20-1447 Lopez-Lopez v. Garland BIA Brennan, IJ A208 293 749
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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 9th day of November, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 STEVEN J. MENASHI, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 GLORIA LOPEZ-LOPEZ, 14 Petitioner, 15 16 v. 20-1447 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Reuben S. Kerben, Kew Gardens, 24 NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Margaret Perry, 28 Senior Litigation Counsel; Craig 29 W. Kuhn, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Gloria Lopez-Lopez, a native and citizen of
9 El Salvador, seeks review of an April 2, 2020 decision of the
10 BIA affirming a July 17, 2018 decision of an Immigration Judge
11 (“IJ”) that denied her application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Gloria Lopez-Lopez, No. A 208 293 749 (B.I.A.
14 Apr. 2, 2020), aff’g No. A 208 293 749 (Immig. Ct. N.Y. City
15 July 17, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the IJ’s decision as modified by the
18 BIA and consider only the grounds for the IJ’s decision that
19 the BIA relied on. We therefore do not address the IJ’s
20 adverse credibility determination. 1 See Xue Hong Yang v.
1 The BIA stated that it “affirm[ed] the [IJ’s] decision for the reasons set forth by the [IJ],” but it did not explicitly address credibility. Although it is unclear if the BIA intended to rely on the adverse credibility determination, the other grounds it specifically discussed were sufficient
2 1 U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). The
2 applicable standards of review are well established. See
3 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (reviewing
4 factual findings for substantial evidence and questions of
5 law and application of law to fact de novo).
6 The Government argues that we should dismiss the petition
7 because Lopez-Lopez’s brief does not satisfy the requirements
8 of Federal Rule of Appellate Procedure 28(a). We agree that
9 Lopez-Lopez’s counsel did not fully comply with the rule, but
10 the brief otherwise raises identifiable arguments for review,
11 and we therefore decline to dismiss on that basis. See Sioson
12 v. Knights of Columbus, 303 F.3d 458, 459–60 (2d Cir. 2002)
13 (noting that the absence of a statement of facts may be
14 “overlooked” in favor of ruling on the merits); see also New
15 York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (“[W]e have
16 expressed a strong preference for resolving disputes on the
17 merits.”) (quotation marks omitted).
18 An asylum applicant has the burden of establishing either
19 past persecution or a well-founded fear of persecution and
bases for the agency’s decision. Accordingly, we decline to rely on the credibility ruling. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 3 1 that “race, religion, nationality, membership in a particular
2 social group, or political opinion was or will be at least
3 one central reason for” the claimed persecution. 8 U.S.C.
4 § 1158(b)(1)(B)(i) (asylum); see also 8 C.F.R. § 1208.13(b).
5 A past persecution claim can be based on harm other than
6 “threats to life or freedom . . . including non-life-
7 threatening violence and physical abuse.” Ivanishvili v.
8 U.S. Dep’t of Just., 433 F.3d 332, 341 (2d Cir. 2006)
9 (quotation marks, brackets, and citation omitted); see also
10 Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006).
11 However, the harm must be sufficiently severe, rising above
12 “mere harassment.” Ivanishvili, 433 F.3d at 341.
13 With these principles in mind, we conclude that
14 substantial evidence supports the agency’s determination that
15 Lopez-Lopez did not demonstrate past persecution or a well-
16 founded fear of future persecution on account of a protected
17 ground. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b).
18 Lopez-Lopez testified that she witnessed a gang killing
19 outside of her home and then received threats from gang
20 members, first in 2012 and then again after returning to El
21 Salvador in 2015. She contends that these threats
22 constituted persecution based on her membership in a
23 particular social group. To constitute a particular social 4 1 group, a group must be “(1) composed of members who share a
2 common immutable characteristic, (2) defined with
3 particularity, and (3) socially distinct within the society
4 in question.” Paloka, 762 F.3d at 196 (quoting Matter of M-
5 E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). “To be
6 socially distinct, a group . . . must be perceived as a group
7 by society.” Id. (quoting Matter of M-E-V-G-, 26 I. & N.
8 Dec. at 240).
9 The agency did not err in rejecting Lopez-Lopez’s
10 proposed particular social group of “young people who resist
11 becoming members of Mara” as lacking in particularity and
12 social distinction. See Gomez v. INS, 947 F.2d 660
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20-1447 Lopez-Lopez v. Garland BIA Brennan, IJ A208 293 749
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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 9th day of November, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 STEVEN J. MENASHI, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 GLORIA LOPEZ-LOPEZ, 14 Petitioner, 15 16 v. 20-1447 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Reuben S. Kerben, Kew Gardens, 24 NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Margaret Perry, 28 Senior Litigation Counsel; Craig 29 W. Kuhn, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Gloria Lopez-Lopez, a native and citizen of
9 El Salvador, seeks review of an April 2, 2020 decision of the
10 BIA affirming a July 17, 2018 decision of an Immigration Judge
11 (“IJ”) that denied her application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Gloria Lopez-Lopez, No. A 208 293 749 (B.I.A.
14 Apr. 2, 2020), aff’g No. A 208 293 749 (Immig. Ct. N.Y. City
15 July 17, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the IJ’s decision as modified by the
18 BIA and consider only the grounds for the IJ’s decision that
19 the BIA relied on. We therefore do not address the IJ’s
20 adverse credibility determination. 1 See Xue Hong Yang v.
