NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 17-3742

_____________ OSBELI LOPEZ-MONROY, Petitioner

v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL UNITED STATES OF AMERICA; UNITED STATES IMMIGRATIO N & CUSTOMS ENFORCEMENT, Respondents

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No.: A089-006-588) Immigration Judge: Honorable Mirlande Tadal

Submitted under Third Ci rcuit L.A.R. 34.1(a) September 14, 2018 Before: JORDAN, VANASKIE a nd RENDELL, Circuit Judges
(Opinion filed: October 24, 2018)2 _________ O P I N I O N 1

_________ RENDELL, Circuit Judge: Osbeli Lopez-Monroy, a native and citizen of Guatemala, seeks review of the Board of Immigration Appeals’ (“BIA”) de cision affirming the Immigration Judge’s (“IJ”) denial of his petitions for statutor y withholding of rem oval and request for protection under the Convention Against To rture (“CAT”). Because Lopez-Monroy failed to state a cognizable particular social group (“PSG”) and the BIA’s conclusion that Lopez-Monroy failed to provide sufficient f acts amounting to torture is supported by substantial evidence, we will affirm. 2 I. Background 3 Mr. Lopez-Monroy entered the United States in 2003 at the age of fifteen without inspection or admission. In 2009, the Depa rtment of Homeland Security issued LopezMonroy a Notice to Appear commencing immi gration removal proceedings. In 2017, Lopez-Monroy renewed his earlier effort to ob tain statutory withhol ding of removal and protection under CAT. The IJ held a hearing to review the pe titions. Lopez-Monroy testified at the hearing that he came to the United States fro m Guatemala, fleeing death threats from the

1 This disposition is not an opinion of the fu ll Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 The BIA had jurisdiction unde r 8 C.F.R. § 1003.1(b)(3). We have jurisdiction to hear this appeal from the BIA u nder 8 U.S.C. § 1252(a)(1). 3 Because we write for the parties, we set out only what is nece ssary to explain our decision.3 Villeda family “who have thr eatened [him] for [h is] entire life.” A.R. 182. LopezMonroy’s mother also testif ied at the hearing about thre ats from the Villeda family. Lopez-Monroy called an expert witness to te stify about the danger s in Guatemala. Lopez-Monroy’s written submission urged that “it is more likel y than not that he would be persecuted on account of his membership in a particular social group if he [were] forced to return to Guatemala, namely, his status as ‘an individual whose family was targeted by a family of crim inals,’” A.R. 621, and “[he] will face torture and severe human rights violations if he is returned to Guat emala,” A.R. 627. The IJ denied Lopez-Monroy ’s petitions. She found that Lopez-Monroy failed to state a cognizable PSG with a “‘clear benchm ark’ for the ‘outer limits’ of th[e] group.” A.R. 115. The IJ also found that, even assuming a cogniz able social group existed, Lopez-Monroy failed to show past persecu tion or a clear probability of future persecution. As for the CAT petition, the IJ found it was not likely that Lopez-Monroy would be subjected to torture if he returned to Guatemala. Mr. Lopez-Monroy appealed the IJ’s deci sion to the BIA. The BIA dismissed the appeal. The BIA found Lopez-Monroy did not state a cognizable PSG. The BIA also rejected the alternative PSG proffered by Lopez-Monroy, namely, “members of [his] family who attempted to speak out against the Villeda fam ily,” because this was a new definition “not raised during the prior pro ceedings.” A.R. 5. Rega rding the CAT petition, the BIA found “Respondent has not demonstrated that [his] experiences, in their entirety
. . . amount to torture.” Id

