08-5573-ag

Riano v. Holder

BIA

Straus, IJ

A098 816 493

A098 814 355

A098 816 724

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 22 day of December, two thousand nine. nd

5 PRESENT:

6 ROGER J. MINER,

7 JOSÉ A. CABRANES,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10 _______________________________________

11 FERNANDO CARDENAS RIANO, AKA FERNANDO

12 RIANO CARDENAS; EDDA M. RODRIGUEZ;

13 DIEGO F. CARDENAS,

14 Petitioners,

15 v. 08-5573-ag

16 NAC

17 ERIC H. HOLDER JR., UNITED STATES

18 ATTORNEY GENERAL; JANET NAPOLITANO,

19 SECRETARY OF THE UNITED STATES 
 Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder Jr. is

automatically substituted for former Attorney General

Michael B. Mukasey and Secretary Janet Napolitano is

substituted for former Secretary Michael Chertoff as

respondents in this case.

2

1 DEPARTMENT OF HOMELAND SECURITY,*

2 Respondents.

3 _______________________________________

4 FOR PETITIONERS: Kevin E. Dehghani, New Haven,

5 Connecticut.

6 FOR RESPONDENTS: Michael F. Hertz, Acting Assistant

7 Attorney General; Michael P.

8 Lindemann, Assistant Director;

9 Douglas E. Ginsburg, Senior

10 Litigation Counsel, Office of

11 Immigration Litigation, United

12 States Department of Justice,

13 Washington, D.C.

14 UPON DUE CONSIDERATION of this petition for review of a

15 Board of Immigration Appeals (“BIA”) decision, it is hereby

16 ORDERED, ADJUDGED, AND DECREED that the petition for review

17 is DISMISSED in part and DENIED in part.

18 Fernando Cardenas Riano, Edda M. Rodriguez, and Diego

19 F. Cardenas, natives and citizens of Colombia, seek review

20 of an October 22, 2008 order of the BIA, affirming the

21 December 14, 2006 decision of Immigration Judge (“IJ”)

22 Michael W. Straus, which pretermitted as untimely their

23 application for asylum, and denied their applications for
3

1 withholding of removal and relief under the Convention

2 Against Torture (“CAT”). In re Fernando Cardenas Riano,

3 Edda M. Rodriguez, and Diego F. Cardenas, Nos. A098 816 493,

4 A098 814 355, A098 816 724 (B.I.A. Oct. 22, 2008), aff’g

5 Nos. A098 816 493, A098 814 355, A098 816 724 (Immigr. Ct.

6 Hartford, CT, Dec. 14, 2006). We assume the parties’

7 familiarity with the underlying facts and procedural history

8 in this case.

9 As an initial matter, we lack jurisdiction to review

10 the IJ’s decision insofar as it pretermitted petitioners’

11 untimely asylum application, and we dismiss the petition for

12 review to that extent. See 8 U.S.C. § 1158(a)(3).

13 When the BIA does not expressly “adopt” the IJ’s

14 decision, but its brief opinion closely tracks the IJ’s

15 reasoning, we consider both the IJ’s and the BIA’s opinions

16 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d

17 233, 237 (2d Cir. 2008). We review the agency’s factual

18 findings under the substantial evidence standard. See 8

19 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

20 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of

21 law and the application of law to undisputed fact. 

22 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 
4

1 To establish eligibility for withholding of removal, an

2 applicant must establish that his past persecution or fear

3 of persecution is on account of his race, religion,

4 nationality, political opinion, or membership in a

5 particular social group. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.

6 § 1208.16(b)(1). Riano argues that he established that the

7 harm he suffered and continues to fear bears a nexus to both

8 his political opinion and his membership in the particular

9 social group of wealthy landowners in Colombia. We decline

10 to consider Riano’s unexhausted argument that he

11 demonstrated that the Revolutionary Armed Forces of Colombia

12 (“FARC”) threatened him on account of his political opinion. 

13 See Lin Zhong v. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

14 Cir. 2007). 

15 The agency did not err in finding that Riano failed to

16 demonstrate both that “wealthy landowners” constitutes a

17 particular social group and that FARC threatened him on

18 account of his membership in the particular social group of

19 wealthy landowners in Colombia. See 8 C.F.R. §

20 1208.16(b)(1). Members of a particular social group must

21 “share a common, immutable characteristic,” which may be

22 either innate or a product of shared past experience. 
5

1 Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985). 

2 “The shared characteristic might be an innate one such as

3 sex, color, or kinship ties, or in some circumstances it

4 might be a shared past experience such as former military

5 leadership or land ownership.” Id. The group

6 characteristic must also entail a level of “social

7 visibility” sufficient to identify members to others in the

8 community, particularly to potential persecutors. See

9 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)

10 (citing Matter of C-A-, 23 I. & N. Dec. 951, 960 (B.I.A.

11 2006) and Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74

12 (B.I.A. 2007)). In addition, the particular social group

13 must be defined with sufficient particularity. Matter of A14 M-E & J-G-U-, 24 I. & N. Dec. at 76. 

