NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3170

___________

NOELLY NICOLAS,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, 

Respondent

____________________________________

On Petition for Review of an Order 

of the Board of Immigration Appeals

Agency No. A97 536 795

Immigration Judge: Mirlande Tadal

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 5, 2010

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(Opinion filed: May 07, 2010)

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OPINION

___________

PER CURIAM

Noelly Nicolas petitions for review of an order of the Board of Immigration

Appeals (“BIA”), which dismissed her appeal from an Immigration Judge’s (“IJ”) final

removal order. We will deny the petition for review.
 She was eventually found removable only on the latter ground. 1

2

I.

Nicolas is a native and citizen of Haiti. She came to the United States in October

2007 with a transit visa, but she did not have a ticket or money to go on to her intended

destination, Brazil. When questioned, she asserted that she had a fear of returning to

Haiti, and she was placed in immigration proceedings. She was charged with being

removable for seeking entry through fraud or misrepresenting a material fact, and for not

being in possession of a valid immigrant visa. She applied for asylum, withholding of 1

removal and protection under the Convention Against Torture (“CAT”).

Nicolas sought relief based on an incident that occurred in October 2005 when she

was sixteen years old. She was walking to a friend’s home to spend the weekend, when

she was abducted by five armed, masked men, and was forced into a car. They

blindfolded her and tied her hands together and took her to an unknown location where

she was kept for two and a half days. She was pushed, kicked and beaten because she

refused to do what they wanted. They beat her with lamps, arms and feet, and burned her

with a plastic object on her arm. She still retains a scar from the burn. On the third day,

they put her back in the car, drove for a little time, and pushed her out of the car. They

told her if she told anyone they would find her and harm her again. She walked home and

told her mother that she was burned when she was cooking with her friend. Her mother

took her to a hospital where she was treated and released. She lied to her mother because
3

she did not want her mother to report the incident to the police or share the information

with other people. She did not report the incident to the police, because she believed the

police are involved in kidnapping.

Nicolas testified that she believed she was kidnapped because she was “a

defenseless little girl,” and because some people “are frustrated that . . . they cannot enjoy

the opportunity that some people do.” A.R. 122-23. She was also aware of two other

young female students who had been kidnapped. A.R. 123-24. Her asylum application

noted that she sought relief as a member of a particular social group; as a “student[] and

young girl[].” A.R. 229.

The IJ found that Nicolas testified credibly, but denied relief because she had “not

established that she was abducted on account of at least one of the central reasons

enumerated in the Act.” A.R. 66. The IJ found that Nicolas had been a victim of crime,

and that “there are widespread kidnappings of citizen [sic] of all societal strata by armed

and organized criminal elements in Haiti . . . and one particular group is not targeted over

another group.” A.R. 68. The IJ therefore denied Nicolas asylum and withholding of

removal. The IJ also found that Nicolas had failed to show that she had been tortured in

the past or would likely suffer torture in the future. A.R. 70.

The BIA agreed that the record did not support a conclusion that kidnappings in

Haiti focused on any particular group, “let alone a particular social group made up of

young female students.” A.R. 4. The BIA affirmed the IJ’s finding “that the respondent
4

did not prove that her membership in a particular social group was or will be at least one

central reason for the persecution.” Id. The BIA also found her ineligible for relief under

the CAT, as she had “not shown that anyone in the Haitian government would

affirmatively consent or acquiesce to her torture . . . .” Id. Nicolas filed a timely petition

for review.

II.

We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where,

as here, the BIA adopted some of the findings of the IJ and made additional findings, we

review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney General, 

527 F.3d 330, 339 (3d Cir. 2008). To be granted asylum as a refugee, an applicant must

establish that she is unable or unwilling to return to her homeland “because of persecution

or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). 

To be entitled to withholding of removal, an applicant must prove that her “life or

freedom would be threatened in that country because of [her] race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). 

Thus, to be eligible for asylum or withholding of removal, it is not enough for Nicolas to

show that she suffered persecution in the past; she would also need to show “that the

persecution was on account of [her] . . . membership in a particular social group . . . .” 

Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003). Pursuant to the REAL ID Act of
5

2005, the “applicant must establish that . . . membership in a particular social group . . .

was or will be at least one central reason for persecuting the applicant.” 8 U.S.C.

§ 1158(b)(1)(B)(i) [INA § 208(b)(1)(B)(i)]. “[A]sylum may not be granted if a protected

ground is only an incidental, tangential, or superficial reason for persecution of an asylum

applicant.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009) (internal

quotation and citation omitted).

As noted, Nicolas argued that she was and would be persecuted because of her

membership in the particular social group of young, female students. In Matter of Acosta,

19 I. & N. Dec. 211, 233 (1985), the BIA suggested that “sex” might be an innate

characteristic that could link the members of a “particular social group.” But

“[p]ossession of broadly-based characteristics such as youth and gender will not by itself

endow individuals with membership in a particular group.” Lukwago, 329 F.3d at 172. 

Further, it is not clear that Nicolas’s attackers were motivated by her gender, her youth, or

her status as a student. See Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10 Cir.

th

2005) (focus should not be on whether gender can constitute social group, but on whether

“members of that group are sufficiently likely to be persecuted that one could say that

they are persecuted ‘on account of’ their membership”); see also Gomez-Zuluaga, 527

F.3d at 345 n.10 (“It is not necessary for us to determine whether this is a cognizable

‘particular social group’ under the statute, because there is substantial evidence in the

record to conclude that [the perpetrator] was not motivated by Petitioner’s membership in
6

a particular social group[.]). Indeed the evidence in the record showed that kidnappings

were widespread in Haiti and not limited to young, female students. 

Because substantial evidence supports the BIA’s conclusion that Nicolas did not

meet her burden of showing that she suffered persecution on account of a protected

ground, we may not grant the petition with regards to Nicolas’s claims for asylum and

withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003)

(alien who is unable to establish refugee status for the purpose of asylum will be unable to

establish right to withholding of removal). 

III.

The applicant for relief under the CAT bears the burden of proving that it is more

likely than not that she would be tortured if removed to the proposed country of removal.

8 C.F.R. § 1208.16(c)(2); see also Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.

2005). For an act to constitute torture under the CAT, it must be: (1) an act causing

severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed

purpose; (4) by or at the instigation of or with the consent or acquiescence of a public

official who has custody or control of the victim; and (5) not arising from lawful

sanctions. Id. at 213; see also 8 C.F.R. § 1208.18(a)(1). The requirement that the torture

be intentionally inflicted requires a showing that the “prospective torturer will have the

goal or purpose of inflicting severe pain or suffering” on the petitioner. Pierre v. Att'y

Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc). The “acquiescence of a public official”
7

requirement does not require actual knowledge of torturous conduct, but can be satisfied

by a showing that the government is willfully blind to the conduct in question or has

breached its legal responsibility to prevent it. Silva-Rengifo v. Att’y Gen., 473 F.3d 58,

70 (3d Cir. 2007); Gomez- Zuluaga, 527 F.3d at 350. 

We agree with the BIA that Nicolas failed to show that she is likely to be tortured

in Haiti. Although country reports indicate that kidnapping is widespread, there is no

indication that anyone will kidnap Nicolas with the “specific intent” to torture her. If

there is no evidence that the “prospective torturer will have the goal or purpose of

inflicting severe pain or suffering,” the specific intent requirement of CAT is not fulfilled. 

Pierre, 528 F.3d at 190. This showing is required even when the conditions in the country

of removal are such that removal is likely to result in harm to the petitioner. Id. at 191

(denying CAT relief where petitioner was likely to experience pain and suffering due to

poor conditions in Haitian prisons, but failed to show that Haitian officials had the

specific intent to inflict severe pain or suffering by placing him in detention upon

removal). It appears that Nicolas was the victim of a random criminal act, and was not

singled out for the specific purpose of being tortured. 

For the foregoing reasons, we will deny the petition for review.