Osorto-Romero v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: June 22, 2018
• Docket: 16-2870
• Status: Unpublished

Opinion

16-2870 Osorto-Romero v. Sessions BIA Straus, IJ A206 429 811/812/813

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 22nd day of June, two thousand eighteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 NIMIA SUYAPA OSORTO-ROMERO, 14 MARIELENA GONZALEZ-OSORTO, 15 STEFANY SUYAPA GONZALEZ-OSORTO, 16 Petitioners, 17 18 v. 16-2870 19 NAC 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONERS: Danielle Robinson Briand, Center 26 for Immigrant Justice, 27 Minneapolis, MN. 28 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Anthony C. 3 Payne, Assistant Director; Liza S. 4 Murcia, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Petitioner Nimia Suyapa Osorto-Romero, and her minor

14 children and derivative applicants Marielena Gonzalez-

15 Osorto and Stefany Suyapa Gonzalez-Osorto (collectively,

16 “Osorto”), natives and citizens of Honduras, seek review of

17 a July 29, 2016, decision of the BIA affirming a July 2,

18 2015, decision of an Immigration Judge (“IJ”) denying

19 Osorto’s application for asylum, withholding of removal,

20 and relief under the Convention Against Torture (“CAT”).

21 In re Nimia Suyapa Osorto-Romero, Marielena Gonzalez-

22 Osorto, Stefany Suyapa Gonzalez-Osorto, Nos. A 206 429

23 811/812/813 (B.I.A. July 29, 2016), aff’g Nos. A 206 429

24 811/812/813 (Immig. Ct. Hartford July 9, 2015).1 We assume

1 Osorto has not challenged the denial of CAT relief in this Court. Accordingly, we do not address that issue. See Yueging Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).

2 1 the parties’ familiarity with the underlying facts and

2 procedural history in this case.

3 Under the circumstances of this case, we have reviewed

4 both the IJ’s and BIA’s decisions “for the sake of

5 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448

6 F.3d 524, 528 (2d Cir. 2006). For asylum and withholding

7 of removal, an “applicant must establish that race,

8 religion, nationality, membership in a particular social

9 group, or political opinion was or will be at least one

10 central reason for” the claimed persecution. 8 U.S.C.

11 §§1158(b)(1)(B)(i) (asylum), 1231(b)(3)(A) (withholding);

12 Matter of C-T-L-, 25 I. & N. Dec. 341, 346 (B.I.A. 2010)

13 (extending the “one central reason” standard to withholding

14 of removal). Osorto seeks relief based on past persecution

15 and a fear of future persecution as a member of a

16 particular social group defined as, “Honduran women who are

17 viewed as gang property by virtue of their gender.” To

18 constitute a particular social group, a group must be “(1)

19 composed of members who share a common immutable

20 characteristic, (2) defined with particularity, and (3)

21 socially distinct within the society in question.” Matter

22 of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see

3 1 also Paloka v. Holder, 762 F.3d 191, 195-97 (2d Cir. 2014)

2 (deferring to that interpretation of the statutory

3 language). An “immutable characteristic” is one that

4 “members of the group either cannot change, or should not

5 be required to change because it is fundamental to their

6 individual identities or consciences.” Paloka, 762 F.3d at

7 195 (quoting In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A.

8 1985)). To be “defined with particularity,” the group must

9 be “‘discrete and have definable boundaries—it must not be

10 amorphous, overbroad, diffuse, or subjective.’” Id. at 196

11 (quoting M-E-V-G-, 26 I. & N. Dec. at 239). And “[t]o be

12 socially distinct, a group . . . must be perceived as a

13 group by society.” M-E-V-G-, 26 I. & N. Dec. at 240.

14 “Courts review de novo the legal determination of whether a

15 group constitutes a ‘particular social group’ under the

16 INA.” Paloka, 762 F.3d at 195.

17 Osorto’s proposed social group, “Honduran women who are

18 viewed as gang property by virtue of their gender,” does

19 not meet the social distinction or particularity

20 requirements. Osorto argues that gangs “project ownership

21 or domination over women living in their territory” and

22 “view women to be their property,” in part as a result of

4 1 the country’s machismo culture in which women are generally

2 viewed as subordinate to men. However, “[a]lthough a

3 persecutor’s perception can be indicative of whether

4 society views a group as distinct, a persecutor’s

5 perception alone is not enough to establish a cognizable

6 social group.” Paloka, 762 F.3d at 196. While the record

7 shows high rates of violence against women, it does not

8 show that women “viewed as gang property” make up a

9 distinct subset of Honduras’s population. Osorto cites

10 characteristics common among women who are most vulnerable

11 to violence—that they are young, poor, and live in urban

12 areas—but this is undermined by the fact that she did not

13 possess these characteristics. Moreover, the record

14 reflected high rates of gang violence against the general

15 population, and did not establish that women are at a

16 greater risk of being targeted by gangs. See Ucelo-Gomez

17 v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm

18 visited upon members of a group is attributable to the

19 incentives presented to ordinary criminals rather than to

20 persecution, the scales are tipped away from considering

21 those people a ‘particular social group.’”); Melgar de

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

5 1 that “general crime conditions” do not constitute

2 persecution on account of a protected ground).2

3 For the foregoing reasons, the petition for review is

4 DENIED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court

2 We do not address the agency’s alternative determination that Osorto was not harmed on account of her membership in her proposed group. 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.”).