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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **17 th** **day of October , two thousand seventeen.**  4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **GILDA JACOBO-MELENDRES,** 13 Petitioner **,** 14 15 **v. 16-1284** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Jon E. Jessen, Stamford, CT. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Keith I. McManus, 26 Assistant Director; Jessica E. 27 Burns, Senior Litigation Counsel, 28 Office of Immigration Litigation, 29 United States Department of Justice, 30 Washington, DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3 DENIED in part and GRANTED in part. 4 Petitioner Gilda Jacobo-Melendres, a native and citizen of 5 Guatemala, seeks review of a March 24, 2016 decision of the BIA 6 affirming a September 29, 2014 decision of an Immigration Judge 7 (“IJ”) denying asylum, withholding of removal, and relief under 8 the Convention Against Torture (“CAT”). In re Gilda 9 Jacobo-Melendres, No. A205 412 174 (B.I.A. Mar. 24, 2016), aff’g 10 No. A205 412 174 (Immig. Ct. Hartford Sept. 29, 2014). We 11 assume the parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 We have reviewed the decision of the IJ as supplemented by 14 the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 15 2005). The applicable standards of review are well 16 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 17 Holder , 562 F.3d 510, 513 (2d Cir. 2009). The agency did not 18 err in finding that Jacobo-Melendres failed to satisfy her 19 burden of proof for asylum and withholding of removal, but it 20 did err by failing to fully consider evidence material to her 21 CAT claim. 223 Asylum and Withholding of Removal 1 In order to demonstrate eligibility for asylum and 2 withholding of removal, “the applicant must establish that 3 race, religion, nationality, membership in a particular social 4 group, or political opinion was or will be at least one central 5 reason for persecuting the applicant.” 8 U.S.C. 6 § 1158(b)(1)(B)(i); see 8 U.S.C. § 1231(b)(3)(A); Matter of 7
C-T-L- , 25 I. & N. Dec. 341, 348 (B.I.A. 2010). To constitute 8 a particular social group, a group must be: “(1) composed of 9 members who share a common immutable characteristic, (2) 10 defined with particularity, and (3) socially distinct within 11 the society in question.” Matter of M-E-V-G- , 26 I. & N. Dec. 12 227, 237 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey , 509 13 F.3d 70, 72-74 (2d Cir. 2007)( per curiam ). The agency did not 14 err in finding that Jacobo-Melendres’s proposed social group 15 of “unmarried Guatemalan young women who refuse to be the 16 victims of gang stalking and harassment and to enter into a 17 forced relationship with gang members” was not cognizable. 18 Pet’r’s Br., Addendum at 3. 19 Jacobo-Melendres failed to demonstrate that her proposed 20

group was socially distinct in Guatemalan society. The country 21 conditions evidence discusses widespread violence against 224 women in Guatemala, but it does not mention that unmarried women 1 who refuse the advances of gang members are perceived as a 2 distinct social group in society or are at greater risk than 3 anyone who refuses to comply with a gang member’s criminal 4 demands. See Ucelo-Gomez , 509 F.3d at 73 (“When the harm 5 visited upon members of a group is attributable to the 6 incentives presented to ordinary criminals rather than to 7 persecution, the scales are tipped away from considering those 8 people a ‘particular social group’ within the meaning of the 9 INA.”); Matter of A-M-E & J-G-U- , 24 I. & N. Dec. 69, 74-75 (BIA 10 2007) (holding that the group of “wealthy Guatemalans” failed 11 the social distinction requirement because it would not be 12 recognized as a group at a greater risk of crime, extortion, 13 or robbery). Moreover, Jacobo-Melendres testified that she 14 was harassed, stalked, and attacked because a gang member was 15 interested in having a relationship with her, but she did not 16 assert that he or anyone else targeted her based on her 17 membership in a group of similarly situated individuals who had 18 refused the advances of gang members. See In re M-E-V-G- , 26 19 I. & N. Dec. at 232 (“[A] ‘particular social group’ cannot be 20 defined exclusively by the claimed persecution, . . . it must 21 be ‘recognizable’ as a discrete group by others in the society, 225 and . . . it must have well-defined boundaries.”). 1 Nor did Jacobo-Melendres establish that she was targeted 2 on account of an imputed anti-gang political opinion. To 3 demonstrate that persecution or a well-founded fear of 4 persecution is on account of an applicant’s political opinion, 5 the applicant must “show, through direct or circumstantial 6 evidence, that the persecutor’s motive to persecute arises from 7 the applicant’s political belief,” rather than merely by the 8 persecutor’s opinion. Yueqing Zhang v. Gonzales , 426 F.3d 540, 9 545 (2d Cir. 2005) (emphasis added). The persecution may be 10 on account of an opinion imputed to the applicant by the 11 persecutor, regardless of whether or not this imputation is 12

