NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 09-3170 ___________
NOELLY NICOLAS, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A97 536 795 Immigration Judge: Mirlande Tadal ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) May 5, 2010 Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: May 07, 2010) ___________
OPINION ___________
PER CURIAM
Noelly Nicolas petitions for review of an order of the Board of Immigration
Appeals (“BIA”), which dismissed her appeal from an Immigration Judge’s (“IJ”) final
removal order. We will deny the petition for review. I.
Nicolas is a native and citizen of Haiti. She came to the United States in October
2007 with a transit visa, but she did not have a ticket or money to go on to her intended
destination, Brazil. When questioned, she asserted that she had a fear of returning to
Haiti, and she was placed in immigration proceedings. She was charged with being
removable for seeking entry through fraud or misrepresenting a material fact, and for not
being in possession of a valid immigrant visa.1 She applied for asylum, withholding of
removal and protection under the Convention Against Torture (“CAT”).
Nicolas sought relief based on an incident that occurred in October 2005 when she
was sixteen years old. She was walking to a friend’s home to spend the weekend, when
she was abducted by five armed, masked men, and was forced into a car. They
blindfolded her and tied her hands together and took her to an unknown location where
she was kept for two and a half days. She was pushed, kicked and beaten because she
refused to do what they wanted. They beat her with lamps, arms and feet, and burned her
with a plastic object on her arm. She still retains a scar from the burn. On the third day,
they put her back in the car, drove for a little time, and pushed her out of the car. They
told her if she told anyone they would find her and harm her again. She walked home and
told her mother that she was burned when she was cooking with her friend. Her mother
took her to a hospital where she was treated and released. She lied to her mother because
1 She was eventually found removable only on the latter ground.
2 she did not want her mother to report the incident to the police or share the information
with other people. She did not report the incident to the police, because she believed the
police are involved in kidnapping.
Nicolas testified that she believed she was kidnapped because she was “a
defenseless little girl,” and because some people “are frustrated that . . . they cannot enjoy
the opportunity that some people do.” A.R. 122-23. She was also aware of two other
young female students who had been kidnapped. A.R. 123-24. Her asylum application
noted that she sought relief as a member of a particular social group; as a “student[] and
young girl[].” A.R. 229.
The IJ found that Nicolas testified credibly, but denied relief because she had “not
established that she was abducted on account of at least one of the central reasons
enumerated in the Act.” A.R. 66. The IJ found that Nicolas had been a victim of crime,
and that “there are widespread kidnappings of citizen [sic] of all societal strata by armed
and organized criminal elements in Haiti . . . and one particular group is not targeted over
another group.” A.R. 68. The IJ therefore denied Nicolas asylum and withholding of
removal. The IJ also found that Nicolas had failed to show that she had been tortured in
the past or would likely suffer torture in the future. A.R. 70.
The BIA agreed that the record did not support a conclusion that kidnappings in
Haiti focused on any particular group, “let alone a particular social group made up of
young female students.” A.R. 4. The BIA affirmed the IJ’s finding “that the respondent
3 did not prove that her membership in a particular social group was or will be at least one
central reason for the persecution.” Id. The BIA also found her ineligible for relief under
the CAT, as she had “not shown that anyone in the Haitian government would
affirmatively consent or acquiesce to her torture . . . .” Id. Nicolas filed a timely petition
for review.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where,
as here, the BIA adopted some of the findings of the IJ and made additional findings, we
review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney General,
527 F.3d 330, 339 (3d Cir. 2008). To be granted asylum as a refugee, an applicant must
establish that she is unable or unwilling to return to her homeland “because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
To be entitled to withholding of removal, an applicant must prove that her “life or
freedom would be threatened in that country because of [her] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3).
Thus, to be eligible for asylum or withholding of removal, it is not enough for Nicolas to
show that she suffered persecution in the past; she would also need to show “that the
persecution was on account of [her] . . . membership in a particular social group . . . .”
Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003). Pursuant to the REAL ID Act of
4 2005, the “applicant must establish that . . . membership in a particular social group . . .
was or will be at least one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i) [INA § 208(b)(1)(B)(i)]. “[A]sylum may not be granted if a protected
ground is only an incidental, tangential, or superficial reason for persecution of an asylum
applicant.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009) (internal
quotation and citation omitted).
