     17-2195
     Orellana-Hernandez v. Barr
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A206 628 005

                             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 27th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            RAYMOND J. LOHIER, JR.,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _______________________________________
12
13   GUILLERMINA NOHEMY ORELLANA-HERNANDEZ,
14            Petitioner,
15
16                     v.                                        17-2195
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _______________________________________
22
23   FOR PETITIONER:                    Michael A. Ugolini, Wilbraham,
24                                      MA.
25
26   FOR RESPONDENT:                    Corey Farrell, Appellate Counsel,
27                                      Office of Immigration Litigation,
28                                      Greg D. Mack, Senior Litigation
29                                      Counsel, Civil Division, for Ethan
 1                                   P. Davis, Acting Assistant
 2                                   Attorney General, Civil Division,
 3                                   United States Department of
 4                                   Justice, Washington, DC.
 5
 6
 7
 8
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14       Petitioner     Guillermina     Nohemy    Orellana-Hernandez,     a

15   native and citizen of Honduras, seeks review of a June 22,

16   2017 decision of the BIA affirming a May 23, 2016 decision of

17   an Immigration Judge (“IJ”) denying asylum, withholding of

18   removal, and relief under the Convention Against Torture

19   (“CAT”).     In re Guillermina Nohemy Orellana-Hernandez, No.

20   A206 628 005 (B.I.A. June 22, 2017), aff’g No. A206 628 005

21   (Immig. Ct. Hartford May 23, 2016).          We assume the parties’

22   familiarity with the underlying facts and procedural history.

23       We have reviewed both the IJ’s and the BIA’s opinions

24   “for the sake of completeness.”              Wangchuck v. Dep’t of

25   Homeland   Sec.,   448   F.3d   524,   528   (2d   Cir.   2006).   The

26   applicable standards of review are well established.               See

27   8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195
                                        2
 1   (2d Cir. 2014).

 2        The   issue     before     us    is       whether    Orellana-Hernandez

 3   satisfied her burden of proof for asylum and withholding of

 4   removal based on her claims that her daughter’s father, gang

 5   members, and individuals to whom she had lent money threatened

 6   her and caused her to close her businesses in Honduras on

 7   account of her membership in the social groups of “women in

 8   Honduras    who    are    unable     to       leave   their   relationships,”

 9   “Honduran small business owners and their dependents,” and

10   “families in Honduras who receive remittances from a relative

11   in the United States.”             We find no error in the agency’s

12   conclusion that she did not.

13        “[P]ersecution is ‘an extreme concept that does not

14   include    every   sort    of   treatment         our    society    regards   as

15   offensive.’”       Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

16   Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,

17   416 F.3d 192, 198 (2d Cir. 2005)).                    It may “encompass[] a

18   variety of forms of adverse treatment, including non-life-

19   threatening violence and physical abuse,” but the harm must

20   be   sufficiently    severe,       rising        above   “mere     harassment.”

21   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

22   Cir. 2006) (internal quotation marks and brackets omitted).

                                               3
 1        “[U]nfulfilled threats,” such as those made by Orellana-

2    Hernandez’s daughter’s father, gang members, and individual

3    borrowers, do not constitute persecution.        Gui Ci Pan v. U.S.

4    Att’y General, 449 F.3d 408, 412–13 (2d Cir. 2006) (quotation

5    marks omitted).       Further, Orellana-Hernandez did not allege

6    suffering any “persecutive effects” as a result of closing

7    her businesses in response to threats, as we have required

8    when a petitioner claims economic persecution.             Huo Qiang

 9   Chen v. Holder, 773 F.3d 396, 406 (2d Cir. 2014). 1

10        Absent    past    persecution,   an     alien   may   establish

11   eligibility for asylum by demonstrating a well-founded fear

12   of   future   persecution,    8 C.F.R.     § 1208.13(b)(2),   “which

13   requires that the alien present credible testimony that [s]he

14   subjectively fears persecution and establish that [her] fear

15   is objectively reasonable,” Ramsameachire v. Ashcroft, 357

16   F.3d 169, 178 (2d Cir. 2004).         The agency did not err in

17   finding that Orellana-Hernandez’s fear of future harm was



     1 Contrary to Orellana-Hernandez’s contention, the BIA did
     not engage in improper factfinding when it recited facts found
     by the IJ and concluded that those facts did not rise to the
     level of economic persecution.         See Edimo-Doualla v.
     Gonzales, 464 F.3d 276, 282 (2d Cir. 2006) (providing that
     the issue of whether harm rises to the level of persecution
     “involves the application of a legal standard to established
     facts”).
                                       4
1    speculative     because   her   would-be      persecutors    had    not

