20

- 1447 Lopez

- Lopez v. Garland BIA Brennan , IJ A 208 293 749 

### 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 FED**  **ERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION**  **“ SUMMARY ORDER**  **” ). A**  **PARTY CITING 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** 1 **for the Second Circuit, he**  **ld at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,**  3 **on the 9**  **th d**  **a y of**  **November , two thousand**  **twenty**
**- two.**  4 5 **PRESENT:** 6 **RAYMOND J. LOHIER, JR.,** 7 **STEVEN J. MENASHI,** 8 **BETH ROBINSON,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **GLORIA LOPEZ**

**- LOPEZ**  **,** 13 **Petitioner ,**  14 15
**v. 20** 

**- 1447**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Reuben S. Kerben , Kew Gardens , 23 NY

. 24 25 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 26 Attorney General ; Margaret Perry , 27 Senior Litigation Counsel ; Craig 28 W. Kuhn , Trial Attorney, Office of 292 Immigration Litigation, United 1 States Department of Justice, 2 Washington, D C. 3
UPON DUE CONSIDERATION of this petition for review of a 4
Board of Immigration Appeals (“BIA”) decision, it is hereby 5
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 6

is DENIED

. 7

Petitioner Gloria Lopez

- Lopez , a native and citizen of 8

El Salvador , seeks review of a n April 2, 2020 decision of the 9

BIA affirming a July 17, 2018 decision of an Immigration Judge 10

(“IJ”) that denied her application for asylum, withholding of 11

removal, and r elief under the Convention Against Torture 12

(“CAT”)

. In re Gloria Lopez

- Lopez , No. A 208 293 749 (B.I.A. 13
Apr. 2, 2020 ), aff’g No. A 208 293 749 (Immig. Ct. N.Y. City 14

Jul y 17, 2018 ). We assume the parties’ familiarity with the 15
underlying facts and procedural history. 16

We have review ed the IJ’s decision as modified by the 17
BIA and consider only th e grounds for the IJ’s decision that 18

the BIA relied on . We therefore do not address the IJ’s 19
adverse credibility determination. 1 See Xue Hong Yang v. 20

1 The BIA stated that it “affirm[ed] the [IJ’s] decision for the reasons set forth by the [IJ],” but it did not explicitly address credibility

. Although it is unclear if the BIA intended to rely on the adverse credibility determination , the other grounds it specifically discussed were sufficient3 U.S. Dep’t of Just

. , 426 F.3d 520, 522 (2d Cir. 2005). The 1
applicable standards of review are well established. See 2

Paloka v. Holder , 762 F.3d 191, 195 (2d Cir. 2014) (reviewing 3
factual findings for substantial evidence and questions of 4
law and application of law to fact de novo). 5
The Government argues that we should dismiss the petition 6
because Lopez

- Lopez’s brief does not satisfy the requirements 7

of Federal R ule of App ellate P rocedure 28(a). We agree that 8

Lopez

- Lopez’s counsel did not fully comply with the rule, but 9

the brief otherwise raises identifiable arguments for review , 10

and we therefore decline to dismiss on that basis

. See Sioson 11
v. Knights of Columbus , 303 F.3d 458, 459

– 60 (2d Cir. 2002) 12
(noting that the absence of a statement of facts may be 13
“overlooked” in favor of ruling on the merits); see also New 14

York v. Green , 420 F.3d 99, 104 (2d Cir. 2005) (“[W]e have 15
expressed a strong preference for resolving disputes on the 16

merits.” ) (quotation marks omitted). 17
An asylum applicant has the burden of establish ing either 18
past persecution or a well

- founded fear of persecution and 19

bases for the agency’s decision

. Accordingly , we decline to rely on the credibility ruling. See INS v. Bagamasbad , 429 U.S. 24, 25 (19 76) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).4 that “race, religion, nationality, membership in a particular 1
social group, or political opinion was or will be at least 2
one central reason for” the claimed persecution. 8 U.S.C. 3

§ 1158(b)(1)(B)(i) (asylum); see also 8 C.F.R. § 1208.13(b). 4
A past persecution claim can be based on harm other than 5
“threats to life or freedom . . . including non

