21-6017

Escobar-Menjivar v. Garland

BIA

Straus, IJ

A 208 262 494 

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 for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 13 3 th day of November, two thousand

4 twenty-three.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 Chief Judge,

9 JOHN M. WALKER, JR.,

10 MYRNA PÉREZ,

11 Circuit Judges.

12 _____________________________________

13

14 JOSUE BLADIMIR ESCOBAR15 MENJIVAR,

16 Petitioner,

17

18 v. 21-6017

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________
2

1 FOR PETITIONER: Gregory C. Osakwe, Law Offices of Gregory C. 

2 Osakwe LLC, Hartford, CT.

3

4 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney 

5 General; Justin R. Markel, Paul Fiorino, Senior 

6 Litigation Counsel, Office of Immigration 

7 Litigation, United States Department of 

8 Justice, Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a Board of 

10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

11 DECREED that the petition for review is DENIED.

12 Petitioner Josue Bladimir Escobar-Menjivar, a native and citizen of El 

13 Salvador, seeks review of a December 9, 2020 decision of the BIA affirming an

14 October 4, 2018 decision of an Immigration Judge (“IJ”) denying his application 

for asylum and withholding of removal.1 15 In re Josue Bladimir Escobar-Menjivar, 

16 No. A 208 262 494 (B.I.A. Dec. 9, 2020), aff’g No. A 208 262 494 (Immig. Ct. Hartford 

17 Oct. 4, 2018). We assume the parties’ familiarity with the underlying facts and 

18 procedural history.

19 We review the IJ’s decision as modified by the BIA. See Xue Hong Yang v. 

20 U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). “We review factual findings 

1 Escobar-Menjivar did not assert a claim under the Convention Against Torture on 

appeal to the BIA or in his brief here.
3

1 under the substantial evidence standard, treating them as ‘conclusive unless any 

2 reasonable adjudicator would be compelled to conclude to the contrary.’” Paloka 

3 v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). We 

4 review questions of law de novo. Id. 

5 To establish eligibility for asylum or withholding of removal, an applicant 

6 must demonstrate past persecution or a well-founded fear of future persecution 

7 and that “race, religion, nationality, membership in a particular social group, or 

8 political opinion was or will be at least one central reason for persecuting the 

9 applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v. 

10 Garland, 52 F.4th 103, 105–06, 113–14 (2d Cir. 2022) (deferring to the BIA’s 

11 interpretation of § 1231(b)(3)(A) that the “one central reason” standard applies to 

12 both asylum and withholding of removal). “To succeed on a particular social 

13 group claim, the applicant must establish both that the group itself was cognizable

14 and that the alleged persecutors targeted the applicant ‘on account of’ her 

15 membership in that group.” Paloka, 762 F.3d at 195 (citations omitted). 

16 Escobar-Menjivar alleged that gang members extorted and assaulted him on 

17 account of his membership in his high school’s School Directive Council, a five18 member group involved with the school’s budget. The agency did not err in 
4

1 concluding that he failed to establish a cognizable group or that his membership 

2 in the group was “one central reason” that the gangs extorted and assaulted him. 

3 Accordingly, we deny the petition.

4 I. Particular Social Group

5 To be legally cognizable, a particular social group must be “(1) composed of 

6 members who share a common immutable characteristic, (2) defined with 

7 particularity, and (3) socially distinct within the society in question.” Matter of M8 E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Paloka, 762 F.3d at 196; Ucelo9 Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir. 2007). “To be socially distinct, a 

10 group . . . must be perceived as a group by society.” Matter of M-E-V-G-, 26 I. & 

11 N. Dec. at 240. “[W]hat matters is whether society as a whole views a group as 

12 socially distinct, not the persecutor’s perception.” Paloka, 762 F.3d at 196.

13 Escobar-Menjivar’s proposed group, “young El Salvadorian men who are 

14 members of a School Directive Council . . . who face gang violence,” is not socially 

15 distinct. Pet’r’s Br. at 10. Escobar-Menjivar presented no evidence that anyone 

16 in his town, school, or El Salvador generally perceived the School Directive 

17 Council as a distinct group. He described the composition of the group and its 

18 responsibilities but did not explain how or why the community or society in 
5

1 general would perceive members of this school council as a social group. 

2 Moreover, as discussed further below, the fact that gang members targeted 

3 Escobar-Menjivar for extortion weighs against finding a cognizable social group

4 because “[w]hen the harm visited upon members of a group is attributable to the 

5 incentives presented to ordinary criminals rather than to persecution, the scales 

6 are tipped away from considering those people a ‘particular social group’ within 

7 the meaning of the [Immigration and Nationality Act].” Ucelo-Gomez, 509 F.3d at 

8 73.

9 II. Nexus

10 Substantial evidence supports the agency’s determination that gang

11 members extorted and beat Escobar-Menjivar because they wanted money and 

12 help with their drug activities not because he was a member of the council. 

13 Escobar-Menjivar admitted that he did not know if there was a relationship 

14 between his membership in the council and the gangs’ demands for money. His 

15 testimony—that the gang members wanted information about how the school 

16 moved money, extorted $10 a week from him in high school, demanded a greater 

17 amount when he began university, and beat him when he refused their demands—

18 supports the agency’s determination that gangs were motivated by general 
6

1 criminal interests, not by Escobar-Menjivar’s membership in a particular social 

2 group. See Ucelo-Gomez, 509 F.3d at 73; Melgar de Torres v. Reno, 191 F. 3d 307, 313–

3 14 (2d Cir. 1999) (noting that general crime and violence in a country is not a stated 

4 ground for asylum and withholding of removal). Indeed, Escobar-Menjivar’s

5 testimony indicates that gang members demanded money after he left the group 

6 and demanded money from people who were not in the group. Escobar7 Menjivar’s failure to establish a nexus to a protected ground is dispositive of both 

8 asylum and withholding of removal. See Quituizaca, 52 F.4th at 105–06, 113–14.

9 For the foregoing reasons, the petition for review is DENIED. All pending 

10 motions and applications are DENIED and stays VACATED.

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe,

13 Clerk of Court