2    fulfilled any of their threats and had not expressed any

3    continued interest in her.      See Jian Xing Huang v. U.S. INS,

4    421 F.3d 125, 129 (2d Cir. 2005).

5        Even if Orellana-Hernandez’s fears are well founded, the

6    agency did not err in concluding that her proposed social

7    groups   of   “Honduran    small       business   owners    and    their

8    dependents” and “families in Honduras who are beneficiaries

9    of remittances from the United States” were not cognizable as

10   particular social groups. 2     To constitute a particular social

11   group, a group must be “(1) composed of members who share a

12   common    immutable       characteristic,         (2) defined       with

13   particularity, and (3) socially distinct within the society

14   in question.”    Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237

15   (BIA 2014); see also Paloka, 762 F.3d at 195–96.

16       We have agreed with the agency’s determination that a

17   group defined by wealth is not cognizable as a particular

18   social group.     See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73

19   (2d Cir. 2007) (“If ‘wealth’ defined the boundaries of a



     2 Orellana-Hernandez   does  not  challenge the   agency’s
     dispositive determination that she is not a member of the
     group of “women in Honduras who are unable to leave their
     relationships.”
                                        5
 1   particular social group, a determination about whether any

 2   petitioner fit into the group (or might be perceived as a

 3   member     of   the    group)   would        necessitate         a    sociological

 4   analysis as to how persons with various assets would have

 5   been   viewed     by   others    in     their        country.”).             Although

 6   Orellana-Hernandez attempted to more narrowly define her

 7   proposed      social   groups    as     “small       business         owners”     and

 8   “beneficiaries of remittances,” these groups were premised on

 9   wealth or perceived wealth and not on a particularized status.

10   Indeed,     Orellana-Hernandez          admitted          that       gang     members

11   targeted her because they thought she had money.                            But “harm

12   motivated purely by wealth is not persecution.”                         Id. at 74.

13   And, while the country conditions evidence in the record

14   states that children who receive remittances from the United

15   States are more vulnerable to gang extortion, we have noted

16   that a social group is not cognizable if it “depends on no

17   disadvantage other than purported visibility to criminals.”

18   Id. at 73; see id. (“When the harm visited upon members of a

19   group is attributable to the incentives presented to ordinary

20   criminals rather than to persecution, the scales are tipped

21   away   from     considering     those       people    a    ‘particular         social

22   group’ within the meaning of the INA.”).

                                             6
 1         Accordingly,     because    Orellana-Hernandez         failed    to

 2   demonstrate past persecution or state a cognizable social

 3   group in support of a well-founded fear of persecution, the

 4   agency did not err in finding that she failed to establish

 5   her eligibility for asylum or withholding of removal.                  See

 6   8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also Lecaj

 7   v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).               Orellana-

 8   Hernandez does not challenge the BIA’s determination that she

 9   abandoned CAT relief, and so we do not consider the decision

10   to that extent.      See Yueqing Zhang v. Gonzales, 426 F.3d 540,

11   541 n.1, 545 n.7 (2d Cir. 2005).

12         We find no merit to Orellana-Hernandez’s argument that

13   one of the members of the BIA panel that dismissed her appeal

14   should have recused himself because of his past professional

15   relationship with the IJ.         None of their past interactions

16   qualify as relationships requiring recusal under the Ethics

17   and   Professionalism     Guide   for   Members   of   the    Board    of

18   Immigration   Appeals.      Further,    Orellana-Hernandez’s          only

19   evidence of bias is the BIA’s decision, which as discussed

20   above was reasonable and unanimously decided by a three-

21   member panel.

22         For the foregoing reasons, the petition for review is

                                        7
1   DENIED.   All pending motions and applications are DENIED and

2   stays VACATED.

3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe,
5                               Clerk of Court




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