10-5090-ag

Oliva-Flores v. Holder

BIA

LaForest, IJ

A097 831 363

A097 831 364

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 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

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

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

York, on the 26th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________

12

13 WILLIAM WESLEY OLIVA-FLORES,

14 JIMMY ARIEL FLORES, 

15 Petitioners, 

16

17 v. 10-5090-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23 

24 FOR PETITIONERS: Howard L. Baker, Wilens & Baker, P.C.,

25 New York, New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney General;

28 Paul Fiorino, Senior Litigation
2

1 Counsel; Katherine A. Smith, Trial

2 Attorney, Office of Immigration

3 Litigation, United States Department of

4 Justice, Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

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

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

9 is DENIED.

10

11 Petitioners William Wesley Oliva-Flores and Jimmy Ariel

12 Flores, natives and citizens of Guatemala, seek review of a

13 November 23, 2010, decision of the BIA affirming the September

14 22, 2008, decision of Immigration Judge (“IJ”) Brigitte

15 LaForest denying their applications for asylum, withholding of

16 removal and relief under the Convention Against Torture

17 (“CAT”). In re William Wesley Oliva-Flores, Jimmy Ariel

18 Flores, Nos. A097 831 363/364 (B.I.A. Nov. 23, 2010), aff’g

19 Nos. A097 831 363/364 (Immig. Ct. N.Y. City Sept. 22, 2008). 

20 We assume the parties’ familiarity with the underlying facts

21 and procedural history of the case.

22

23 Under the circumstances of this case, we have considered

24 both the IJ’s decision and the BIA’s decision “for the sake of

25 completeness.” See Lecaj v. Holder, 616 F.3d 111, 114 (2d

26 Cir. 2010) (internal quotation marks omitted). The applicable

27 standards of review are well-established. See 8 U.S.C.

28 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

29 162, 165-66 (2d Cir. 2008). 

30

31 Petitioners argue that the agency erroneously found that

32 they were not members of a particular social group comprised

33 of young Guatemalan men resisting gang recruitment. The BIA

34 has long interpreted the term “social group” to mean “a group

35 of persons all of whom share a common, immutable

36 characteristic.” Matter of Acosta, 19 I.&N. Dec. 211, 233

37 (BIA 1985). An “immutable characteristic” is one that members

38 of the group “either cannot change, or should not be required

39 to change because it is fundamental to their individual

40 identities or consciences.” Id. A cognizable social group

41 must: (1) exhibit a shared characteristic that is socially

42 visible to others in the community; and (2) be defined with

43 sufficient particularity. See Matter of A-M-E & J-G-U-, 24

44 I.&N. Dec. 69, 74-76 (BIA 2007), aff’d by Ucelo-Gomez v.
3

1 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). The “social

2 visibility” test requires that the shared traits that

3 characterize the social group be sufficient to identify

4 members of that group to others in the community, particularly

5 to potential persecutors. See Matter of C-A-, 23 I.&N. Dec.

6 951, 960-61 (BIA 2006); see also Matter of A-M-E & J-G-U-, 24

7 I.&N. Dec. at 74. “[B]roadly-based characteristics such as

8 youth and gender” will not by themselves suffice to define a

9 particular social group. Gomez v. INS, 947 F.2d 660, 664 (2d

10 Cir. 1991). Rather, these shared traits must be “recognizable

11 and discrete.” Further, a social group cannot be defined

12 exclusively by the fact that its members have been subjected

13 to harm. Matter of A-M-E & J-G-U-, 24 I.&N. Dec. at 74. 

14

15 In this case, the agency reasonably relied on its

16 decision in Matter of S-E-G-, 24 I.&N. Dec. 579, 582-88 (BIA

17 2008), to find that Petitioners’ proposed social group – young

18 Guatemalan men who have resisted gang recruitment – lacks the

19 particularity and social visibility required for it to

20 constitute a particular social group. As in Matter of S-E-G-,

21 the social group is amorphous and fails the particularity

22 requirement because young Guatemalan men “make up a

23 potentially large and diffuse segment of society.” Id. at

24 585. Further, the Petitioners offered “no evidence . . . to

25 show that gang members limit recruitment efforts to male

26 children who fit the . . . description, or do so in order to

27 punish them for these characteristics.” Id. at 585. 

28 Similarly, the Petitioners offered no evidence that their

29 proposed social group of young Guatemalan men who resist gang

30 recruitment was socially visible, as there was no evidence in

31 the record that they were in any different situation than any

32 other victim of gang violence in Guatemala. Supporting

33 documents provided by the Petitioners reflect, in fact, that

34 gangs in Guatemala do not limit their recruitment efforts to

35 young men; rather they have attempted to recruit children as

36 young as 13, as well as women. The Petitioners’ testimony

37 described a state of general lawlessness in Guatemala where

38 everyone is subject to harassment and violence from the gang

39 members. 

