15-3714
    Ubando v. Sessions
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A088 428 690
                              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
    8th day of May, two thousand seventeen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             JON O. NEWMAN,
             PIERRE N. LEVAL,
                  Circuit Judges.
    _____________________________________

    GUERRA O. UBANDO, AKA OBANDO
    LOPEZ,
             Petitioner,

                         v.                                          15-3714
                                                                     NAC
    JEFFERSON B. SESSIONS III*, UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Joshua E. Bardavid, New York, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Song
                                         Park, Senior Litigation Counsel;

    * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
    General Jefferson B. Sessions III is automatically substituted for
    former Attorney General Loretta E. Lynch as Respondent.
                              Sunah Lee, 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

GRANTED, and the matter is REMANDED for further consideration.

    Petitioner Guerra O. Ubando, a native and citizen of

Guatemala, seeks review of an October 20, 2015, decision of the

BIA, affirming a May 19, 2014, decision of an Immigration Judge

(“IJ”) denying Ubando’s application for withholding of removal

and relief under the Convention Against Torture (“CAT”).         In

re Guerra O. Ubando, No. A088 428 690 (B.I.A. Oct. 20, 2015),

aff’g No. A088 428 690 (Immig. Ct. N.Y. City May 19, 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 opinions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 

, 528 (2d Cir.

2006).    The    applicable    standards   of   review   are   well

established.    See Paloka v. Holder, 

, 195 (2d Cir.

2014); Edimo-Doualla v. Gonzales, 

, 281-83 (2d Cir.

2006).   The only issue before us is the agency’s denial of
                                 2
withholding of removal.         Ubando withdrew his application for

asylum and does not challenge the denial of CAT relief.

     Ubando does not allege past persecution and seeks relief

based on his fear of future persecution.          An applicant seeking

withholding of removal must establish that his fear of future

persecution is “on account of race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42) (emphasis added); see also Castro v.

Holder, 

, 100 (2d Cir. 2010) (explaining that the

burden is on the “applicant to establish a sufficiently strong

nexus   to   .   .   .    [a]    protected    ground[]”);     8   C.F.R.

§ 1208.16(b)(2).         An   applicant    must   establish   that   the

protected ground “was or will be at least one central reason

for” the claimed persecution.           8 U.S.C. §§ 1158(b)(1)(B)(i),

1231(b)(3)(A); see also In re J-B-N- and S-M-, 24 I. & N. Dec.

208, 212 (B.I.A. 2007); In re C-T-L-, 25 I. & N. Dec. 341, 346-48

(B.I.A. 2010) (holding that the “one central reason” standard

applies to withholding of removal).         Because the agency assumed

that Ubando’s family is a cognizable social group, we first

address whether Ubando’s other proposed group of “returning

immigrants with debts to smugglers with government ties” is

cognizable, and then address the agency’s nexus finding, that


                                    3
is, whether Ubando’s alleged fear of persecution in Guatemala

is on account of a protected ground.

       Ubando argues that it is more likely than not that he will

face future persecution on account of his membership in social

groups, specifically, (1) returning immigrants indebted to

smugglers, and (2) family members of people who have spoken out

against    the     Guatemalan   government.         These   grounds     are

addressed in turn.

  I.     Social Group of Indebted Returning Immigrants

       The agency reasonably concluded that Ubando did not

establish that “returning immigrants with debts to smugglers”

was a social group.        To be cognizable, a social group 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.”               Matter of

M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).           An “immutable

characteristic” is “one that the members of the group either

cannot change, or should not be required to change because it

is fundamental to their individual identities or consciences.”

Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985),

overruled on other grounds by INS v. Cardoza-Fonseca, 

(1987); accord Ivanishvili v. U.S. Dep’t of Justice, 

, 342 (2d Cir. 2006); see also Ucelo-Gomez v. Mukasey,
                                     4


, 72-73 (2d Cir. 2007).      “‘Particularity’ refers to

whether the group is ‘sufficiently distinct’ that it would

constitute ‘a discrete class of persons.’”       Matter of W-G-R-,

26 I. & N. Dec. 208, 210 (B.I.A. 2014) (quoting Matter of S-E-G-,

24 I. & N. Dec. 579, 584 (B.I.A. 2008)).        Social distinction

requires that the shared traits be sufficient for the group to

“be perceived as a group by society.”       Matter of M-E-V-G-, 26

I. & N. Dec. at 240; Matter of W-G-R-, 26 I. & N. Dec. at 216;

(“[W]hat matters is whether society as

a whole views a group as socially distinct, not the persecutor’s

perception.”).