15 Riano’s sole argument challenging the agency’s

16 determination that he failed to demonstrate that the threats

17 he received were on account of his membership in a

18 particular social group is his assertion that “wealthy

19 landowner” is sufficiently distinguishable from “wealthy,” a

20 characteristic that was found not to define a particular

21 social group in Ucelo-Gomez. In Ucelo-Gomez, 509 F.3d at

22 72, we found reasonable the BIA’s precedential decision in

23 Matter of A-M-E & J-G-U-, concluding that “wealthy
6

1 Guatemalans” did not constitute a particular social group

2 because “[t]he characteristic of wealth or affluence is

3 simply too subjective, inchoate, and variable to provide the

4 sole basis for membership in a particular social group.” 

5 Matter of A-M-E & J-G-U-, 24 I. & N. Dec. at 76; see also

6 id. at 73–74. Riano argues that his particular social group

7 of wealthy landowners in Colombia differs from the “wealthy

8 Guatemalan” social group in Ucelo-Gomez because it includes

9 land ownership in addition to wealth as a characteristic. 

10 However, simply because Riano’s defined social group differs

11 from the social group rejected in another case does not

12 automatically lead to the conclusion that he demonstrated

13 the social visibility or particularity required to satisfy

14 the particular social group requirement. See Matter of A-M15 E & J-G-U-, 24 I. & N. Dec. at 74 (noting that “[w]hether a

16 proposed group has a shared characteristic with the

17 requisite ‘social visibility’ must be considered in the

18 context of the country of concern and the persecution

19 feared”); see also Ucelo-Gomez, 509 F.3d at 72-74. Riano

20 does not cite any country conditions evidence in the record

21 demonstrating that FARC recognizes and targets landowners as

22 a group as opposed to targeting those with money in an
 In his reply brief, Riano cites extra-record 1

evidence that he contends demonstrates that FARC targets

wealthy landowners. However, because we must “decide the

petition only on the administrative record on which the

order of removal is based,” 8 U.S.C. § 1252(b)(4)(A), we

will not consider Riano’s extra-record evidence. Nor

will we remand to the agency for it to consider such

evidence. See Xiao Xing Ni v. Gonzales, 494 F.3d 260,

269 (2d Cir. 2007).

7

1 effort to expand their coffers. Moreover, the 2005 U.S. 1

2 Department of State Country Report on Human Rights Practices

3 in Colombia (“2005 Country Report”), which is included in

4 the record, does not indicate that FARC specifically targets

5 individuals on account of their ownership of land. 

6 Therefore, the agency reasonably found that Riano failed to

7 demonstrate that “wealthy landowners” was a sufficiently

8 cognizable group or that, even if it was, he was targeted on

9 account of his membership in that group. See Matter of A-M10 E & J-G-U-, 24 I. & N. Dec. at 76. 

11 Accordingly, because the agency reasonably determined

12 that Riano failed to demonstrate a nexus between any harm he

13 suffered or continued to fear and a protected ground, the

14 agency reasonably denied his application for withholding of

15 removal. See 8 C.F.R. § 1208.16(b)(1). 

16 The agency also did not err in denying Riano’s

17 application for CAT relief because he failed to demonstrate
8

1 that FARC would likely torture him with the acquiescence of

2 the Colombian government. The agency’s regulations define

3 torture, in pertinent part, “as any act by which severe pain

4 or suffering . . . [for certain purposes] is inflicted by or

5 at the instigation of or with the consent or acquiescence of

6 a public official or other person acting in an official

7 capacity.” 8 C.F.R. § 1208.18(a)(1). We have held that

8 “acquiescence . . . requires only that government officials

9 know of or remain willfully blind to an act and thereafter

10 breach their legal responsibility to prevent it.” Khouzam

11 v. Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004). As the

12 government notes, the 2005 Country Report in the record

13 indicates that the Colombian government has engaged in a

14 long struggle with FARC and that conditions in Colombia have

15 improved. Moreover, Riano testified that he had not

16 reported FARC’s threats to the police. See 8 C.F.R. §

17 1208.18(a)(7) (“Acquiescence of a public official requires

18 that the public official prior to the activity constituting

19 torture, have awareness of such activity and thereafter

20 breach his or her legal responsibility to intervene to

21 prevent such activity.”). Nor does Riano refer to any

22 evidence in the record demonstrating that the government of

23 Colombia would likely acquiesce in FARC’s threats or
9

1 torture. Accordingly, we find that the agency reasonably

2 denied his application for CAT relief. See id. 

3 For the foregoing reasons, the petition for review is

4 DISMISSED in part and DENIED in part. As we have completed

5 our review, any stay of removal that the Court previously

6 granted in this petition is VACATED, and any pending motion

7 for a stay of removal in this petition is DISMISSED as moot.

8 Any pending request for oral argument in this petition is

9 DENIED in accordance with Federal Rule of Appellate

10 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

14 By:___________________________