Aguilar Lemus v. Barr

Opinion

17-1818 Aguilar Lemus v. Barr BIA Schoppert, IJ A073 649 199

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 9th day of October, two thousand nineteen.

PRESENT: DEBRA ANN LIVINGSTON, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

JORGE AGUILAR LEMUS, Petitioner,

v. 17-1818 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Bruno Joseph Bembi, Hempstead, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Vanessa M. Otero, 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 in part and DISMISSED in part.

Petitioner Jorge Aguilar Lemus (“Lemus”), a native and

citizen of El Salvador, seeks review of a June 2, 2017,

decision of the BIA affirming a September 28, 2016, decision

of an Immigration Judge (“IJ”) denying Lemus’s applications

for asylum, withholding of removal, relief under the

Convention Against Torture (“CAT”), and cancellation of

removal. In re Jorge Aguilar Lemus, No. A 073 649 199 (B.I.A.

June 2, 2017), aff’g No. A 073 649 199 (Immig. Ct. N.Y. City

Sept. 28, 2016). We assume the parties’ familiarity with the

underlying facts and procedural history in this case. We

have reviewed both the BIA’s and IJ’s decisions. See Zaman

v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).

A. Asylum, Withholding of Removal, and CAT Relief

The applicable standards of review are well established.

See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191,

195 (2d Cir. 2014). An asylum applicant must show that he

has suffered past persecution, or has a well-founded fear of

future persecution, on account of race, religion,

nationality, membership in a particular social group, or 2 political opinion. See 8 U.S.C. §§ 1101(a)(42),

1158(b)(1)(B)(i). Lemus did not establish past persecution.

Although he testified about the Salvadoran civil war and its

effect on his family, he stated that he left El Salvador

because of poverty and did not identify any persecution that

he had suffered as a result of the war. Lemus argues that

the general chaos and fear created by the civil war and his

parents’ fears of harm is sufficient to establish past

persecution. But “the statutory scheme unambiguously

dictates that applicants can become candidates for asylum

relief only based on persecution that they themselves have

suffered or must suffer.” Shi Liang Lin v. U.S. Dep’t of

Justice, 494 F.3d 296, 308 (2d Cir. 2007) (emphasis added).

Lemus’s claim of future persecution also fails. Lemus

testified that he feared general criminal conditions in El

Salvador, and that if removed he would be targeted either

because he had resided in the United States or because he

would become a small business owner. Lemus had the burden

to establish both a legally cognizable social group and that

he had a well-founded fear of future persecution on account

of his membership in that group. See 8 U.S.C.

§ 1158(b)(1)(B)(i); Paloka, 762 F.3d at 195. To constitute

a particular social group, a group must be: “(1) composed of 3 members who share a common immutable characteristic, (2)

defined with particularity, and (3) socially distinct within

the society in question.” In re M-E-V-G-, 26 I. & N. Dec.

227, 237 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey, 509

F.3d 70, 72–74 (2d Cir. 2007). “[A] ‘particular social

group’ cannot be defined exclusively by the claimed

persecution, . . . it must be ‘recognizable’ as a discrete

group by others in the society, . . . it must have . . .

definable boundaries,” and “it must not be amorphous,

overbroad, diffuse, or subjective.” M-E-V-G-, 26 I. & N.

Dec. at 232, 239. Affluence or “class status does not

establish a social group with sufficient particularity.”

Ucelo-Gomez, 509 F.3d at 74. Further, “a well-founded fear

of persecution must be on account of an enumerated ground set

forth in the [Immigration and Nationality Act] and general

crime conditions are not a stated ground.” Melgar de Torres

v. Reno, 191 F.3d 307, 314 (2d Cir. 1999).

Lemus did not offer sufficient evidence that Salvadorans

who spent time in the United States constitute a particular

social group. Although he stated that gangs and criminals

target individuals who have lived in the United States, he

did not corroborate this belief. See Liu v. Holder, 575 F.3d

193, 198 n.5 (2d Cir. 2009) (“[A] failure to corroborate can 4 suffice, without more, to support a finding that an alien has

not met his burden of proof.”). Further, the U.S. State

Department report on El Salvador that Lemus relied on does

not demonstrate that criminals target such individuals or

that Salvadoran society perceives individuals who had lived

in the United States as a discrete group: the report reflected

that gangs have targeted community leaders, police, and

rivals, and stated that there have been no recent political

disappearances.