accurate. See Chun Gao v. Gonzales , 424 F.3d 122, 129 (2d Cir. 13 2005). Jacobo-Melendres did not assert a political opinion 14 claim in her asylum application, and she testified that the gang 15 member targeted her based solely on his interest in having a 16 relationship with her. Without any direct or circumstantial 17 evidence to support a claim that she was targeted or would be 18 targeted her on account of her political opinion, imputed or 19 otherwise, the BIA did not err in finding that she failed to 20 establish her eligibility for asylum or withholding of removal 21 on that ground. See Yueqing Zhang , 426 F.3d at 545. 226 Accordingly, because Jacobo-Melendres failed to establish 1 that her past harm or fear of future harm were on account of 2 a protected ground as required for asylum and withholding of 3 removal, we deny the petition for review to this extent. See 4 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). 5 Convention Against Torture 6 To receive withholding or deferral of removal under the 7 CAT, an applicant must “establish that it is more likely than 8 not that he or she would be tortured if removed to the proposed 9 country of removal.” 8 C.F.R. § 1208.16(c)(2). Unlike asylum 10 and withholding of removal, CAT relief does not require a nexus 11 to any ground. See id. “Torture is defined as any act by which 12 severe pain or suffering, whether physical or mental, is 13 intentionally inflicted on a person . . . by or . . . with the 14 consent or acquiescence of a public official or other person 15 acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1); see 16 Pierre v. Gonzales , 502 F.3d 109, 114, 118 (2d Cir. 2007); 17 Khouzam v. Ashcroft , 361 F.3d 161, 171 (2d Cir. 2004) 18 (“[T]orture requires only that government officials know of or 19 remain willfully blind to an act and thereafter breach their 20 legal responsibility to prevent it.”). 21 The agency provided insufficient analysis for its 227 conclusion that Jacobo-Melendres failed to demonstrate a 1 likelihood of torture or that Guatemalan officials would 2 acquiesce in her torture. See Poradisova v. Gonzales , 420 F.3d 3 70, 77 (2d Cir. 2005) (explaining that “we require a certain 4 minimum level of analysis from the IJ and BIA opinions . . ., 5 and indeed must require such if judicial review is to be 6 meaningful”). In assessing whether anapplicant has satisfied 7 her burden of proof, the agency must consider all evidence 8 relevant to the possibility of future torture, including 9 evidence of past torture, “[e]vidence that the applicant could 10 relocate to a part of the country of removal where . . . she 11 is not likely to be tortured, . . . [e]vidence of gross, flagrant 12 or mass violations of human rights within the country of 13 removal,” and other relevant information on country conditions. 14 8 C.F.R. § 1208.16(c)(3). 15 In the context of denying CAT relief, the agency failed to 16 analyze any of the material evidence. That evidence included 17 the following: Jacobo-Melendres’s testimony that a gang member 18 in Guatemala stalked and harassed her almost daily for four 19 months and attempted to kidnap her on one occasion in 2012; her 20 testimony that the gang member continues to call her cell phone 21 (which she left with her mother in Guatemala); her testimony 228 that she did not trust the police to help her; letters from her 1 mother, sister, and sister’s father-in-law corroborating her 2 claim; and country reports reflecting that rape, sexual 3 offenses, and femicide are serious problems in Guatemala and 4 that impunity for the perpetrators of such crimes remains 5 extremely high because police are not equipped to investigate 6 or assist victims. Given the agency’s failure to explain its 7
CAT ruling or analyze any of this evidence, we grant the petition 8 to this extent and remand for further consideration of the CAT 9 claim. See 8 C.F.R. § 1208.16(c); see also Poradisova , 420 10 F.3d at 77. 11 For the foregoing reasons, the petition for review is 12 DENIED in part and GRANTED in part and REMANDED for further 13 proceedings consistent with this order. As we have completed 14 our review, any stay of removal that the Court previously 15 granted in this petition is VACATED, and any pending motion for 16 a stay of removal in this petition is DISMISSED as moot. Any 17 pending request for oral argument in this petition is DENIED 18 in accordance with Federal Rule of Appellate Procedure 19 34(a)(2), and Second Circuit Local Rule 34.1(b). 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22