Filed: Feb. 01, 2016
Latest Update: Mar. 02, 2020
Summary: 13-3047 Castro-Escobar v. Lynch BIA Wright, IJ A200 819 052 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
Summary: 13-3047 Castro-Escobar v. Lynch BIA Wright, IJ A200 819 052 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 ..
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13-3047
Castro-Escobar v. Lynch
BIA
Wright, IJ
A200 819 052
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.
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, 426 F.3d 520, 522 (2d
Cir. 2005). The applicable standards of review are well
established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder,
562 F.3d 510, 513 (2d Cir. 2009).
In the main, Castro-Escobar argues that the evidence
adduced at his merits hearing established that his attackers
2
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, 597 F.3d 93, 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., 478
F.3d 513, 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.” Id. Nothing in 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.” Id. at 214. Social distinction
“exists where the relevant society perceives, considers, or
recognizes the group as a distinct social group.”
Id. at
217. “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.”
Id. at 209-10.
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., id. at 221
(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, 509 F.3d 70, 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
8
