Vivar Lliguin v. Rosen
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Opinion
18-3449 Vivar Lliguin v. Rosen BIA Laforest, IJ A206 445 168 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 13th day of January, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 MARIA OLGA VIVAR LLIGUIN, 14 Petitioner, 15 16 v. 18-3449 17 NAC 18 JEFFREY A. ROSEN, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael Anthony Borja, Esq., 24 Borja Law Firm P.C., Jackson 25 Heights, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Keith 29 I. McManus , Assistant Director; 1 Nelle M. Seymour, 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 Maria Olga Vivar Lliguin, a native and citizen
10 of Ecuador, seeks review of an October 31, 2018, decision of
11 the BIA affirming an October 27, 2017, decision of an
12 Immigration Judge (“IJ”) denying asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). 1 In re Maria Olga Vivar Lliguin, No. A 206 445 168
15 (B.I.A. Oct. 31, 2018), aff’g No. A 206 445 168 (Immig. Ct.
16 N.Y. City Oct. 27, 2017). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this case.
18 We have reviewed the decision of the IJ as supplemented
19 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
20 Cir. 2005). The applicable standards of review are well
21 established. See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,
22 762 F.3d 191, 195 (2d Cir. 2014) (reviewing factual findings
1 Vivar Lliguin does not challenge the denial of her CAT claim. 2 1 for substantial evidence and questions of law, including
2 whether a proposed particular social group is cognizable, de
3 novo); Gjolaj v. Bureau of Citizenship & Immigration Servs.,
4 468 F.3d 140, 143 (2d Cir. 2006) (reviewing nexus
5 determination for substantial evidence). We find no error
6 in the agency’s decision.
7 An applicant for asylum and withholding of removal must
8 establish past persecution or a well-founded fear of future
9 persecution and that “race, religion, nationality, membership
10 in a particular social group, or political opinion was or
11 will be at least one central reason for persecuting the
12 applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also id.
13 § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(1), (2). A cognizable
14 particular social group is one that has a “a common immutable
15 characteristic,” is “defined with particularity,” and is
16 “socially distinct within the society in question.” Paloka,
17 762 F.3d at 196 (quoting Matter of M–E–V–G–, 26 I. & N. Dec.
18 227, 237 (B.I.A. 2014)). An “immutable characteristic” is
19 one that members of the group cannot change or “should not be
20 required to change because it is fundamental to their
21 individual identities or consciences.” Matter of Acosta, 19
3 1 I. & N. Dec. 211, 233 (B.I.A. 1985) (citing as examples sex,
2 color, kinship ties, or shared past experiences, such as
3 former military leadership or land ownership). A
4 persecutor’s perspective and the persecution itself may be
5 indicators of a group, but “in determining particularity and
6 social distinction what matters is whether society as a whole
7 views a group as socially distinct, not the persecutor’s
8 perception.” Paloka, 762 F.3d at 196. The social group must
9 have well-defined boundaries, and “must not be amorphous,
10 overbroad, diffuse, or subjective.” Id.
11 Before the IJ, Vivar Lliguin defined her proposed social
12 group as “individuals that are resisting gang membership or
13 who are protecting individuals who are resisting gang
14 membership.” The agency did not err in determining that this
15 group was not cognizable. See Melgar de Torres v. Reno, 191
16 F.3d 307, 314 (2d Cir. 1999) (“[A] well-founded fear of
17 persecution must be on account of an enumerated ground set
18 forth in the Act, and general crime conditions are not a
19 stated ground.”); Matter of S-E-G-, 24 I. & N. Dec. 579, 586-
20 88 (B.I.A. 2008) (concluding that Salvadoran youths who
21 resist gang recruitment are not a cognizable social group
4 1 because they do not share recognizable and discrete
2 attributes). This initial proposed group covered large
3 swaths of the population, including any young person who
4 resisted joining a gang and any family, member, friend, or
5 member of the community who in any way tried to protect such
6 individuals. Accordingly, IJ did not err in finding the
7 proposed group too amorphous. Vivar Lliguin does not contest
8 this conclusion on appeal.
9 Vivar Lliguin instead argues that the narrower social
10 group that she articulated before the BIA—mothers of
11 prospective gang members—is cognizable. The BIA was not
12 required to consider this narrower formulation because Vivar
13 Lliguin failed to raise it before the IJ. See Prabhudial v.
14 Holder, 780 F.3d 553, 555 (2d Cir. 2015). Moreover, Vivar
15 Lliguin’s argument is misplaced. She relies on Matter of L-
16 E-A-, 27 I. & N. Dec. 40 (B.I.A. 2018) to argue that family
17 membership can be a sufficient basis for feared persecution,
18 without a nexus to an additional protected ground. However,
19 the Attorney General reversed Matter of L-E-A- in part,
20 emphasizing that “an alien’s family-based group will not
21 constitute a particular social group unless it has been shown
5 1 to be socially distinct in the eyes of its society, not just
2 those of its alleged persecutor.” Matter of L-E-A-, 27 I. &
3 N. Dec. 581, 582 (B.I.A. 2019). This holding is consistent
4 with the rule that it is society’s perception, not only the
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