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.** 

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of New** 3 **York, on the 26 th** **day of April, two thousand twelve.** 4
5
**PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges

**.** 10

**_____________________________________** 11
12 **WILLIAM WESLEY OLIVA-FLORES,** 13 **JIMMY ARIEL FLORES,** 14 Petitioners**,** 15
16 **v. 10-5090-ag** 17
**NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent

**.** 21

**_____________________________________** 22
23 **FOR PETITIONERS: Howard L. Baker, Wilens & Baker, P.C.,** 24 **New York, New York.** 25
26 **FOR RESPONDENT: Tony West, Assistant Attorney General;** 27 **Paul Fiorino, Senior Litigation** 282 **Counsel; Katherine A. Smith, Trial** 1 **Attorney, Office of Immigration** 2 **Litigation, United States Department of** 3 **Justice, Washington, D.C.** 4
5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED, that the petition for review 8 is DENIED. 9 10 Petitioners William Wesley Oliva-Flores and Jimmy Ariel 11 Flores, natives and citizens of Guatemala, seek review of a 12 November 23, 2010, decision of the BIA affirming the September 13 22, 2008, decision of Immigration Judge (“IJ”) Brigitte 14 LaForest denying their applications for asylum, withholding of 15 removal and relief under the Convention Against Torture 16 (“CAT”). In re William Wesley Oliva-Flores, Jimmy Ariel 17 Flores, Nos. A097 831 363/364 (B.I.A. Nov. 23, 2010), aff’g 18 Nos. A097 831 363/364 (Immig. Ct. N.Y. City Sept. 22, 2008). 19 We assume the parties’ familiarity with the underlying facts 20 and procedural history of the case. 21 22 Under the circumstances of this case, we have considered 23 both the IJ’s decision and the BIA’s decision “for the sake of 24 completeness.” See Lecaj v. Holder, 616 F.3d 111, 114 (2d 25 Cir. 2010) (internal quotation marks omitted). The applicable 26 standards of review are well-established. See 8 U.S.C. 27 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 28 162, 165-66 (2d Cir. 2008). 29 30 Petitioners argue that the agency erroneously found that 31 they were not members of a particular social group comprised 32 of young Guatemalan men resisting gang recruitment. The BIA 33 has long interpreted the term “social group” to mean “a group 34 of persons all of whom share a common, immutable 35 characteristic.” Matter of Acosta , 19 I.&N. Dec. 211, 233 36 (BIA 1985). An “immutable characteristic” is one that members 37 of the group “either cannot change, or should not be required 38 to change because it is fundamental to their individual 39 identities or consciences.” Id. A cognizable social group 40 must: (1) exhibit a shared characteristic that is socially 41 visible to others in the community; and (2) be defined with 42 sufficient particularity. See Matter of A-M-E & J-G-U- , 24 43 I.&N. Dec. 69, 74-76 (BIA 2007), aff’d by Ucelo-Gomez v. 443 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). The “social 1 visibility” test requires that the shared traits that 2 characterize the social group be sufficient to identify 3 members of that group to others in the community, particularly 4 to potential persecutors. See Matter of C-A- , 23 I.&N. Dec. 5 951, 960-61 (BIA 2006); see also Matter of A-M-E & J-G-U- , 24 6 I.&N. Dec. at 74. “[B]roadly-based characteristics such as 7 youth and gender” will not by themselves suffice to define a 8 particular social group. Gomez v. INS, 947 F.2d 660, 664 (2d 9 Cir. 1991). Rather, these shared traits must be “recognizable 10 and discrete.” Further, a social group cannot be defined 11 exclusively by the fact that its members have been subjected 12 to harm. Matter of A-M-E & J-G-U- , 24 I.&N. Dec. at 74. 13 14 In this case, the agency reasonably relied on its 15 decision in Matter of S-E-G- , 24 I.&N. Dec. 579, 582-88 (BIA 16 2008), to find that Petitioners’ proposed social group – young 17 Guatemalan men who have resisted gang recruitment – lacks the 18 particularity and social visibility required for it to 19 constitute a particular social group. As in Matter of S-E-G-

, 20 the social group is amorphous and fails the particularity 21 requirement because young Guatemalan men “make up a 22 potentially large and diffuse segment of society.” Id. at 23 585. Further, the Petitioners offered “no evidence . . . to 24 show that gang members limit recruitment efforts to male 25 children who fit the . . . description, or do so in order to 26 punish them for these characteristics.” Id. at 585. 27 Similarly, the Petitioners offered no evidence that their 28 proposed social group of young Guatemalan men who resist gang 29 recruitment was socially visible, as there was no evidence in 30 the record that they were in any different situation than any 31 other victim of gang violence in Guatemala. Supporting 32 documents provided by the Petitioners reflect, in fact, that 33 gangs in Guatemala do not limit their recruitment efforts to 34 young men; rather they have attempted to recruit children as 35 young as 13, as well as women. The Petitioners’ testimony 36 described a state of general lawlessness in Guatemala where 37 everyone is subject to harassment and violence from the gang 38 members. 39 40 Petitioners argue that the agency’s application of the 41 particularity and social visibility elements in Matter of S-E42 G- was too rigid and did not comport with Matter of Acosta

