Varela-Lopez v. Sessions , 695 F. App'x 1 ( 2017 )


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  •      16-1012
    Varela-Lopez v. Sessions
    BIA
    Straus, IJ
    A078 283 601
    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   15th day of June, two thousand seventeen.
    5
    6   PRESENT:
    7            JOSÉ A. CABRANES,
    8            BARRINGTON D. PARKER,
    9            GERARD E. LYNCH,
    10                 Circuit Judges.
    11   _____________________________________
    12
    13   AYLEEN FRANCELES VARELA-LOPEZ,
    14            Petitioner,
    15
    16                     v.                                            16-1012
    17                                                                   NAC
    18   JEFFERSON B. SESSIONS III, UNITED
    19   STATES ATTORNEY GENERAL,
    20            Respondent.
    21   _____________________________________
    22
    23   FOR PETITIONER:                    Jon E. Jessen, Stamford, CT.
    24
    25   FOR RESPONDENT:                    Benjamin C. Mizer, Principal Deputy
    26                                      Assistant Attorney General; Carl H.
    27                                      McIntyre, Assistant Director;
    28                                      Justin R. Markel, Senior Litigation
    29                                      Counsel, 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 in part and GRANTED in part.
    5        Petitioner Ayleen Franceles Varela-Lopez, a native and
    6    citizen of Honduras, seeks review of a March 9, 2016, decision
    7    of the BIA affirming a November 3, 2014, decision of an
    8    Immigration Judge (“IJ”) denying withholding of removal and
    9    relief under the Convention Against Torture (“CAT”).     In re
    10   Ayleen Franceles Varela-Lopez, No. A078 283 601 (B.I.A. Mar.
    11   9, 2016), aff’g No. A078 283 601 (Immig. Ct. Hartford Nov. 3,
    12   2014).   We assume the parties’ familiarity with the underlying
    13   facts and procedural history in this case.
    14       We have reviewed both the IJ’s and the BIA’s decisions
    15   denying withholding of removal and CAT relief “for the sake of
    16   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 
    448 F.3d 17
      524, 528 (2d Cir. 2006).   The applicable standards of review
    18   are well established.   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
    19   v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009).    The agency did
    20   not err in finding that Varela-Lopez failed to satisfy her
    21   burden of proof for withholding of removal, but it did err in
    22   failing to adequately consider evidence material to her CAT
    23   claim.
    2
    1    Withholding of Removal
    2        In order to demonstrate eligibility for withholding of
    3    removal, an applicant must establish that her “life or freedom
    4    would be threatened . . . because of [her] race, religion,
    5    nationality, membership in a particular social group, or
    6    political   opinion.”        8 U.S.C.          § 1231(b)(3)(A).        To
    7    constitute a particular social group, a group must be: “(1)
    8    composed    of    members   who        share     a   common     immutable
    9    characteristic,    (2)   defined       with    particularity,    and   (3)
    10   socially distinct within the society in question.”              Matter of
    11   M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also
    12   Ucelo-Gomez v. Mukasey, 
    509 F.3d 70
    , 72-74 (2d Cir. 2007).
    13   “[A] ‘particular social group’ cannot be defined exclusively
    14   by the claimed persecution, . . . it must be ‘recognizable’ as
    15   a discrete group by others in the society, and . . . it must
    16   have . . . definable boundaries.”             Matter of M-E-V-G-, 26 I.
    17   & N. Dec. at 232.     “[I]t must not be amorphous, overbroad,
    18   diffuse, or subjective.”     
    Id. at 239.
            The agency did not err
    19   in finding that Varela-Lopez failed to demonstrate membership
    20   in a cognizable social group.
    21       First, Varela-Lopez’s proposed social group of victims of
    22   gang extortion failed because it was defined by the claimed
    23   persecution alone.    See 
    id. at 232.
             Second, Varela-Lopez did
    3
    1    not demonstrate that she was or would be targeted for extortion
    2    on account of her familial ties or gender given her testimony
    3    that her family members have only ever been targeted for
    4    extortion and recruitment purposes, and that “everybody” in her
    5    neighborhood had been extorted.      See 
    Ucelo-Gomez, 509 F.3d at 6
       73 (“When the harm visited upon members of a group is
    7    attributable to the incentives presented to ordinary criminals
    8    rather than to persecution, the scales are tipped away from
    9    considering those people a ‘particular social group’. . . .”);
    10   see also Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75
    11   (B.I.A. 2007) (holding that the group of “wealthy Guatemalans”
    12   failed the social distinction requirement because it would not
    13   be recognized as a group at a greater risk of crime, extortion,
    14   or robbery).    And, despite evidence of widespread violence
    15   against women in Honduras, the evidence did not show that gangs
    16   target women for extortion on account of their gender.
