we discern no error in the agency’s
conclusion that Pereanez-Betancur failed to demonstrate
persecution based on membership in a sufficiently particular
or socially distinct group.
II. CAT Relief
Pereanez-Betancur argues that he is eligible for CAT relief
because FARC members came to his home and threatened to kill
him and because the Colombian government remains willfully
blind to FARC’s activities.
To obtain CAT relief, an applicant must show that he would
more likely than not be tortured by or with the acquiescence
of government officials in the country of removal. See 8 C.F.R.
§ 1208.16(c); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.
6
2004). As we held in Khouzam, “acquiescence” requires that
government officials either knew of or remained willfully blind
to acts of torture. Id. at 171. The agency reasonably
concluded that Pereanez-Betancur failed to carry this burden.
While he submitted evidence that FARC commits acts of violence
against civilians, recruits young boys into its ranks, and
retaliates against those who report FARC activities to the
police, that evidence also shows that the Colombian government
has taken considerable steps to combat and weaken FARC. On this
record, a reasonable fact finder would not be compelled to
conclude that Pereanez-Betancur is likely to be tortured with
the knowledge or willful blindness of the Colombian government.
See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60
(2d Cir. 2005) (reviewing denial of CAT relief for substantial
evidence); Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)
(“Decisions as to . . . which of competing inferences to draw
are entirely within the province of the trier of fact.”
(internal quotation marks omitted)). Accordingly, we identify
no error in the agency’s denial of CAT relief.
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For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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