40

41 Petitioners argue that the agency’s application of the

42 particularity and social visibility elements in Matter of S-E43 G- was too rigid and did not comport with Matter of Acosta. 

44 While the BIA’s decision in Matter of S-E-G- is not binding on
4

1 this Court, its analysis is consistent with our case law on

2 similar issues. See Ucelo-Gomez, 509 F.3d at 73 (giving

3 Chevron deference to BIA decision requiring an applicant to

4 demonstrate social visibility and particularity in order to

5 show that he was persecuted on account of his membership in a

6 particular group). Because Petitioners did not present the

7 agency with any evidence to compel the conclusion that

8 Guatemalan men who resist gangs are a socially visible segment

9 of the population, the agency did not err in concluding that

10 the group does not constitute a “particular social group.” 

11 See Matter of S-E-G-, 24 I. & N. Dec. at 582-88; see also

12 Ucelo-Gomez, 509 F.3d at 73.

13

14 Petitioners argue that they are also members of a

15 particular social group comprised of “young males from lower

16 economic classes who resist gang membership.” Petitioners,

17 however, did not raise this argument with the agency, and we

18 decline to consider it. See Zhong v. U.S. Dep’t of Justice,

19 480 F.3d 104, 124 (2d Cir. 2007). 

20

21 Further, the agency reasonably concluded that the

22 Petitioners were not subject to persecution on the basis of

23 any actual or imputed political opinion. In order to

24 demonstrate that persecution (past or prospective) bears a

25 nexus to an applicant’s political opinion, the applicant must

26 show that the persecutor was motivated by his or her

27 perception of the applicant’s opinion, rather than merely by

28 his or her own opinion. See Zhang v. Gonzales, 426 F.3d 540,

29 545 (2d Cir. 2005). It is insufficient to demonstrate that a

30 persecutor acted or is likely to act from “a generalized

31 political motive.” INS v. Elias-Zacarias, 502 U.S. 478, 482

32 (1992) (internal quotation marks and citations omitted). 

33 Here, nothing in the record compels the conclusion that the

34 gang members targeted the Petitioners on the basis of any

35 actual or imputed political opinion. The agency did not err

36 in finding that Petitioners failed to demonstrate the nexus to

37 a protected ground required to establish their eligibility for

38 asylum and withholding of removal. See 8 U.S.C.

39 § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); see also

40 Elias-Zacarias, 502 U.S. at 482-83.

41

42 Finally, the agency reasonably concluded that Petitioners

43 failed to demonstrate a likelihood of torture by or with the

44 acquiescence of the government of El Salvador. The agency’s
5

1 regulations define torture, in pertinent part, “as any act by

2 which severe pain or suffering . . . is intentionally

3 inflicted . . . [for certain purposes] when such pain or

4 suffering is inflicted by or at the acquiescence of a public

5 official or other person acting in an official capacity.” 

6 8 C.F.R. § 1208.18(a)(1). We have held that “acquiescence . .

7 . requires only that government officials know of or remain

8 willfully blind to an act and thereafter breach their legal

9 responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d

10 161, 170-71 (2d Cir. 2004). Petitioners argue that

11 substantial evidence in the record demonstrates that the

12 Guatemalan government’s failure to control the criminal gangs

13 constitutes a “pattern or practice of persecution” such that

14 they are entitled to CAT relief. The Petitioners’ argument

15 conflates the standard for CAT relief with the standard for

16 asylum and withholding of removal. Further, although there

17 was evidence in the record suggesting that the government of

18 Guatemala is not entirely successful in controlling the gangs,

19 Petitioners offered no evidence that this failure rises to

20 acquiescence in the gangs’ activities. Accordingly, the

21 agency did not err in determining that Petitioners failed to

22 demonstrate they would likely be tortured with the

23 acquiescence of Guatemalan government officials. See Khouzam,

24 361 F.3d at 170-71. 

25

26 For the foregoing reasons, the petition for review is

27 DENIED. As we have completed our review, any stay of removal

28 that the Court previously granted in this petition is VACATED,

29 and any pending motion for a stay of removal in this petition

30 is DISMISSED as moot. Any pending request for oral argument in

31 this petition is DENIED in accordance with Federal Rule of

32 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

33 34(b).

34

35 FOR THE COURT: 

36 Catherine O’Hagan Wolfe, Clerk

37

38