Filed: Aug. 23, 2017
Latest Update: Mar. 03, 2020
Summary: 16-1519 Morquecho-Saico v. Sessions BIA Verrillo, IJ A205 722 317 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
Summary: 16-1519 Morquecho-Saico v. Sessions BIA Verrillo, IJ A205 722 317 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 ..
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16-1519
Morquecho-Saico v. Sessions
BIA
Verrillo, IJ
A205 722 317
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
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of August, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
MANUEL LORENZO MORQUECHO-SAICO,
Petitioner,
v. 16-1519
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gregory Osakwe, Hartford, CT.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; John S. Hogan,
Assistant Director; Todd J.
Cochran, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Manuel Lorenzo Morquecho-Saico, a native and
citizen of Ecuador, seeks review of an April 19, 2016, decision
of the BIA affirming an October 14, 2014, decision of an
Immigration Judge (“IJ”) denying Morquecho’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Manuel Lorenzo Morquecho-Saico,
No. A205 722 317 (B.I.A. Apr. 19, 2016), aff’g No. A205 722 317
(Immig. Ct. Hartford Oct. 14, 2014). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well established.
See 8 U.S.C. § 1252(b)(4); Weng v. Holder,
562 F.3d 510, 513
(2d Cir. 2009).
I. Asylum & Withholding of Removal
“To establish eligibility for asylum and withholding of
removal, an applicant must show persecution, or fear of
persecution, on account of race, religion, nationality,
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membership in a particular social group, or political opinion.”
Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014). “To succeed
on a particular social group claim, the applicant must establish
both that the group itself was cognizable, and that the alleged
persecutors targeted” or may target “the applicant on account
of his membership in that group.”
Id. (internal quotation marks
and citations omitted). A particular social group is cognizable
if it is “‘(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and
(3) socially distinct within the society in question.’”
Id. at
196 (quoting In re M-E-V-G-, 26 I. & N. Dec. 227, 227 (B.I.A.
2014)). To be “defined with particularity,” the group must be
“‘discrete and have definable boundaries—it must not be
amorphous, overbroad, diffuse, or subjective.’”
Id. (quoting
In re M-E-V-G-, 26 I. & N. Dec. at 239). And, to be “‘socially
distinct, a group need not be seen by society; rather, it must
be perceived as a group by society’” even if people cannot
“‘identify the group’s members on sight.’”
Id. (quoting In re
M-E-V-G-, 26 I. & N. Dec. at 240).
Upon review, we conclude that the agency did not err in
finding that Morquecho-Saico’s proposed particular social group
of “young Ecuadorian men who resist recruitment efforts by
criminal gang members” was not cognizable because it lacked the
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requisite particularity and social distinction. We have upheld
the BIA’s rejection of similar proposed groupings where, as here,
a petitioner fails to offer evidence that individuals who oppose
forced gang recruitment are viewed by the relevant society as
a distinct group and the record is devoid of documentary evidence
discussing the treatment of such individuals as compared to the
rest of the relevant country’s population. See, e.g., Salazar
v. Lynch, 645 F. App’x 53, 56 (2d Cir. 2016). Because
Morquecho-Saico failed to provide any evidence that young
Ecuadorian men who resist gang recruitment are viewed by
Ecuadorian society as a distinct group, and the record is devoid
of documentary evidence discussing the treatment of such
individuals as compared to the rest of Ecuadorian society, the
agency did not err in finding that Morquecho-Saico’s proposed
grouping was not cognizable. Id.; see also Paloka, 762 F.3d at
195 (“the applicant must establish . . . that the group itself
was cognizable”).
Because the agency’s determination that Morquecho-Saico
failed to establish his membership in a particular social group
is dispositive, we decline to consider the agency’s alternative
findings concerning sufficiency of past harm, nexus,
well-founded fear of future persecution, and likelihood of
future persecution. See INS v. Bagamasbad, 429 U.S. 24, 25
4
(1976) (“As a general rule courts and agencies are not required
to make findings on issues the decision of which is unnecessary
to the results they reach.”).
II. CAT Relief
“A petitioner seeking CAT relief must demonstrate that it
is more likely than not that she will be tortured if removed
to her home country.” Meng v. Holder, 770 F.3d 1071, 1076 (2d
Cir. 2014) (internal quotation marks omitted). The agency did
not err in determining that Morquecho-Saico failed to meet his
burden for CAT relief.
Although Morquecho-Saico argues that the agency ignored his
testimony that the police could not protect him from the gang
members he feared because the nearest police station was 8 hours
away from his village and his father’s belief that
Morquecho-Saico would risk physical harm if he returned, the
record does not compellingly suggest that it was ignored because
it was specifically referenced in the IJ’s decision. Cf. Chen
v. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“we
presume that an IJ has taken into account all the evidence before
him, unless the record compellingly suggests otherwise.”).
Moreover, the agency did not clearly err in concluding that
Morquecho-Saico did not demonstrate that he likely would be
tortured given that he was not previously tortured, he had not
5
received any threats since throwing his mobile phone away in
September 2012, he never saw the gang members who threatened
him again, and his parents have remained in Ecuador unharmed.
See Huang v. Holder, 677 F.3d 130, 134 (2d Cir. 2012) (“”A
determination of what will occur in the future and the degree
of likelihood of the occurrence has been regularly regarded as
fact-finding subject to only clear error review.”).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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