Pereanez-Betancur v. Sessions

679 F. App'x 37

• Court: Court of Appeals for the Second Circuit
• Decided: February 15, 2017
• Docket: 15-325
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Jhovany Pereanez-Betaneur, a native and citizen of Colombia, seeks review of a January 9, 2015, decision of the BIA affirming a June 18, 2013, decision of an Immigration Judge (“IJ”) denying Pereanez-Betancur’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jhovany Pereanez-Betancur, No. A201 285 549 (B.I.A. Jan. 9, 2015), aff'g No. A201 285 549 (Immig. Ct. Hartford June 18, 2013). In the circumstances of this case, we review the IJ’s decision as modified by the BIA, i.e., assuming Pereanez-Betancur’s credibility. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). In so doing, we review factual findings only to determine whether they are supported by substantial evidence, and conclusions of law de novo. See Niang v. Holder, 762 F.3d 251, 253 (2d Cir. 2014).

I. Persecution Based on Social . Group

The agency reasonably concluded that Pereanez-Betaneur failed to establish a nexus to a protected ground, which he alleged was a social group comprised of Colombian males between the ages of 12 and 25 who cooperate,with Colombian authorities.in resisting Fuerzas Armadas Re-volucionarias de Colombia (“FARC”).

To establish eligibility for asylum and withholding of removal based on membership in a “particular social group,” an applicant must show past persecution or a well-founded fear or likelihood of future persecution on account of his membership in that group. See 8 U.S.C. § 1101(a)(42)(A); Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010). To be cognizable, a social group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Matter of W-G-R-, 26 I. & N. Dec. 208, 212-18 (B.I.A. 2014). An “immutable characteristic” is one that members of the group “either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (internal quotation marks omitted). “‘Particularity’ refers to whether the group is ‘sufficiently distinct’ that it would constitute ‘a discrete class of persons.’ ” Matter of W-G-R-, 26 I. & N. Dec. at 210 (quoting Matter of S-E-G-, 24 I. & N. Dec. 579, 584 (B.I.A. 2008)). Social distinction requires that the shared traits that characterize the social group be sufficient for the group to “be perceived as a group by society.” Matter of M-E-V-G-, 26 I. & N. Dec. at 240; see Matter of W-G-R-, 26 I. & N. Dec. at 216; Paloka v. Holder, 762 F.3d 191, 196 (2nd Cir. 2014) (“[W]hat matters is whether society as a whole views the group as socially distinct, not the persecutor’s perception.”). “[Bjroadly-based characteristics such as youth and gender” will not by themselves suffice to define a particular social group. Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991). Rather, the shared traits must be “recognizable as a discrete group by others in the society.” Paloka, 762 F.3d at 196 (internal quotation marks omitted). “Per-secutory conduct aimed at a social group cannot alone define the group, which must exist independently of the persecution.” Id. (quoting Matter of W-G-R-, 26 I. & N. Dec. at 215). That is because, while “perception of the applicant’s persecutors may be relevant” in determining whether society views the group as distinct, it “is not itself enough to make a group socially distinct” because “the immutable characteristic of their shared past experience” can exist “independent of the persecution.” Matter of M-E-V-G-, 26 I. & N. Dec. at 242-43.

The agency reasonably concluded that Pereanez-Betaneur failed to establish persecution based on membership in such a social group. Specifically, Pereanez-Be-tancur submitted no evidence that young Colombian males who cooperated with the government and resisted FARC are viewed as a particular and socially distinct group by Colombian society or that FARC is more likely to target such men. Indeed, FARC allegedly targeted Pereanez-Betancur before he reported its activities to the police. In any event, persons targeted by a common adversary do not thereby constitute a particular and distinct social group. Rather, the evidence must show that men were targeted because they were members of such a group. See Matter of M-E-V-G-, 26 I. & N. Dec. at 242-43; see generally Salazar v. Lynch, 645 Fed.Appx. 53, 56 (2d Cir. 2016) (concluding young Guatemalan men who resist or reject forcible gang membership lacked requisite particularity and social visibility); Oliva-Flores v. Holder, 477 Fed.Appx. 774, 775-76 (2d Cir. 2012) (same); Paucar-Sarmiento v. Holder, 482 Fed.Appx. 656, 658-59 (2d Cir. 2012) (same regarding young Ecuadorian men). The country conditions evidence reflects that FARC recruits young men in Colombia, but does not limit its retaliatory targets to that group, or even to a group that cooperates with authorities.

On this record, we discern no error in the agency’s conclusion that Pereanez-Be-tancur failed to demonstrate persecution based on membership in a sufficiently particular or socially distinct group.

II. CAT Relief

Pereanez-Betaneur argues that he is eligible for CAT relief because FARC members came to his home and threatened to kill him and because the Colombian government remains willfully blind to FARC’s activities.

To obtain CAT relief, an applicant must show that he would more likely than not be tortured by or with the acquiescence of government officials in the country of removal. See 8 C.F.R. § 1208.16(c); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004). As we held in Khouzam, “acquiescence” requires that government officials either knew of or remained willfully blind to acts of torture. Id. at 171. The agency reasonably concluded that Pereanez-Betancur failed to carry this burden. While he submitted evidence that FARC commits acts of violence against civilians, recruits young boys into its ranks, and retaliates against those who report FARC activities to the police, that evidence also shows that the Colombian government has taken considerable steps to combat and weaken FARC. On this record, a reasonable fact finder would not be compelled to conclude that Pereanez-Betancur is likely to be tortured with the knowledge or willful blindness of the Colombian government. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005) (reviewing denial of CAT relief for substantial evidence); Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Decisions as to ... which of competing inferences to draw are entirely within the province of the trier of fact.” (internal quotation marks omitted)). Accordingly, we identify no error in the agency’s denial of CAT relief.

For the foregoing reasons, the petition for review is DENIED.