1 The BIA stated that it “affirm[ed] the [IJ’s] decision for the reasons set forth by the [IJ],” but it did not explicitly address credibility. Although it is unclear if the BIA intended to rely on the adverse credibility determination, the other grounds it specifically discussed were sufficient
2 1 U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). The
2 applicable standards of review are well established. See
3 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (reviewing
4 factual findings for substantial evidence and questions of
5 law and application of law to fact de novo).
6 The Government argues that we should dismiss the petition
7 because Lopez-Lopez’s brief does not satisfy the requirements
8 of Federal Rule of Appellate Procedure 28(a). We agree that
9 Lopez-Lopez’s counsel did not fully comply with the rule, but
10 the brief otherwise raises identifiable arguments for review,
11 and we therefore decline to dismiss on that basis. See Sioson
12 v. Knights of Columbus, 303 F.3d 458, 459–60 (2d Cir. 2002)
13 (noting that the absence of a statement of facts may be
14 “overlooked” in favor of ruling on the merits); see also New
15 York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (“[W]e have
16 expressed a strong preference for resolving disputes on the
17 merits.”) (quotation marks omitted).
18 An asylum applicant has the burden of establishing either
19 past persecution or a well-founded fear of persecution and
bases for the agency’s decision. Accordingly, we decline to rely on the credibility ruling. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 3 1 that “race, religion, nationality, membership in a particular
2 social group, or political opinion was or will be at least
3 one central reason for” the claimed persecution. 8 U.S.C.
4 § 1158(b)(1)(B)(i) (asylum); see also 8 C.F.R. § 1208.13(b).
5 A past persecution claim can be based on harm other than
6 “threats to life or freedom . . . including non-life-
7 threatening violence and physical abuse.” Ivanishvili v.
8 U.S. Dep’t of Just., 433 F.3d 332, 341 (2d Cir. 2006)
9 (quotation marks, brackets, and citation omitted); see also
10 Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006).
11 However, the harm must be sufficiently severe, rising above
12 “mere harassment.” Ivanishvili, 433 F.3d at 341.
13 With these principles in mind, we conclude that
14 substantial evidence supports the agency’s determination that
15 Lopez-Lopez did not demonstrate past persecution or a well-
16 founded fear of future persecution on account of a protected
17 ground. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b).
18 Lopez-Lopez testified that she witnessed a gang killing
19 outside of her home and then received threats from gang
20 members, first in 2012 and then again after returning to El
21 Salvador in 2015. She contends that these threats
22 constituted persecution based on her membership in a
23 particular social group. To constitute a particular social 4 1 group, a group must be “(1) composed of members who share a
2 common immutable characteristic, (2) defined with
3 particularity, and (3) socially distinct within the society
4 in question.” Paloka, 762 F.3d at 196 (quoting Matter of M-
5 E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). “To be
6 socially distinct, a group . . . must be perceived as a group
7 by society.” Id. (quoting Matter of M-E-V-G-, 26 I. & N.
8 Dec. at 240).
9 The agency did not err in rejecting Lopez-Lopez’s
10 proposed particular social group of “young people who resist
11 becoming members of Mara” as lacking in particularity and
12 social distinction. See Gomez v. INS, 947 F.2d 660, 664 (2d
13 Cir. 1991) (“Possession of broadly-based characteristics such
14 as youth and gender will not by itself endow individuals with
15 membership in a particular group.”); Matter of S-E-G-, 24 I.
16 & N. Dec. 579, 584-87 (B.I.A. 2008) (proposed groups of
17 “Salvadoran youths who have resisted gang recruitment” are
18 neither particular nor distinct). Lopez-Lopez did not
19 establish shared traits that would identify members of her
20 group to Salvadoran society or produce evidence suggesting
21 that Salvadoran society regards youth resisting gang
22 membership as a distinct social group. See Paloka, 762 F.3d
23 at 196 (“Persecutory conduct aimed at a social group cannot 5 1 alone define the group, which must exist independently of the
2 persecution.”) (quotation marks omitted).
3 Nor is there evidence that the gang targeted Lopez-Lopez
4 based on either her membership in the group or a political
5 opinion of hers, as opposed to its general criminal motives.
6 See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)
7 (“When the harm visited upon members of a group is
8 attributable to the incentives presented to ordinary
9 criminals rather than to persecution, the scales are tipped
10 away from considering those people a ‘particular social
11 group’ within the meaning of the INA.”); see also Hernandez-
12 Chacon v. Barr, 948 F.3d 94, 101–02 (2d Cir. 2020) (upholding
13 BIA’s denial of social group claim because evidence did not
14 show that Salvadoran society perceived women who rejected
15 advances of gang members as being at greater risk than anyone
16 else who did not “comply with a gang member’s demands”).
17 For the same reasons, we conclude that Lopez-Lopez has
18 failed to establish her entitlement to withholding of
19 removal, which involves a higher burden of proof than does
20 entitlement to asylum. See Ramsameachire v. Ashcroft, 357
21 F.3d 169,178 (2004) (recognizing that because the withholding
22 of removal analysis involves a higher burden of proof, an
23 alien who fails to establish entitlement to asylum 6 1 necessarily fails to establish entitlement to withholding of
2 removal).
3 We do not reach Lopez-Lopez’s CAT claim because she does
4 not advance any arguments in support of it in her brief. See
5 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.
6 2005) (deeming CAT claim abandoned where petitioner failed to
7 address it in the opening brief).
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 12 FOR THE COURT: 13 Catherine O=Hagan Wolfe, Clerk of Court 14