. Lopez-Monroy filed a Petition fo r Review with our court.4 II. Discussion We review questions of law de novo , Castro v. Att’y Gen. , 671 F.3d 356, 365 (3d Cir. 2012), and agency determinations und er the substantial evidence standard, I.N.S. v. Elias-Zacarias , 502 U.S. 478, 481 (1992). We will only overturn an agency’s determination if “any reasonable adjudicator would be compelled to conclude to the contrary” based on the record . 8 U.S.C. § 1252(b)(4)(B). When reviewing the BIA’s decision, we consider the IJ’s opinion to th e extent the BIA “substa ntially relied” upon it in reaching its decision. Camara v. Att’y Gen. , 580 F.3d 196, 201 ( 3d Cir. 2009). With these standards in mind, we review the BI A’s denial of Lopez-Monroy’s petitions for statutory withholding of rem oval and protection under CAT. A. The BIA correctly denied the petition for statutory withholding of removal because Lopez-Monroy’s PSG is not cognizable. To succeed on a petition for statutory with holding of removal, a petitioner bears the burden to show that he is likely to be persecuted if he returns to his country “on account of . . . [his] memb ership in a particular social grou p.” 8 U.S.C. § 1101(a)(42)(A). A PSG must be: (1) Composed of members who share a common immutable characteristic; (2) Defined with particularity, and (3) Socially distinct within the society in question.5 Matter of M-E-V-G- , 26 I. & N. Dec. 227, 237 (B.I.A. 2014). 4 The BIA found two reasons to reject Lopez-Monroy’s PSG of “a n individual whose family was targeted by a family of criminals.” First, the PSG is not cognizable because it is impermissibly circular. Second, the PSG lacks particularity. 5 First, we agree that Lopez-Monroy’s PSG is impermissibly circular. A cognizable PSG “must exist independently of the persecution suffered.” Lukwago v. Ashcroft , 329 F.3d 157, 172 (3d Cir. 2003); see also Escobar v. Gonzales , 417 F.3d 363, 367 (3d Cir. 2005) (“The persecution cannot be what de fines the contours of the group.”). The defining feature of Lopez-Monroy’s PSG—target ed by a family of cr iminals—is the very harm from which he seeks protection. Beca use the PSG “must have existed before the persecution began” and the fact of being ta rgeted by the Villeda family created the persecution, Lopez-Monroy’s PSG is not cognizable. Lukwago , 329 F.3d at 172. Second, substantial evidence supports th e BIA’s conclusion that the PSG is not defined with particularity. A PSG is “partic ular,” if it provides a “clear benchmark for determining who falls within the group.” M-E-V-G- , 26 I. & N. Dec. at 239. The terms cannot be “amorphous, overbroad, diffuse, or subjective.” Id. The IJ found LopezMonroy’s PSG included “kin of the third degr ee” with “different last names from one another.” A.R. 115. Based on the remotene ss of the relationships, the IJ concluded,

