13-3047
    Castro-Escobar v. Lynch
                                                                                  BIA
                                                                             Wright, IJ
                                                                          A200 819 052
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT
                                    SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 1st day of February, two thousand sixteen.

    PRESENT:
             JOSÉ A. CABRANES,
             PETER W. HALL,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    ERWIN OTTONIEL CASTRO-ESCOBAR,
             Petitioner,

                        v.                                 13-3047
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                    Bruno Joseph Bembi, Hempstead, New
                                       York.

    FOR RESPONDENT:                    Stuart F. Delery, Assistant Attorney
                                       General; Edward J. Duffy, Assistant
                                       Director; John M. McAdams, Trial
                                       Attorney, Civil Division, Office of
                                       Immigration Litigation, United
                                       States Department of Justice,
                                       Washington D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Erwin Ottoniel Castro-Escobar, a native and

citizen of Guatemala, seeks review of a July 17, 2013,

decision of the BIA affirming an August 15, 2012, decision

of an Immigration Judge (“IJ”) denying Castro-Escobar’s

application for asylum, withholding of removal and relief

under the Convention Against Torture (“CAT”).    In re Erwin

Ottoniel Castro-Escobar, No. A200 819 052 (B.I.A. July 17,

2013), aff’g No. A200 819 052 (Immig. Ct. N.Y. City Aug. 15,

2012).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA decision.     See Xue

Hong Yang v. U.S. Dep’t of Justice, 

, 522 (2d

Cir. 2005).    The applicable standards of review are well

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

Holder, 

, 513 (2d Cir. 2009).

    In the main, Castro-Escobar argues that the evidence

adduced at his merits hearing established that his attackers


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beat him because he was a member of a particular social

group made up of people opposed to gangs and gang violence.

So, the argument goes, he established both past persecution

and a well-founded fear of future persecution by the same

bad actors.

    Castro-Escobar applied for asylum in 2010, and so the

REAL ID Act applies.    8 U.S.C. § 1158(b)(1)(B)(iii).     That

Act provides that an asylum “applicant must establish that

race, religion, nationality, membership in a particular

social group, or political opinion was or will be at least

one central reason for persecuting the applicant.”       8 U.S.C.

§ 1158(b)(1)(B)(I).    In construing the “one central reason”

standard, the BIA has held that “the protected ground . . .

cannot be incidental, tangential, superficial, or

subordinate to another reason for harm.”    Matter of J-B-N &

S-M, 24 I. & N. Dec. 208, 214 (BIA 2007).    We have upheld

that analysis, explaining that the REAL ID Act “makes clear

that mixed motives asylum claims continue to be viable.”

Rodas Castro v. Holder, 

, 104 (2d Cir. 2010).          To

prevail on such a claim, “an asylum applicant need not show

with absolute certainty why the events occurred, but rather,

only that the harm was motivated, in part, by an actual or


                               3
imputed protected ground.”      Uwais v. U.S. Att’y Gen., 

, 517 (2d Cir. 2007) (citing Matter of S-P-, 21 I. &

N. Dec. 486, 494-95 (BIA 1996)).

    Castro-Escobar’s applications for asylum and

withholding suffered from two fatal flaws, one factual and

one legal.     Factually, the agency reasonably concluded that

he failed to satisfy his burden of showing that his attack

“was motivated, in part, by an actual or imputed protected

ground.”     

the record suggested that Castro-

Escobar’s attackers had any reason to suspect that he was

opposed to gangs, gang violence or narcotics trafficking.

To the contrary, Castro-Escobar testified that they

threatened him with future pain if he did not stop seeing

his girlfriend.     On this record, the agency was well within

its discretion to find that they “may have had only personal

reasons for assaulting” Castro-Escobar.

    Castro-Escobar’s claim also failed on the law.       He

suggests that the INA should protect members of a particular

social group made up of Guatemalans opposed to gangs and

gang violence.     The BIA has long defined the phrase

“particular social group” to mean “a group of persons all of

whom share a common, immutable characteristic,” for example,

“sex, color, or kinship ties, or in some circumstances it

                                 4
might be a shared past experience such as former military

leadership or land ownership.”      Matter of Acosta, 19 I. & N.

