Filed: Oct. 27, 2017
Latest Update: Mar. 03, 2020
Summary: 16-904 Guzman-Alvarez v. Sessions BIA Nelson, IJ A206 638 444 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 (WI
Summary: 16-904 Guzman-Alvarez v. Sessions BIA Nelson, IJ A206 638 444 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 (WIT..
More
16-904
Guzman-Alvarez v. Sessions
BIA
Nelson, IJ
A206 638 444
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
27th day of October, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
JACQUELINE LISSETTE GUZMAN-ALVAREZ,
Petitioner,
v. 16-904
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Kathryn E. Cimone, Jadeja & Cimone,
LLP, Hempstead, N.Y.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Jessica A.
Dawgert, Senior Litigation Counsel;
Tracey N. McDonald, Trial Attorney,
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 Jacqueline Lissette Guzman-Alvarez, a native
and citizen of El Salvador, seeks review of a February 23, 2016
decision of the BIA affirming an August 18, 2015 decision of
an Immigration Judge (“IJ”) denying Guzman-Alvarez’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Jacqueline
Lissette Guzman-Alvarez, No. A206 638 444 (B.I.A. Feb. 23,
2016), aff’g No. A206 638 444 (Immig. Ct. N.Y. City Aug. 18,
2015). 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, i.e., minus the grounds
that the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We therefore
review only the agency’s conclusion that Guzman-Alvarez failed
to establish her membership in a cognizable particular social
2
group. We review factual findings under the substantial
evidence standard and questions of law—including the question
whether a group constitutes a particular social group—de novo.
Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
“The burden of proof is on the applicant to establish that
the applicant is a refugee,” 8 U.S.C. § 1158(b)(1)(B)(i), and
“the applicant [must] satisf[y] the trier of fact that the
applicant’s testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the applicant
is a refugee,” id. § 1158(b)(1)(B)(ii). One way that an
applicant can demonstrate eligibility for asylum and
withholding of removal is to show that she was persecuted on
account of her membership in a particular social group.
Id.
§§ 1158(b)(1)(B)(i); 1231(b)(3)(A). To be cognizable, a
particular social group must satisfy all three of the following
requirements.
Paloka, 762 F.3d at 195-96. First, it must be
composed of members who “share a common immutable
characteristic.”
Id. at 195 (quoting In re Acosta, 19 I & N
Dec. 211, 233 (BIA 1985)). An immutable characteristic is one
that members of the group “either cannot change, or should not
be required to change because it is fundamental to their
individual identities or consciences.”
Id. (quoting In re
3
Acosta, 19 I & N Dec. at 233). Second, the particular social
group must be defined with particularity, meaning that the group
must be “discrete and have definable boundaries—it must not be
amorphous, overbroad, diffuse, or subjective.” Id. at 196
(quoting Matter of M-E-V-G-, 26 I & N Dec. 227, 239 (BIA 2014)).
Third, the particular social group must be “socially distinct
within the society in question,” meaning that it is “perceived
as a group by society.”
Id. (quoting Matter of M-E-V-G-, 26
I & N Dec. at 237, 240).
The BIA has determined that women who have fled domestic
violence may qualify for asylum as members of a particular
social group when, based on their circumstances and
circumstances in the country from which they have fled, each
of those requirements is met. Matter of A-R-C-G-, 26 I & N Dec.
388, 390 (BIA 2014) (concluding that a proposed group of
“married women in Guatemala who are unable to leave their
relationship” satisfied the three requirements for a particular
social group). The BIA’s decision in Matter of A-R-C-G- offers
guidance for this case-specific inquiry. We conclude that, in
light of the principles expressed in Matter of A-R-C-G- and the
insufficient and vague evidence presented below, the agency did
not err in concluding that Guzman-Alvarez failed to carry her
4
burden of establishing membership in a cognizable particular
social group. Specifically, Guzman-Alvarez did not present
sufficient evidence to fulfill the “immutable characteristic”
and “defined-with-particularity” requirements.
First, as to the “immutable characteristic” requirement,
gender is an immutable characteristic and the BIA has determined
that “marital status can be an immutable characteristic where
the individual is unable to leave the relationship.” Id. at
392-93. When considering whether a characteristic is
immutable, “adjudicators must consider a respondent’s own
experiences, as well as more objective evidence, such as
background country information.”
Id. at 393. Here, based on
the evidence put forward by Guzman-Alvarez, the agency did not
err in concluding that Guzman-Alvarez was ineligible for
relief.
The standards set forth in the Matter of A-R-C-G- refer to
“marital status” and the importance of a fact-specific,
case-by-case inquiry in assessing whether “dissolution of a
marriage could be contrary to religious or other deeply held
moral beliefs” or whether “dissolution is possible when viewed
in light of religious, cultural, or legal constraints” and the
applicant’s “own experiences.” Id. at 392-93. In Matter of
5
A-R-C-G-, the applicant “suffered repugnant abuse by her
husband,” including “weekly beatings,” a broken nose, rape, and
an incident in which her husband threw paint thinner on the
applicant, burning her breast. Id. at 389. The applicant
“contacted the police several times but was told that they would
not interfere in a marital relationship. On one occasion, the
police came to her home after her husband hit her on the head,
but he was not arrested.”
Id. The BIA in Matter of A-R-C-G-
found that “it [wa]s significant that the [applicant] sought
protection from her spouse’s abuse and that the police refused
to assist her because they would not interfere in a marital
relationship.”
Id. at 393. Additionally, the applicant in
Matter of A-R-C-G- “repeatedly tried to leave the relationship
by staying with her father, but her husband found her and
threatened to kill her if she did not return to him.”
Id. at
389.
Here, in contrast, although Guzman-Alvarez and Santos had
three children and lived together as a family for approximately
14 years, they never married. In Matter of A-R-C-G-, the
applicant was unable to leave her husband because he followed
her and threatened her with death if she did not return.
However, Guzman-Alvarez testified that, since April 2014, she
6
had lost communication with Santos (although a female cousin
reported that Santos had sent the cousin a Facebook message
stating that he was looking for her). Additionally, unlike the
applicant in Matter of A-R-C-G-, Guzman-Alvarez never
complained to the police. Finally, in the proceedings below,
the agency focused on evidence showing that Guzman-Alvarez was
able to run errands and escape to the United States, which was
rebutted only by vague and undetailed testimony, to support its
finding that the applicant had not shown an inability to leave
her relationship. Based on our review of the record, we find
no error in the conclusion that Guzman-Alvarez failed to meet
the “immutable characteristic” requirement.
Substantial evidence similarly supports the agency’s
determination that Guzman-Alvarez failed to satisfy the
“defined-with-particularity” requirement. A social group is
“defined with particularity” when there is a “clear benchmark
for determining who falls within the group.” Paloka, 762 F.3d
at 196 (quoting Matter of M-E-V-G-, 26 I & N Dec. at 239); see
Matter of A-R-C-G-, 26 I & N Dec. at 393 (looking to the police
department’s refusal to protect the applicant when determining
that the applicant satisfied the particularity requirement).
Here, the agency concluded that Guzman-Alvarez’s social group
7
was too broad. This conclusion is amply supported by the record
which shows that Guzman-Alvarez was not married to her abuser,
never complained to the police, and otherwise offered only vague
testimony in arguing that her particular social group was
defined with particularity. Taking the record as a whole, we
again find no error in the conclusion that Guzman-Alvarez failed
to meet the “defined-with-particularity” requirement.
We have considered Guzman-Alvarez’s remaining claims and
conclude that they, too, are without merit. For the foregoing
reasons, we DENY the petition for review. Any pending request
for oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8
