Filed: Jun. 15, 2017
Latest Update: Mar. 03, 2020
Summary: 16-1012 Varela-Lopez v. Sessions BIA Straus, IJ A078 283 601 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
Summary: 16-1012 Varela-Lopez v. Sessions BIA Straus, IJ A078 283 601 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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16-1012
Varela-Lopez v. Sessions
BIA
Straus, IJ
A078 283 601
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of June, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 AYLEEN FRANCELES VARELA-LOPEZ,
14 Petitioner,
15
16 v. 16-1012
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jon E. Jessen, Stamford, CT.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Carl H.
27 McIntyre, Assistant Director;
28 Justin R. Markel, Senior Litigation
29 Counsel, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED in part and GRANTED in part.
5 Petitioner Ayleen Franceles Varela-Lopez, a native and
6 citizen of Honduras, seeks review of a March 9, 2016, decision
7 of the BIA affirming a November 3, 2014, decision of an
8 Immigration Judge (“IJ”) denying withholding of removal and
9 relief under the Convention Against Torture (“CAT”). In re
10 Ayleen Franceles Varela-Lopez, No. A078 283 601 (B.I.A. Mar.
11 9, 2016), aff’g No. A078 283 601 (Immig. Ct. Hartford Nov. 3,
12 2014). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 We have reviewed both the IJ’s and the BIA’s decisions
15 denying withholding of removal and CAT relief “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
17 524, 528 (2d Cir. 2006). The applicable standards of review
18 are well established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
19 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). The agency did
20 not err in finding that Varela-Lopez failed to satisfy her
21 burden of proof for withholding of removal, but it did err in
22 failing to adequately consider evidence material to her CAT
23 claim.
2
1 Withholding of Removal
2 In order to demonstrate eligibility for withholding of
3 removal, an applicant must establish that her “life or freedom
4 would be threatened . . . because of [her] race, religion,
5 nationality, membership in a particular social group, or
6 political opinion.” 8 U.S.C. § 1231(b)(3)(A). To
7 constitute a particular social group, a group must be: “(1)
8 composed of members who share a common immutable
9 characteristic, (2) defined with particularity, and (3)
10 socially distinct within the society in question.” Matter of
11 M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also
12 Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir. 2007).
13 “[A] ‘particular social group’ cannot be defined exclusively
14 by the claimed persecution, . . . it must be ‘recognizable’ as
15 a discrete group by others in the society, and . . . it must
16 have . . . definable boundaries.” Matter of M-E-V-G-, 26 I.
17 & N. Dec. at 232. “[I]t must not be amorphous, overbroad,
18 diffuse, or subjective.”
Id. at 239. The agency did not err
19 in finding that Varela-Lopez failed to demonstrate membership
20 in a cognizable social group.
21 First, Varela-Lopez’s proposed social group of victims of
22 gang extortion failed because it was defined by the claimed
23 persecution alone. See
id. at 232. Second, Varela-Lopez did
3
1 not demonstrate that she was or would be targeted for extortion
2 on account of her familial ties or gender given her testimony
3 that her family members have only ever been targeted for
4 extortion and recruitment purposes, and that “everybody” in her
5 neighborhood had been extorted. See Ucelo-Gomez, 509 F.3d at
6 73 (“When the harm visited upon members of a group is
7 attributable to the incentives presented to ordinary criminals
8 rather than to persecution, the scales are tipped away from
9 considering those people a ‘particular social group’. . . .”);
10 see also Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75
11 (B.I.A. 2007) (holding that the group of “wealthy Guatemalans”
12 failed the social distinction requirement because it would not
13 be recognized as a group at a greater risk of crime, extortion,
14 or robbery). And, despite evidence of widespread violence
15 against women in Honduras, the evidence did not show that gangs
16 target women for extortion on account of their gender.
17 Because the record evidence does not indicate that either
18 female victims of extortion or members of Varela-Lopez’s family
19 are at greater risk of harm than other individuals in Honduras,
20 Varela-Lopez failed to establish that she was harmed or faces
21 harm on account of her membership in a cognizable social group
22 as required for withholding of removal. See 8 U.S.C.
23 § 1231(b)(3)(A);
Ucelo-Gomez, 509 F.3d at 73; Matter of A-M-E
4
1 & J-G-U-, 24 I. & N. Dec. at 74-75. Accordingly, we deny the
2 petition for review to this extent.
3 Convention Against Torture
4 As an initial matter, contrary to the Government’s
5 contention, we treat Varela-Lopez’s challenge to the denial of
6 CAT relief as exhausted because the BIA considered and affirmed
7 the IJ’s denial of CAT relief thereby excusing any failure to
8 exhaust. See Xian Tuan Ye Dep’t of Homeland Sec., 446 F.3d 289,
9 296-97 (2d Cir. 2006). To receive withholding or deferral of
10 removal under the CAT, an applicant must “establish that it is
11 more likely than not that he or she would be tortured if removed
12 to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
13 Unlike withholding of removal, CAT relief does not require a
14 nexus to any ground. See
id. “Torture is defined as any act
15 by which severe pain or suffering, whether physical or mental,
16 is intentionally inflicted on a person . . . by or . . . with
17 the consent or acquiescence of a public official or other person
18 acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1);
19 Pierre v. Gonzales,
502 F.3d 109, 114, 118 (2d Cir. 2007);
20 Khouzam v. Ashcroft,
361 F.3d 161, 172 (2d Cir. 2004)
21 (“[T]orture requires only that government officials know of or
22 remain willfully blind to an act and thereafter breach their
23 legal responsibility to prevent it.”).
5
1 The agency provided insufficient analysis to support its
2 conclusion that Varela-Lopez failed to demonstrate a
3 likelihood of torture or that Honduran officials would
4 acquiesce in her torture. See Poradisova v. Gonzales, 420 F.3d
5 70, 77 (2d Cir. 2005) (explaining that “we require a certain
6 minimum level of analysis from the IJ and BIA opinions . . .
7 , and indeed must require such if judicial review is to be
8 meaningful”). In assessing whether an applicant has satisfied
9 her burden of proof, the agency must consider all evidence
10 relevant to the possibility of future torture, including
11 evidence that the applicant has suffered torture in the past,
12 “[e]vidence that the applicant could relocate to a part of the
13 country of removal where . . . she is not likely to be tortured,
14 . . . evidence of gross, flagrant or mass violations of human
15 rights within the country of removal,” and other relevant
16 information on country conditions. 8 C.F.R. § 1208.16(c)(3).
17 The agency failed to discuss any of the record evidence
18 material to Varela-Lopez’s CAT claim. That evidence included
19 the following: Varela-Lopez’s testimony that gang members
20 killed her father, uncle, and brother for failing to pay
21 extortion; the death certificates supporting that testimony;
22 her testimony that gang members assaulted her and her two living
23 brothers; threatening letters from gang members; country
6
1 reports reflecting increased murder rates of women between 2005
2 and 2012 (a large number of which were likely related to gangs);
3 and reports that Honduran police are willfully blind to
4 violence against women. Given the agency’s failure to explain
5 its CAT ruling or analyze any of this evidence, we grant the
6 petition to this extent and remand for further consideration
7 of the CAT claim. See 8 C.F.R. § 1208.16(c); see also
8 Poradisova, 420 F.3d at 77.
9 For the foregoing reasons, the petition for review is
10 DENIED in part and GRANTED in part and REMANDED for further
11 proceedings consistent with this order.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
7