Dec. 211, 233 (BIA 1985).    More recently, the agency

clarified that “particularity and social distinction” are

also required.    Matter of W-G-R-, 26 I. & N. Dec. 208, 212

(BIA 2014).    Particularity goes to “delineation”: it

requires that “terms used to describe the group have

commonly accepted definitions in the society of which the

group is a part,” and that it is “discrete and [has]

definable boundaries–it must not be amorphous, overbroad,

diffuse, or subjective.”     

  Social distinction

“exists where the relevant society perceives, considers, or

recognizes the group as a distinct social group.”       

   “While the analysis of a particular social group claim

is based on the evidence presented and is often a

fact-specific inquiry, the ultimate determination whether a

particular social group has been established is a question

of law.”    

       Asylum seekers from Central and South American

countries have long pressed for the recognition of

particular social groups related to gangs and violence.         The

agency has rejected these claims.     See, e.g., 

(holding that “‘former members of the Mara 18 gang in El

                                5
Salvador who have renounced their gang membership’ does not

constitute a particular social group” because it “lacks

particularity because it is too diffuse, as well as being

too broad and subjective”); Matter of S-E-G-, 24 I. & N.

Dec. 579, 586-88 (BIA 2008) (concluding that Salvadoran

youths who resist gang recruitment are not a cognizable

social group because they do not share recognizable and

discrete attributes); Matter of S-V-, 22 I. & N. Dec. 1306,

1309-10 (BIA 2000) (holding that a group of Colombian

citizens who feared kidnapping due to their wealth did not

establish eligibility for asylum); Matter of Acosta, 19 I. &

N. Dec. 211, 233 (BIA 1985) holding that “being a taxi

driver in San Salvador and refusing to participate in

guerrilla-sponsored work stoppages” is not an immutable

characteristic).   We have likewise rejected such a claim.

Ucelo-Gomez v. Mukasey, 

, 73 (2d Cir. 2007)

(holding that the proposed social group of “affluent

Guatemalans” “depends on no disadvantage other than

purported visibility to criminals,” so that “the scales are

tipped away from considering those people a ‘particular

social group’”).

    Here, the agency rejected Castro-Escobar’s putative

particular social group made up of Guatemalans opposed to

                              6
gangs and gang violence.    It reasoned that such a group “is

too loosely defined to meet the requirement of

particularity, inasmuch as the group would likely encompass

a large portion of the Guatemalan society, and does not have

the requisite social visibility.”     This conclusion is

consistent with the agency’s jurisprudence on particular

social groups, and is sound.    Castro-Escobar submitted a

handful of news articles about gang violence in Guatemala.

He fails, however, to explain how his putative social group

could be delineated from the rest of law-abiding Guatemalan

society (which presumably opposes gang violence as much as

he does), or how that society could possibly recognize gang

opponents as a “distinct social group.”     Matter of W-G-R-,

26 I. & N. Dec. at 217.    Castro-Escobar therefore failed to

demonstrate the requisite nexus to a protected ground,

making the agency’s rejection of his claims for asylum and

withholding of removal appropriate.

    Castro-Escobar challenges the denial of a discretionary

grant of asylum for humanitarian reasons.     That relief is

available to an alien who has demonstrated past persecution

but whose well-founded fear of future persecution has been

rebutted by the government.    8 C.F.R.

§ 1208.13(b)(1)(iii)(A).    The agency’s finding that Castro-

                               7
Escobar did not suffer past persecution forecloses Castro-

Escobar’s claim.

    The agency also reasonably rejected his application for

CAT relief.   The CAT’s implementing regulations define

torture as, among other things, “an extreme form of cruel

and inhuman treatment.”     8 C.F.R. § 208.18(a)(2).     The

agency did not err in concluding that Castro-Escobar’s sole

altercation, which required only one trip to the hospital,

did not meet that standard.     The only suggestion of

government acquiescence was the fact that nothing came of

the police report Castro-Escobar filed about the attack.       In

his brief to this Court, Castro-Escobar contends that “the

police never completed an investigation.”     But before the

IJ, he introduced a document stating that the prosecutor

closed the case because Castro-Escobar could not identify

his attackers.     Consequently, the agency did not err in

finding that Castro-Escobar failed to demonstrate the

government involvement necessary for CAT relief.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, and the motion for

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

                          FOR THE COURT:
                          Catherine O’Hagan Wolfe, Clerk




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