Bejarano-Martinez v. Garland

Opinion

19-3551 Bejarano-Martinez v. Garland BIA

Vomacka, IJ

A206 630 062

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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of April, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 ROBERT D. SACK, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 GLADYS EMILIA BEJARANO-MARTINEZ, 14 Petitioner, 15 16 v. 19-3551 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Bruno Joseph Bembi, Esq., 24 Hempstead, NY. 25 26 FOR RESPONDENT: Ethan Davis, Acting Assistant 27 Attorney General; Ernesto H. 28 Molina, Jr., Deputy Director;

1 Nancy N. Safavi, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Gladys Emilia Bejarano-Martinez, a native and 10 citizen of Honduras, seeks review of an October 1, 2019, 11 decision of the BIA affirming a February 26, 2018, decision 12 of an Immigration Judge (“IJ”), denying asylum, withholding 13 of removal, and relief under the Convention Against Torture 14 (“CAT”). In re Gladys Emilia Bejarano-Martinez, No. A 206 15 630 062 (B.I.A. Oct. 1, 2019), aff’g No. A 206 630 062 (Immig. 16 Ct. N.Y. City Feb. 26, 2018). We assume the parties’ 17 familiarity with the underlying facts and procedural history. 18 We have reviewed both the IJ’s and the BIA’s opinions 19 “for the sake of completeness.” Wangchuck v. Dep’t of 20 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The 21 applicable standards of review are well established. See 22 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 23 (2d Cir. 2014) (reviewing factual findings for substantial

3

1 evidence and questions of law, including whether a proposed 2 group is cognizable, de novo). We find no error in the 3 agency’s denial of asylum, withholding of removal, and CAT 4 relief. 5 To qualify for asylum and withholding of removal, an 6 applicant must establish either past persecution or a fear of 7 future persecution and that “race, religion, nationality, 8 membership in a particular social group, or political opinion 9 was or will be at least one central reason for persecuting 10 the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id. 11 § 1231(b)(3)(A), (C); Matter of C–T–L–, 25 I. & N. Dec. 341, 12 348 (B.I.A. 2010) (concluding that one central reason 13 standard also applies to withholding of removal). 14 The agency reasonably concluded that Bejarano-Martinez 15 did not experience conduct rising to the level of past 16 persecution because she alleged only that she was followed on 17 one occasion and received a single threatening telephone call 18 from a gang member who was interested in her daughter. See 19 Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 20 2006) (explaining that showing of past persecution requires 21 more than “‘unfulfilled’ threats”); Ivanishvili v. U.S. Dep’t

4

1 of Justice, 433 F.3d 332, 341 (2d Cir. 2006)(“persecution 2 does not encompass mere harassment”). Accordingly, Bejarano- 3 Martinez had the burden to establish a well-founded fear of 4 future persecution based on a protected ground, in this case 5 her proposed particular social group of “family members of 6 young Honduran women who refuse to be a victim of violent 7 sexual predation.” See 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 8 C.F.R. § 1208.13(b). A particular social group must be 9 “(1) composed of members who share a common immutable 10 characteristic, (2) defined with particularity, and 11 (3) socially distinct within the society in question.” 12 Paloka, 762 F.3d at 196. 13 The agency did not err in concluding that the proposed 14 group was not cognizable. Bejarano-Martinez did not show 15 that her proposed group was socially distinct within Honduran 16 society. In determining “social distinction what matters is 17 whether society as a whole views a group as socially distinct, 18 not the persecutor’s perception.” Id. “Persecutory conduct 19 . . . cannot alone define the group, which must exist 20 independently of the persecution.” Id. Bejarano-Martinez 21 relied on news articles about gangs forcibly recruiting

5

1 adolescent girlfriends in Central America, specifically in El 2 Salvador and Guatemala, but not Honduras. In addition to not 3 specifically addressing recruitment in Honduras, this 4 evidence did not address whether Honduran society considers 5 family members of these girls as a distinct group or that the 6 proposed group exists independently of the alleged harm. See 7 id. Moreover, where, as here, the feared harm “is 8 attributable to the incentives presented to ordinary 9 criminals rather than to persecution, the scales are tipped 10 away from” finding a cognizable social group. Ucelo-Gomez 11 v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007); see also Melgar 12 de Torres v. Reno, 191 F.3d 307, 313–14 (2d Cir. 1999) 13 (“act[s] of random violence” and general crime conditions” 14 are not bases for asylum). 15 The agency also did not err in denying Bejarano- 16 Martinez’s CAT claim. She had the burden to prove that she 17 would “more likely than not” be tortured by gang members. 8 18 C.F.R. § 1208.16(c)(2). Relevant considerations are evidence 19 of past torture and the ability to relocate. Id. § 1208.16 20 (c)(3). Bejarano-Martinez was not tortured in the past and 21 briefly relocated without incident to another town in

6

1 Honduras. Given this evidence, she did not show torture was 2 more likely than not. See Savchuck v. Mukasey, 518 F.3d 119, 3 123 (2d Cir. 2008) (CAT applicant “will never be able to show 4 . . . a more likely than not chance of torture if one link in 5 the chain cannot be shown to be more likely than not to occur. 6 It is the likelihood of all necessary events coming together 7 that must more likely than not lead to torture, and a chain 8 of events cannot be more likely than its least likely link.” 9 (internal quotation marks omitted)). 10 For the foregoing reasons, the petition for review is 11 DENIED. All pending motions and applications are DENIED and 12 stays VACATED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court