Lemus also asserted in his amended written statement that

he would be targeted by gangs because he would become a small

business owner if he returned to El Salvador. However,

professions are generally not immutable characteristics and

thus are not grounds for defining a social group. In re

Acosta, 19 I. & N. Dec. 211, 233–34 (B.I.A. 1985), overruled

in part on other grounds by In re Mogharrabi, 19 I. & N. 439

(B.I.A. 1987); see also Vumi v. Gonzales, 502 F.3d 150, 154

(2d Cir. 2007) (stating that Acosta “defines the standard for

what constitutes a particular social group”). Finally,

Lemus’s general fear of criminal conditions in El Salvador

does not suffice to state a claim of future persecution. See

Melgar de Torres, 191 F.3d at 314.

Lemus also argues that he experienced economic 5 persecution in the past and that the “economic deprivation”

in El Salvador is sufficient to establish future persecution.

But Lemus simply testified that he left El Salvador because

of poverty, and that only low-paying work would be available

upon his return. This is not sufficient to establish

economic persecution, which requires the “deliberate

imposition of a substantial economic disadvantage” on account

of a protected ground. Mei Fun Wong v. Holder, 633 F.3d 64,

72 (2d Cir. 2011) (internal quotation marks omitted).

The absence of a nexus to a protected ground also

precludes withholding of removal. See 8 U.S.C.

§ 1231(b)(3)(A); Ramsameachire v. Ashcroft, 357 F.3d 169, 178

(2d Cir. 2004) (withholding of removal requires a showing

that persecution is more likely than not to occur on the basis

of a protected ground). Finally, Lemus did not offer

evidence that he will be subject to torture or that the

Salvadoran government would acquiesce to his torture, as

required for CAT relief. See 8 C.F.R. §§ 1208.16(c),

1208.17.

B. Cancellation of Removal

Our jurisdiction to review the agency’s denial of

cancellation of removal based on an applicant’s failure to

satisfy the hardship requirement is limited to constitutional 6 claims and questions of law. 8 U.S.C. § 1252(a)(2)(B)(i),

(D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–41 (2d Cir.

2008). We consider the hardship factor when the agency’s

decision “is made without rational justification or based on

an erroneous legal standard.” Mendez v. Holder, 566 F.3d

316, 322 (2d Cir. 2009) (internal quotation marks and citation

omitted).

We find no reviewable error here. Cancellation of

removal is available if an applicant demonstrates that his

removal would result in exceptional and extremely unusual

hardship to his U.S. citizen child. 8 U.S.C. § 1229b(b)(1).

“[T]he hardship . . . must be ‘substantially’ beyond the

ordinary hardship that would be expected when a close family

member leaves this country.” In re Monreal-Aguinaga, 23 I.

& N. Dec. 56, 62 (B.I.A. 2001) (quoting H.R. Conf. Rep. No.

104-828, at 213 (1996)). The agency must “consider the ages,

health, and circumstances of qualifying lawful permanent

resident and United States citizen relatives.” Monreal-

Aguinaga, 23 I. & N. Dec. at 63. The agency may also consider

other factors such as the age of the alien, the alien’s length

of residence in and family ties to the United States, the

“political and economic conditions in the country of return,”

and the alien’s involvement in his community in the United 7 States. Id. But “[f]actors relating to the applicant

himself . . . can only be considered insofar as they may

affect the hardship to qualifying relative.” Id. “[A]ll

hardship factors should be considered in the aggregate when

assessing exceptional and extremely unusual hardship.” Id.

at 64.

The agency relied on the correct legal standards for

cancellation of removal and had a rational justification for

its conclusion that Lemus failed to show extreme hardship.

Lemus testified that his son received some writing and speech

therapy services, but did not have an individualized

education program. Neither of his children had medical

issues. Although Lemus testified that he would not be able

to support his children if they accompanied him to El

Salvador, he failed to show that his children would go with

him. His cancellation application indicated that the

children would likely stay in the United States with their

mother. And when asked at his hearing whether his children

would go with him to El Salvador, he gave an equivocal

response. Because Lemus bore the burden of showing that his

children would suffer exceptional and extremely unusual

hardship, his equivocal response does not establish that his

children would accompany him to El Salvador. See 8 U.S.C. 8 §§ 1229a(c)(4)(A)(i) (placing burden of proof on alien to

establish eligibility for relief from removal),

1229b(b)(1)(D) (the alien must “establish[] that removal

would result in exceptional and extremely unusual hardship”).

For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part. 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 of Court