    Ubando argues that the “characteristics of [this group] are

immutable, unchangeable, and sufficiently visible to both the

persecutor and the community.”       The agency applied the correct

criteria, and we discern no error in its conclusion that Ubando

did not establish that “returning immigrants with debts to

smugglers” is a cognizable social group, as the group is neither

immutable nor socially distinct.         Ubando himself testified

that “What [he] has is a debt, and if [he] pay[s] that debt,

then [he’s] free.”   And while Ubando argues that the group is

socially distinct because others similarly situated have been

targeted, that would not make those individuals a cognizable

group.   In other words, members would not be targeted because
                                 5
of their group membership; instead, they would form a group only

because they have been targeted.    See Matter of M-E-V-G-, 26

I. & N. Dec. at 242-43; see also 

(“When the harm visited upon members of a group is attributable

to the incentives presented to ordinary criminals rather than

to persecution, the scales are tipped away from considering

those   people   a   ‘particular   social   group’.   .   .   .”).

Accordingly, we decline to reach the agency’s alternative

determination that Ubando could not demonstrate a nexus between

this proposed group and the harm he fears.            See INS v.

Bagamasbad, 

, 25 (1976).

  II. Social Group of Family Members

    However, we discern error in the agency’s determination

that Ubando “failed to meet his burden of demonstrating a

likelihood of persecution based on membership in” his “family

social group.” Certified Administrative Record (“CAR”) 4.

As noted above, an applicant for withholding of removal “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” the claimed persecution.       8

U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); In re C-T-L-, 25 I.

& N. Dec. at 346-48.


                               6
    Ubando contends that he will likely be targeted because of

his familial ties to his father, who spoke out against the

government.    Ubando primarily argues that the 1988 murder of

his uncle, and the subsequent murders of another uncle and that

uncle’s wife in 2000, which he suspects were perpetrated by the

Guatemalan    government,   provide   evidence   that   he   will   be

targeted.

    The agency’s rejection of Ubando’s family social group

claim is problematic for two reasons. First, the BIA’s opinion

includes the following:

    As noted in the [I.J.’s] decision, the respondent was
    approximately one-year old when his father spoke out
    against the government, and his father moved to a
    neighboring country before the respondent reached the
    age of four (I.J. at 6). The record does not
    demonstrate that the respondent or his family members
    were subsequently harmed in Guatemala or that they
    would face a likelihood of harm on account of his
    father’s criticism of the government many years ago
    (I.J. at 6-7). See generally Matter of A-E-M-, 21 I&N
    Dec. 1157 (BIA 1998) (reasonableness of an alien’s
    fear of persecution is reduced when close family
    members remain in native country unharmed for a long
    period of time after alien’s departure).

CAR 4 (internal footnote omitted).

    This passage omits any reference to the IJ’s finding that

one of the Petitioner’s uncles was murdered in 1988, see CAR

20. More significantly, by stating in the second sentence that

“[t]he record does not demonstrate that the respondent or his

                                 7
family members were subsequently [i.e., after the petitioner

was four, in 1991 or 1992] harmed,” the BIA’s opinion appears

to overlook the petitioner’s testimony, all of which the IJ

credited, see CAR 22, that another uncle and that uncle’s wife

were murdered in 2000, see CAR 168. In colloquy with counsel

for the Petitioner and the Government, the IJ appeared to

acknowledge that these murders occurred in 2000. See 

reads the second sentence quoted above, beginning “[t]he

record does not demonstrate,” as intending to deny the fact that

family members had been harmed, see Br. for Petitioner at 24;

the Government reads the sentence as intending to deny only the

claimed reason for the murders, i.e., that the murders were “on

account of” the father’s criticism of the government, see Br.

for Respondent at 33. The BIA’s parenthetical discussion of

Matter of A-E-M-, 21 I. & N. Dec. 1157 (BIA 1998) suggests that

the   Petitioner’s    reading   has   much   to   recommend   it.

At the very least, the absence of any mention in the BIA’s

opinion of the two murders in 2000 leaves this matter in doubt.

      Second, the IJ relied on the facts that Ubando was an infant

when his uncle was murdered in 1988 and that Ubando encountered

no harm in Guatemala during the 10 years he lived there after

his father fled. See CAR 24. However, the fact that those who

murdered the Petitioner’s relatives did not harm him while he
                                 8
was a child does not necessarily mean that he would not face

harm were he to return as an adult.

    Because the BIA erred in appearing to state that there was

no evidence of harm to the Petitioner’s relatives after the

Petitioner reached the age of four, and because we cannot be

sure how the BIA would assess the likelihood of harm to the

Petitioner as an adult after the BIA acknowledges the two

murders in 2000, we remand for further consideration of the

Petitioner’s claimed fear of persecution based on family

membership.

    For the foregoing reasons, the petition for review is

GRANTED, and the matter is remanded for further consideration.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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