4 In S.E.R.L. v. Att’y Gen ., we afforded this definition Chevron deference, and we do the same here. 894 F.3d 5 35, 555 (3d Cir. 2018) (“ M-E-V-G- is based on a reasonable construction of the statute, whether or not it is the only possible interpretation or . . . the one [we] might think best.” (interna l quotation marks and citation omitted)).
5 To the extent the BIA also fo und fault with the social dis tinctiveness of Lopez-Monroy's PSG, we need not address that issue, since ou r conclusions with respect to circularity and particularity are sufficient to decide the case.6 “Respondent has not provided a ‘clear benchmar k’ for the ‘outer limits’ of this group.” A.R. 115. The BIA agreed, concluding “[t]he re spondent has not cited to any evidence to suggest that there is a consensus among members of society as to the furthest degree of consanguinity one could have and still be regarded as a me mber of the group.” A.R. 5. Although the BIA has recognized “family” as a cognizable PSG in certain contexts, the determination depends on “the nature and degree of the re lationships i nvolved and how those relationships are regarded by the society in question.” Matter of L-E-A- , 27 I. & N. Dec. 40, 43 (B.I.A. 2017). Because a reasonab le adjudicator could have found based on the record that the relationships were too remo te to be particularized, we will not disturb the BIA’s conclusion. Lopez-Monroy urges that the BIA imprope rly excluded his proposed alternative PSG. In the first instance, it is the burden of the petitioner to “clearly indicate . . . [the] enumerated ground(s) []he is rely ing upon in making h[is] claim.” Matter of W-Y-C- &
H-O-B- , 27 I. & N. Dec. 189, 191 (B.I.A. 2018 ) (internal quotation marks omitted) (quoting Matter of A-T- , 25 I. & N. Dec. 4, 10 (B.I.A. 2009)). “Where . . . an applicant delineates a social group for the first time on appeal, the Immigration Judge will not have had an opportunity to make relevant factua l findings, which [the BIA] cannot do in the first instance on appeal.” Matter of W-Y-C- , 27 I. & N. Dec. at 191 (citing 8 C.F.R. § 1003.1(d)(3)(iv)). On appeal to the BIA, Lopez-Monroy urged an alternative PSG, namely “members of [his] family who attemp t to speak out against the Villeda family,” A.R. 5, a different PSG from the one propo sed in closing argument before the IJ. LopezMonroy has pointed us to testimony elicited dur ing the hearing before the IJ that would7 support this new PSG. However, the testimony provided does not clearly delineate the PSG, nor was it specifically ar gued to the IJ. Thus, the BIA did not err by refusing to evaluate it on appeal. Because Lopez-Monroy’s last argument a ssumes a cognizable PSG, and we agree with the BIA’s conclusion that Lopez-Monr oy did not meet his burden to establish a cognizable PSG, we need not address whet her the BIA’s “nexus and past persecution analysis [were] perfunctory an d imprecise.” Opening Br. at 23. 6
B. The BIA had substantial evidence th at the likelihood of future harm did not amount to torture meri ting CAT protection. To receive protection under CAT, a petitione r must show it is more likely than not he will be tortured if returned to the country of proposed re moval. 8 C.F. R. § 208.17(a). When making this determination, the IJ must consider two questions: “(1) what is likely to happen to the petitioner if removed; and (2 ) does what is likely to happen amount to the legal definition of torture.” Kaplun v. Att’y Gen. , 602 F.3d 260, 271 (3d Cir. 2010). An experience amounts to torture if it: (1) causes “severe physi cal or mental pain or suffering”; (2) is intentionally inflicted; (3) for a proscribed purpose; (4) “by or at the instigation of or with the cons ent or acquiescence of a public official who has custody or

6 Lopez-Monroy makes two additional argument s in the brief. He argues the BIA erred because it should have made a determination as to past pers ecution, even though it found Lopez-Monroy failed to state a cognizable PSG. This is incorrect. INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule c ourts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). Lopez-Monroy also argues that the BIA failed to appropriately evaluate the testimony of the expert witness. Because the expert witness only provided te stimony about Guatemala generally, and provided no info rmation about the Villeda fam ily particularly, the IJ and the BIA did not err by placing little weight on the testimony.8 physical control of the victim”; and (5) not arising from lawful sanctions. Matter of J-E- , 23 I. & N. Dec. 291, 297 (B.I.A. 2002). The IJ found that Lopez-Monroy is unlikely to be physically harmed if he returns to Guatemala because “[he] re mained in Guatemala, without incident, during the eleven years he states he was threaten ed by the Villedas.” A.R. 119. The IJ also found “verbal threats do[] not constitute torture.” A.R. 120 (citing Auguste v. Ridge , 395 F.3d 123 (3d Cir 2005)). The BIA reviewed the IJ’s findi ngs and the record, pl acing weight on the “three threatening encounters [Lopez-Monroy] experienced in Guatemala, two of which involved being held at gunpoint and thre atened with death.” A.R. 5. The BIA nonetheless determined that Lopez-Monroy did not demonstrate that these three occasions happening over the span of eleven years amounted to torture, or established that he would be tortured if he returned to Guatemala. Lopez-Monroy argues the BIA erred because the past threats from the V illeda family constituted attempted murder, which constitutes torture. Comollari v. Ashcroft , 378 F.3d 694, 697 (7th Cir. 2004). The BIA weighed the severity of the past thre ats to Lopez-Monroy, including the argument that the Villeda family attempted to murder Lopez-Monroy, but agreed with the IJ that the past events did not “result[ ] in severe pain or suffering so as to amount to torture.” A.R. 5 (internal quotation marks omitted). Because this conclusi on is supported by substantial evidence, we will not disturb the BIA’s ruling.9 III. Conclusion For the above reasons, we will deny th e Petition for Review of the Board of Immigration Appeals’ denial of Lopez-Monr oy’s petitions for statut ory withholding of removal and CAT protection.