. 43 While the BIA’s decision in Matter of S-E-G-is not binding on 444 this Court, its analysis is consistent with our case law on 1 similar issues. See Ucelo-Gomez , 509 F.3d at 73 (giving 2 Chevron deference to BIA decision requiring an applicant to 3 demonstrate social visibility and particularity in order to 4 show that he was persecuted on account of his membership in a 5 particular group). Because Petitioners did not present the 6 agency with any evidence to compel the conclusion that 7 Guatemalan men who resist gangs are a socially visible segment 8 of the population, the agency did not err in concluding that 9 the group does not constitute a “particular social group.” 10 See Matter of S-E-G-

, 24 I. & N. Dec. at 582-88;see also 11 Ucelo-Gomez , 509 F.3d at 73. 12 13 Petitioners argue that they are also members of a 14 particular social group comprised of “young males from lower 15 economic classes who resist gang membership.” Petitioners, 16 however, did not raise this argument with the agency, and we 17 decline to consider it. See Zhong v. U.S. Dep’t of Justice

, 18 480 F.3d 104, 124 (2d Cir. 2007). 19 20 Further, the agency reasonably concluded that the 21 Petitioners were not subject to persecution on the basis of 22 any actual or imputed political opinion. In order to 23 demonstrate that persecution (past or prospective) bears a 24 nexus to an applicant’s political opinion, the applicant must 25 show that the persecutor was motivated by his or her 26 perception of the applicant’sopinion, rather than merely by 27 his or her ownopinion. See Zhang v. Gonzales , 426 F.3d 540, 28 545 (2d Cir. 2005). It is insufficient to demonstrate that a 29 persecutor acted or is likely to act from “a generalized 30 political motive.” INS v. Elias-Zacarias , 502 U.S. 478, 482 31 (1992) (internal quotation marks and citations omitted). 32 Here, nothing in the record compels the conclusion that the 33 gang members targeted the Petitioners on the basis of any 34 actual or imputed political opinion. The agency did not err 35 in finding that Petitioners failed to demonstrate the nexus to 36 a protected ground required to establish their eligibility for 37 asylum and withholding of removal. See 8 U.S.C. 38 § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); see also 39 Elias-Zacarias , 502 U.S. at 482-83. 40 41 Finally, the agency reasonably concluded that Petitioners 42 failed to demonstrate a likelihood of torture by or with the 43 acquiescence of the government of El Salvador. The agency’s 445 regulations define torture, in pertinent part, “as any act by 1 which severe pain or suffering . . . is intentionally 2 inflicted . . . [for certain purposes] when such pain or 3 suffering is inflicted by or at the acquiescence of a public 4 official or other person acting in an official capacity.” 5 8 C.F.R. § 1208.18(a)(1). We have held that “acquiescence . . 6 . requires only that government officials know of or remain 7 willfully blind to an act and thereafter breach their legal 8 responsibility to prevent it.” Khouzam v. Ashcroft , 361 F.3d 9 161, 170-71 (2d Cir. 2004). Petitioners argue that 10 substantial evidence in the record demonstrates that the 11 Guatemalan government’s failure to control the criminal gangs 12 constitutes a “pattern or practice of persecution” such that 13 they are entitled to CAT relief. The Petitioners’ argument 14 conflates the standard for CAT relief with the standard for 15 asylum and withholding of removal. Further, although there 16 was evidence in the record suggesting that the government of 17 Guatemala is not entirely successful in controlling the gangs, 18 Petitioners offered no evidence that this failure rises to 19 acquiescence in the gangs’ activities. Accordingly, the 20 agency did not err in determining that Petitioners failed to 21 demonstrate they would likely be tortured with the 22 acquiescence of Guatemalan government officials. See Khouzam

, 23 361 F.3d at 170-71. 24 25 For the foregoing reasons, the petition for review is 26 DENIED. As we have completed our review, any stay of removal 27 that the Court previously granted in this petition is VACATED, 28 and any pending motion for a stay of removal in this petition 29 is DISMISSED as moot. Any pending request for oral argument in 30 this petition is DENIED in accordance with Federal Rule of 31 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 32 34(b). 33 34 FOR THE COURT: 35 Catherine O’Hagan Wolfe, Clerk 36 37 38