    17        Because the record evidence does not indicate that either
    18   female victims of extortion or members of Varela-Lopez’s family
    19   are at greater risk of harm than other individuals in Honduras,
    20   Varela-Lopez failed to establish that she was harmed or faces
    21   harm on account of her membership in a cognizable social group
    22   as   required   for   withholding   of   removal.   See   8 U.S.C.
    23   § 1231(b)(3)(A); 
    Ucelo-Gomez, 509 F.3d at 73
    ; Matter of A-M-E
    4
    1    & J-G-U-, 24 I. & N. Dec. at 74-75.            Accordingly, we deny the
    2    petition for review to this extent.
    3    Convention Against Torture
    4        As an initial matter, contrary to the Government’s
    5    contention, we treat Varela-Lopez’s challenge to the denial of
    6    CAT relief as exhausted because the BIA considered and affirmed
    7    the IJ’s denial of CAT relief thereby excusing any failure to
    8    exhaust.    See Xian Tuan Ye Dep’t of Homeland Sec., 
    446 F.3d 289
    ,
    9    296-97 (2d Cir. 2006).       To receive withholding or deferral of
    10   removal under the CAT, an applicant must “establish that it is
    11   more likely than not that he or she would be tortured if removed
    12   to the proposed country of removal.”           8 C.F.R. § 1208.16(c)(2).
    13   Unlike withholding of removal, CAT relief does not require a
    14   nexus to any ground.        See 
    id. “Torture is
    defined as any act
    15   by which severe pain or suffering, whether physical or mental,
    16   is intentionally inflicted on a person . . . by or . . . with
    17   the consent or acquiescence of a public official or other person
    18   acting in an official capacity.”              8 C.F.R. § 1208.18(a)(1);
    19   Pierre v. Gonzales, 
    502 F.3d 109
    , 114, 118 (2d Cir. 2007);
    20   Khouzam    v.   Ashcroft,    
    361 F.3d 161
    ,   172   (2d   Cir.   2004)
    21   (“[T]orture requires only that government officials know of or
    22   remain willfully blind to an act and thereafter breach their
    23   legal responsibility to prevent it.”).
    5
    1        The agency provided insufficient analysis to support its
    2    conclusion   that    Varela-Lopez       failed   to    demonstrate   a
    3    likelihood   of   torture   or   that    Honduran     officials   would
    4    acquiesce in her torture.    See Poradisova v. Gonzales, 
    420 F.3d 5
       70, 77 (2d Cir. 2005) (explaining that “we require a certain
    6    minimum level of analysis from the IJ and BIA opinions . . .
    7    , and indeed must require such if judicial review is to be
    8    meaningful”).     In assessing whether an applicant has satisfied
    9    her burden of proof, the agency must consider all evidence
    10   relevant to the possibility of future torture, including
    11   evidence that the applicant has suffered torture in the past,
    12   “[e]vidence that the applicant could relocate to a part of the
    13   country of removal where . . . she is not likely to be tortured,
    14   . . . evidence of gross, flagrant or mass violations of human
    15   rights within the country of removal,” and other relevant
    16   information on country conditions.        8 C.F.R. § 1208.16(c)(3).
    17       The agency failed to discuss any of the record evidence
    18   material to Varela-Lopez’s CAT claim.        That evidence included
    19   the following: Varela-Lopez’s testimony that gang members
    20   killed her father, uncle, and brother for failing to pay
    21   extortion; the death certificates supporting that testimony;
    22   her testimony that gang members assaulted her and her two living
    23   brothers; threatening letters from gang members; country
    6
    1    reports reflecting increased murder rates of women between 2005
    2    and 2012 (a large number of which were likely related to gangs);
    3    and reports that Honduran police are willfully blind to
    4    violence against women.   Given the agency’s failure to explain
    5    its CAT ruling or analyze any of this evidence, we grant the
    6    petition to this extent and remand for further consideration
    7    of the CAT claim.      See 8 C.F.R. § 1208.16(c); see also
    8    
    Poradisova, 420 F.3d at 77
    .
    9         For the foregoing reasons, the petition for review is
    10   DENIED in part and GRANTED in part and REMANDED for further
    11   proceedings consistent with this order.
    12                                 FOR THE COURT:
    13                                 Catherine O’Hagan Wolfe, Clerk
    7