     16-3093
     Fernandez Cruz v. Whitaker
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A201 242 181
                             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
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 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 14th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12   CECILIO FERNANDEZ CRUZ, AKA
13   CECILIO FERNANDEZ,
14            Petitioner,
15
16                     v.                                        16-3093
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTIN
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Zachary Sanders, New York, NY.
24
25   FOR RESPONDENT:                    Chad A. Readler, Principal Deputy
26                                      Assistant Attorney General;
27                                      Stephen J. Flynn, Assistant
28                                      Director; Arthur L. Rabin, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, United States
31                                      Department of Justice, Washington,
32                                      DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is GRANTED.

5        Petitioner Cecilio Fernandez Cruz (“Cruz”), a native and

6    citizen of El Salvador, seeks review of an August 8, 2016

7    decision of the BIA affirming a December 14, 2015 decision of

8    an Immigration Judge (“IJ”) denying Cruz’s application for

9    asylum,   withholding   of   removal,   and   relief   under   the

10   Convention Against Torture (“CAT”).     In re Cecilio Fernandez

11   Cruz, No. A 201 242 181 (B.I.A. Aug. 8, 2016), aff’g No. A 201

12   242 181 (Immig. Ct. N.Y. City Dec. 14, 2015).      We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15       Cruz argues that he stated a pattern or practice claim

16   for withholding of removal based on his membership in a

17   particular social group.      Specifically, he argues that he

18   offered evidence showing that gangs target young men who

19   resist gang recruitment.      The Government argues that Cruz

20   failed to exhaust a pattern or practice claim before the

21   agency.    But we conclude that remand is warranted here

22   because whether Cruz is a member of a particular social group

23   and whether he showed a pattern or practice of persecution
                                     2
1    require substantially the same analysis.                      By arguing the

2    former before the IJ and BIA, Cruz sufficiently raised a

3    pattern or practice claim and the BIA erred by failing to

4    address it on the merits.

5        Withholding of removal requires the applicant to show

6    that it is more likely than not that his “life or freedom

7    would be threatened . . . on account of race, religion,

8    nationality, membership in a particular social group, or

9    political opinion.”         8 C.F.R. § 1208.16(b); Ramsameachire v.

10   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).                   To constitute a

11   particular social group, a group must be: “(1) composed of

12   members     who    share        a    common     immutable     characteristic,

13   (2) defined with particularity, and (3) socially distinct

14   within the society in question.”                In re M-E-V-G-, 26 I. & N.

15   Dec. 227, 237 (BIA 2014).                Although a “‘particular social

16   group’    cannot    be      defined          exclusively     by   the   claimed

17   persecution,” id., 26 I. & N. Dec. at 232, 239, we have

18   previously recognized instances where a social group can be

19   partially    defined       by       shared    persecution,    see   Paloka   v.

20   Holder, 762 F.3d 191, 198-99 (2d Cir. 2014) (remanding for

21   further consideration of purported social group based on

22   youth, gender, and persecution).                 An applicant may show he

23   would more likely be persecuted by proving his membership in

                                              3
1    a social group and “the existence of ‘a pattern or practice

2    of persecution of a group of persons similarly situated to

3    the    applicant   on     account    of      .   .     .    membership         in    [the]

4    particular social group[.’]”              Kyaw Zwar Tun v. U.S. INS, 445

5    F.3d      554,   565      (2d     Cir.       2006)          (quoting       8        C.F.R.

6    § 208.16(b)(2)).

7           In this case, the analysies of the social group claim

8    and pattern or practice claim overlap.                      Cruz failed to invoke

9    the specific words “pattern or practice” in his briefs before

10   the IJ and BIA and raises the claim by name for the first

11   time in his brief to this Court.                 But Cruz argued before the

12   IJ that that he was a member of a particular social group of

13   young, poor, men targeted by gangs in El Salvador because of

14   their refusal to join them, and he argued before the BIA that

15   gangs targeted poor people who resisted gang recruitment.                               He

16   also submitted evidence, which he alleges shows the existence

17   and persecution of this group.                   By establishing this group

18   as    a   “particular     social    group”           and     the   basis       for    his

19   withholding      claim,    Cruz     would,        in       essence,    establish         a

20   pattern or practice of persecution of the members of that

21   group.     See Kyaw Zwar Tun, 445 F.3d at 565.

22          Given the overlapping analyses, the BIA has failed to

23   address the dispositive issue: whether Cruz showed that he

                                              4
1    would more likely than not be persecuted on account of his

2    group membership.    Remand would not be futile because the BIA

3    did not address the pattern or practice claim and declined to

4    reach the IJ’s finding that “young, poor men who resist gang

5    recruitment” did not constitute a particular social group.

6    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339

7    (2d Cir. 2006).     Accordingly, we remand for the BIA to more

8    fully consider Cruz’s fear of future persecution on account

9    of his allegations that he will be persecuted on account of

10   his group membership.

11       For the foregoing reasons, the petition for review is

12   GRANTED.

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe,
15                                 Clerk of Court
16




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