16-1284 

Jacobo-Melendres v. Sessions 

BIA 

Straus, IJ 

A205 412 174

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 TO 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 for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

17th 4 day of October , two thousand seventeen. 

5 

6 PRESENT: 

7 JOSÉ A. CABRANES,

8 DENNY CHIN, 

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 GILDA JACOBO-MELENDRES, 

14 Petitioner, 

15 

16 v. 16-1284 

17 NAC 

18 JEFFERSON B. SESSIONS III, 

19 UNITED STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Jon E. Jessen, Stamford, CT. 

24 

25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

26 Attorney General; Keith I. McManus, 

27 Assistant Director; Jessica E. 

28 Burns, Senior Litigation Counsel, 

29 Office of Immigration Litigation, 

30 United States Department of Justice, 

31 Washington, DC. 
2 

1 UPON DUE CONSIDERATION of this petition for review of a 

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED in part and GRANTED in part. 

5 Petitioner Gilda Jacobo-Melendres, a native and citizen of 

6 Guatemala, seeks review of a March 24, 2016 decision of the BIA 

7 affirming a September 29, 2014 decision of an Immigration Judge 

8 (“IJ”) denying asylum, withholding of removal, and relief under 

9 the Convention Against Torture (“CAT”). In re Gilda 

10 Jacobo-Melendres, No. A205 412 174 (B.I.A. Mar. 24, 2016), aff’g

11 No. A205 412 174 (Immig. Ct. Hartford Sept. 29, 2014). We 

12 assume the parties’ familiarity with the underlying facts and 

13 procedural history in this case. 

14 We have reviewed the decision of the IJ as supplemented by 

15 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

16 2005). The applicable standards of review are well 

17 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 

18 Holder, 562 F.3d 510, 513 (2d Cir. 2009). The agency did not 

19 err in finding that Jacobo-Melendres failed to satisfy her 

20 burden of proof for asylum and withholding of removal, but it 

21 did err by failing to fully consider evidence material to her 

22 CAT claim. 
3 

1 Asylum and Withholding of Removal 

2 In order to demonstrate eligibility for asylum and 

3 withholding of removal, “the applicant must establish that 

4 race, religion, nationality, membership in a particular social 

5 group, or political opinion was or will be at least one central 

6 reason for persecuting the applicant.” 8 U.S.C. 

7 § 1158(b)(1)(B)(i); see 8 U.S.C. § 1231(b)(3)(A); Matter of 

8 C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010). To constitute 

9 a particular social group, a group must be: “(1) composed of 

10 members who share a common immutable characteristic, (2) 

11 defined with particularity, and (3) socially distinct within 

12 the society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 

13 227, 237 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey, 509 

14 F.3d 70, 72-74 (2d Cir. 2007)(per curiam). The agency did not 

15 err in finding that Jacobo-Melendres’s proposed social group 

16 of “unmarried Guatemalan young women who refuse to be the 

17 victims of gang stalking and harassment and to enter into a 

18 forced relationship with gang members” was not cognizable. 

19 Pet’r’s Br., Addendum at 3. 

20 Jacobo-Melendres failed to demonstrate that her proposed 

21 group was socially distinct in Guatemalan society. The country 

22 conditions evidence discusses widespread violence against 
4 

1 women in Guatemala, but it does not mention that unmarried women 

2 who refuse the advances of gang members are perceived as a 

3 distinct social group in society or are at greater risk than 

4 anyone who refuses to comply with a gang member’s criminal 

5 demands. See Ucelo-Gomez, 509 F.3d at 73 (“When the harm 

6 visited upon members of a group is attributable to the 

7 incentives presented to ordinary criminals rather than to 

8 persecution, the scales are tipped away from considering those 

9 people a ‘particular social group’ within the meaning of the 

10 INA.”); Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75 (BIA 

11 2007) (holding that the group of “wealthy Guatemalans” failed 

12 the social distinction requirement because it would not be 

13 recognized as a group at a greater risk of crime, extortion, 

14 or robbery). Moreover, Jacobo-Melendres testified that she 

15 was harassed, stalked, and attacked because a gang member was 

16 interested in having a relationship with her, but she did not 

17 assert that he or anyone else targeted her based on her 

18 membership in a group of similarly situated individuals who had 

19 refused the advances of gang members. See In re M-E-V-G-, 26 

20 I. & N. Dec. at 232 (“[A] ‘particular social group’ cannot be 

21 defined exclusively by the claimed persecution, . . . it must 

22 be ‘recognizable’ as a discrete group by others in the society, 
5 

1 and . . . it must have well-defined boundaries.”). 