As noted, Nicolas argued that she was and would be persecuted because of her
membership in the particular social group of young, female students. In Matter of Acosta,
19 I. & N. Dec. 211, 233 (1985), the BIA suggested that “sex” might be an innate
characteristic that could link the members of a “particular social group.” But
“[p]ossession of broadly-based characteristics such as youth and gender will not by itself
endow individuals with membership in a particular group.” Lukwago, 329 F.3d at 172.
Further, it is not clear that Nicolas’s attackers were motivated by her gender, her youth, or
her status as a student. See Niang v.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 09-3170 ___________
NOELLY NICOLAS, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A97 536 795 Immigration Judge: Mirlande Tadal ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) May 5, 2010 Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: May 07, 2010) ___________
OPINION ___________
PER CURIAM
Noelly Nicolas petitions for review of an order of the Board of Immigration
Appeals (“BIA”), which dismissed her appeal from an Immigration Judge’s (“IJ”) final
removal order. We will deny the petition for review. I.
Nicolas is a native and citizen of Haiti. She came to the United States in October
2007 with a transit visa, but she did not have a ticket or money to go on to her intended
destination, Brazil. When questioned, she asserted that she had a fear of returning to
Haiti, and she was placed in immigration proceedings. She was charged with being
removable for seeking entry through fraud or misrepresenting a material fact, and for not
being in possession of a valid immigrant visa.1 She applied for asylum, withholding of
removal and protection under the Convention Against Torture (“CAT”).
Nicolas sought relief based on an incident that occurred in October 2005 when she
was sixteen years old. She was walking to a friend’s home to spend the weekend, when
she was abducted by five armed, masked men, and was forced into a car. They
blindfolded her and tied her hands together and took her to an unknown location where
she was kept for two and a half days. She was pushed, kicked and beaten because she
refused to do what they wanted. They beat her with lamps, arms and feet, and burned her
with a plastic object on her arm. She still retains a scar from the burn. On the third day,
they put her back in the car, drove for a little time, and pushed her out of the car. They
told her if she told anyone they would find her and harm her again. She walked home and
told her mother that she was burned when she was cooking with her friend. Her mother
took her to a hospital where she was treated and released. She lied to her mother because
1 She was eventually found removable only on the latter ground.
2 she did not want her mother to report the incident to the police or share the information
with other people. She did not report the incident to the police, because she believed the
police are involved in kidnapping.
Nicolas testified that she believed she was kidnapped because she was “a
defenseless little girl,” and because some people “are frustrated that . . . they cannot enjoy
the opportunity that some people do.” A.R. 122-23. She was also aware of two other
young female students who had been kidnapped. A.R. 123-24. Her asylum application
noted that she sought relief as a member of a particular social group; as a “student[] and
young girl[].” A.R. 229.
The IJ found that Nicolas testified credibly, but denied relief because she had “not
established that she was abducted on account of at least one of the central reasons
enumerated in the Act.” A.R. 66. The IJ found that Nicolas had been a victim of crime,
and that “there are widespread kidnappings of citizen [sic] of all societal strata by armed
and organized criminal elements in Haiti . . . and one particular group is not targeted over
another group.” A.R. 68. The IJ therefore denied Nicolas asylum and withholding of
removal. The IJ also found that Nicolas had failed to show that she had been tortured in
the past or would likely suffer torture in the future. A.R. 70.
The BIA agreed that the record did not support a conclusion that kidnappings in
Haiti focused on any particular group, “let alone a particular social group made up of
young female students.” A.R. 4. The BIA affirmed the IJ’s finding “that the respondent
3 did not prove that her membership in a particular social group was or will be at least one
central reason for the persecution.” Id. The BIA also found her ineligible for relief under
the CAT, as she had “not shown that anyone in the Haitian government would
affirmatively consent or acquiesce to her torture . . . .” Id. Nicolas filed a timely petition
for review.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where,
as here, the BIA adopted some of the findings of the IJ and made additional findings, we
review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney General,
527 F.3d 330, 339 (3d Cir. 2008). To be granted asylum as a refugee, an applicant must
establish that she is unable or unwilling to return to her homeland “because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
To be entitled to withholding of removal, an applicant must prove that her “life or
freedom would be threatened in that country because of [her] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3).
Thus, to be eligible for asylum or withholding of removal, it is not enough for Nicolas to
show that she suffered persecution in the past; she would also need to show “that the
persecution was on account of [her] . . . membership in a particular social group . . . .”
Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003). Pursuant to the REAL ID Act of
4 2005, the “applicant must establish that . . . membership in a particular social group . . .
was or will be at least one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i) [INA § 208(b)(1)(B)(i)]. “[A]sylum may not be granted if a protected
ground is only an incidental, tangential, or superficial reason for persecution of an asylum
applicant.” Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d Cir. 2009) (internal
quotation and citation omitted).
As noted, Nicolas argued that she was and would be persecuted because of her
membership in the particular social group of young, female students. In Matter of Acosta,
19 I. & N. Dec. 211, 233 (1985), the BIA suggested that “sex” might be an innate
characteristic that could link the members of a “particular social group.” But
“[p]ossession of broadly-based characteristics such as youth and gender will not by itself
endow individuals with membership in a particular group.” Lukwago, 329 F.3d at 172.
Further, it is not clear that Nicolas’s attackers were motivated by her gender, her youth, or
her status as a student. See Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10 th Cir.
2005) (focus should not be on whether gender can constitute social group, but on whether
“members of that group are sufficiently likely to be persecuted that one could say that
they are persecuted ‘on account of’ their membership”); see also Gomez-Zuluaga, 527
F.3d at 345 n.10 (“It is not necessary for us to determine whether this is a cognizable
‘particular social group’ under the statute, because there is substantial evidence in the
record to conclude that [the perpetrator] was not motivated by Petitioner’s membership in
5 a particular social group[.]). Indeed the evidence in the record showed that kidnappings
were widespread in Haiti and not limited to young, female students.
Because substantial evidence supports the BIA’s conclusion that Nicolas did not
meet her burden of showing that she suffered persecution on account of a protected
ground, we may not grant the petition with regards to Nicolas’s claims for asylum and
withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003)
(alien who is unable to establish refugee status for the purpose of asylum will be unable to
establish right to withholding of removal).
III.
The applicant for relief under the CAT bears the burden of proving that it is more
likely than not that she would be tortured if removed to the proposed country of removal.
8 C.F.R. § 1208.16(c)(2); see also Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.
2005). For an act to constitute torture under the CAT, it must be: (1) an act causing
severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed
purpose; (4) by or at the instigation of or with the consent or acquiescence of a public
official who has custody or control of the victim; and (5) not arising from lawful
sanctions. Id. at 213; see also 8 C.F.R. § 1208.18(a)(1). The requirement that the torture
be intentionally inflicted requires a showing that the “prospective torturer will have the
goal or purpose of inflicting severe pain or suffering” on the petitioner. Pierre v. Att'y
Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc). The “acquiescence of a public official”
6 requirement does not require actual knowledge of torturous conduct, but can be satisfied
by a showing that the government is willfully blind to the conduct in question or has
breached its legal responsibility to prevent it. Silva-Rengifo v. Att’y Gen., 473 F.3d 58,
70 (3d Cir. 2007); Gomez- Zuluaga, 527 F.3d at 350.
We agree with the BIA that Nicolas failed to show that she is likely to be tortured
in Haiti. Although country reports indicate that kidnapping is widespread, there is no
indication that anyone will kidnap Nicolas with the “specific intent” to torture her. If
there is no evidence that the “prospective torturer will have the goal or purpose of
inflicting severe pain or suffering,” the specific intent requirement of CAT is not fulfilled.
Pierre, 528 F.3d at 190. This showing is required even when the conditions in the country
of removal are such that removal is likely to result in harm to the petitioner. Id. at 191
(denying CAT relief where petitioner was likely to experience pain and suffering due to
poor conditions in Haitian prisons, but failed to show that Haitian officials had the
specific intent to inflict severe pain or suffering by placing him in detention upon
removal). It appears that Nicolas was the victim of a random criminal act, and was not
singled out for the specific purpose of being tortured.
For the foregoing reasons, we will deny the petition for review.