- life

6

threa tening violence and physical abuse.” Ivanishvili v. 7
U.S. Dep’t of Just

. , 433 F.3d 332, 341 (2d Cir. 2006) 8
(quotation marks, brackets, and citation omitted); see also 9

Beskovic v. Gonzales , 467 F.3d 223, 226 n.3 (2d Cir. 2006). 10
However, the harm must be sufficiently severe, rising above 11

“mere harassment.” Ivanishvili , 433 F.3d at 341. 12
With these principles in mind, we conclude that 13

substantial evidence supports the agency’s determination that 14

Lopez

- Lopez did not demonstrate past persecution or a well

15

founded fear of future persecution on account of a protected 16
ground

. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b). 17

Lopez

- Lopez testified that she witnessed a gang killing 18

outside of he r home and then received threats from gang 19
members, first in 2012 and then again after returning to El 20

Salvador in 2015. She contends that th ese threats 21
constituted persecution based on her membership in a 22
particular social group

. To constitute a particular social 235 group, a group must be “(1) composed of members who share a 1
common immutable characteristic, (2) defined with 2
particularity, and (3) socially distinct within the society 3
in question.” Paloka , 762 F.3d at 19 6 (quoting Matt er of M

4

E

- V

- G

- , 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). “To be 5
socially distinct, a group . . . must be perceived as a group 6
by society.” Id. (quoting Matter of M

- E

- V

- G

- , 26 I. & N. 7

Dec. at 240). 8
The agency did not err in rejecting Lopez

- Lopez’s 9

propos ed particular social group of “young people who resist 10
becoming members of Mara” as lacking in particularity and 11

social distinction. See Gomez v. INS , 947 F.2d 660, 664 (2d 12
Cir. 1991) ( “ P ossession of broadly

- based characteristics such 13
as youth and gender will not by itself endow individuals with 14
membership in a particular group.” ); Matter of S

- E

- G

- , 24 I. 15
& N. Dec. 579, 584

- 87 (B.I.A. 2008) ( proposed groups of 16

“ Salvadoran youths who have resisted gang recruitment” are 17
neither particular nor distinct)

. Lopez

- Lopez did not 18
establish shared traits that would identify members of her 19
group to Salvadoran society or produce evidence suggesting 20

that Salvadoran society r egard s youth resisting gang 21
membership as a distinct social group. See Paloka , 762 F.3d 22

at 196 ( “Persecutory conduct aimed at a social group cannot 236 alone define the group, which must exist independently of the 1
persecution.” ) (quotation marks omitted). 2
Nor is there evidence that the gang targeted Lopez

- Lopez 3

based on either her membership in the group or a political 4
opinion of hers , as opposed to its general criminal motives. 5

See Ucelo

- Gomez v. Mukasey , 509 F.3d 70, 73 (2d Cir. 2007) 6

( “When the harm visited upon members of a group is 7
attributable to the incentives presented to ordinary 8
criminals rather than to persecution, the scales are tipped 9
away from considering those people a ‘particular social 10
group’ within the meaning of the INA. ”); see also Hernandez

11

Chacon v. Barr , 948 F.3d 94, 101

– 02 (2d Cir. 2020) (upholding 12
BIA’s denial of social group claim because evidence did not 13
show that Salvadoran society perceived women who rejected 14
advances of gang members as being at greater risk tha n anyone 15
else who did not “comply with a gang member’s demands”). 16

For the same reasons, we conclude that Lopez

- Lopez has 17

failed to establish her entitlement to withholding of 18

removal , which involves a higher burden of proof than does 19
entitlement to asylum. See Ramsameachire v. Ashcroft , 357 20

F.3d 169 ,178 (2004) (recognizing that because the withholding 21
of removal analysis involves a higher burden of proof, an 22
alien who fails to establish entitlement to asylum 237 necessarily fails to estab lish entitlement to withholding of 1

removal). 2

We do not reach Lopez

- Lopez’s CAT claim because she does 3

not advance any arguments in support of it in her brief

. See 4
Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 5
2005) (deeming CAT claim abandoned where petitioner failed to 6
address it in the opening brief). 7
For the foregoing reasons, the petition for review is 8

DENIED

. All pending motions and applications are DENIED and 9

stays VACATED. 10

11 FOR THE COURT: 12 C atherine O = Hagan Wolfe, Clerk of Court 13 14