2 Nor did Jacobo-Melendres establish that she was targeted 

3 on account of an imputed anti-gang political opinion. To 

4 demonstrate that persecution or a well-founded fear of 

5 persecution is on account of an applicant’s political opinion, 

6 the applicant must “show, through direct or circumstantial 

7 evidence, that the persecutor’s motive to persecute arises from 

8 the applicant’s political belief,” rather than merely by the 

9 persecutor’s opinion. Yueqing Zhang v. Gonzales, 426 F.3d 540, 

10 545 (2d Cir. 2005) (emphasis added). The persecution may be 

11 on account of an opinion imputed to the applicant by the 

12 persecutor, regardless of whether or not this imputation is 

13 accurate. See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 

14 2005). Jacobo-Melendres did not assert a political opinion 

15 claim in her asylum application, and she testified that the gang 

16 member targeted her based solely on his interest in having a 

17 relationship with her. Without any direct or circumstantial 

18 evidence to support a claim that she was targeted or would be 

19 targeted her on account of her political opinion, imputed or 

20 otherwise, the BIA did not err in finding that she failed to 

21 establish her eligibility for asylum or withholding of removal 

22 on that ground. See Yueqing Zhang, 426 F.3d at 545. 
6 

1 Accordingly, because Jacobo-Melendres failed to establish 

2 that her past harm or fear of future harm were on account of 

3 a protected ground as required for asylum and withholding of 

4 removal, we deny the petition for review to this extent. See

5 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). 

6 Convention Against Torture 

7 To receive withholding or deferral of removal under the 

8 CAT, an applicant must “establish that it is more likely than 

9 not that he or she would be tortured if removed to the proposed 

10 country of removal.” 8 C.F.R. § 1208.16(c)(2). Unlike asylum 

11 and withholding of removal, CAT relief does not require a nexus 

12 to any ground. See id. “Torture is defined as any act by which 

13 severe pain or suffering, whether physical or mental, is 

14 intentionally inflicted on a person . . . by or . . . with the 

15 consent or acquiescence of a public official or other person 

16 acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1); see

17 Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir. 2007); 

18 Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) 

19 (“[T]orture requires only that government officials know of or 

20 remain willfully blind to an act and thereafter breach their 

21 legal responsibility to prevent it.”). 

22 The agency provided insufficient analysis for its 
7 

1 conclusion that Jacobo-Melendres failed to demonstrate a 

2 likelihood of torture or that Guatemalan officials would 

3 acquiesce in her torture. See Poradisova v. Gonzales, 420 F.3d 

4 70, 77 (2d Cir. 2005) (explaining that “we require a certain 

5 minimum level of analysis from the IJ and BIA opinions . . ., 

6 and indeed must require such if judicial review is to be 

7 meaningful”). In assessing whether an applicant has satisfied 

8 her burden of proof, the agency must consider all evidence 

9 relevant to the possibility of future torture, including 

10 evidence of past torture, “[e]vidence that the applicant could 

11 relocate to a part of the country of removal where . . . she 

12 is not likely to be tortured, . . . [e]vidence of gross, flagrant 

13 or mass violations of human rights within the country of 

14 removal,” and other relevant information on country conditions. 

15 8 C.F.R. § 1208.16(c)(3). 

16 In the context of denying CAT relief, the agency failed to 

17 analyze any of the material evidence. That evidence included 

18 the following: Jacobo-Melendres’s testimony that a gang member 

19 in Guatemala stalked and harassed her almost daily for four 

20 months and attempted to kidnap her on one occasion in 2012; her 

21 testimony that the gang member continues to call her cell phone 

22 (which she left with her mother in Guatemala); her testimony 
8 

1 that she did not trust the police to help her; letters from her 

2 mother, sister, and sister’s father-in-law corroborating her 

3 claim; and country reports reflecting that rape, sexual 

4 offenses, and femicide are serious problems in Guatemala and 

5 that impunity for the perpetrators of such crimes remains 

6 extremely high because police are not equipped to investigate 

7 or assist victims. Given the agency’s failure to explain its 

8 CAT ruling or analyze any of this evidence, we grant the petition 

9 to this extent and remand for further consideration of the CAT 

10 claim. See 8 C.F.R. § 1208.16(c); see also Poradisova, 420 

11 F.3d at 77. 

12 For the foregoing reasons, the petition for review is 

13 DENIED in part and GRANTED in part and REMANDED for further 

14 proceedings consistent with this order. As we have completed 

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

16 granted in this petition is VACATED, and any pending motion for 

17 a stay of removal in this petition is DISMISSED as moot. Any 

18 pending request for oral argument in this petition is DENIED 

19 in accordance with Federal Rule of Appellate Procedure 

20 34(a)(2), and Second Circuit Local Rule 34.1(b). 

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk