     16-121
     Lemus-de Umana v. Sessions
                                                                                               BIA
                                                                                         Nelson, IJ
                                                                    A 206 791 253 / 254 / 255 / 256

                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   1st day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            RICHARD C. WESLEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ELBIA NOEMI LEMUS-DE UMANA, KAREN
14   JULISSA UMANA-LEMUS, OSCAR
15   LEONIDAS UMANA-LEMUS, and YEIMI
16   LISSETH UMANA-LEMUS,
17                 Petitioners,
18
19                    v.                                             16-121
20                                                                   NAC
21   JEFFERSON B. SESSIONS III,
22   UNITED STATES ATTORNEY GENERAL,
23                 Respondent.
24   _____________________________________
25
26
27   FOR PETITIONERS:                    Judy Resnick, Far Rockaway, NY.
28
1    FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
2                               Assistant Attorney General; Shelley
3                               R. Goad, Assistant Director; Julia
4                               J. Tyler, Trial 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 is

12   DENIED.

13       Petitioner Elbia Noemi Lemus-de Umana (“Umana”) and her

14   minor children, Karen Julissa, Oscar Leonidas, and Yeimi

15   Lisseth Umana-Lemus, all natives and citizens of El Salvador,

16   seek review of a December 15, 2015, decision of the BIA affirming

17   a July 13, 2015, decision of an Immigration Judge (“IJ”) denying

18   Umana’s application for asylum, withholding of removal, and

19   relief under the Convention Against Torture (“CAT”).       In re

20   Elbia Noemi Lemus-de Umana, Karen Julissa Umana-Lemus, Oscar

21   Leonidas Umana-Lemus, and Yeimi Lisseth Umana-Lemus, Nos. A206

22   791 253/254/255/256 (B.I.A. Dec. 15, 2015), aff’g Nos. A206 791

23   253/254/255/256 (Immig. Ct. N.Y. City July 13, 2015).         We

24   assume the parties’ familiarity with the underlying facts and

25   procedural history in this case.
                                    2
1        Under the circumstances of this case, we have reviewed both

2    the IJ’s and the BIA’s opinions “for the sake of completeness.”

3    Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006).        The

4    standards of review are well established.        See 8 U.S.C.

5    § 1252(b)(4); Gjolaj v. Bureau of Citizenship & Immigration

6    Servs., 468 F.3d 140, 142 (2d Cir. 2006).     Petitioners have

7    failed to challenge the dispositive bases of the agency’s

8    ruling, presenting no argument regarding either their proposed

9    social group needed to state a claim for asylum and withholding

10   of removal, or the government acquiescence needed to establish

11   entitlement to CAT relief.     Accordingly, Petitioners have

12   effectively waived review.   See Norton v. Sam’s Club, 145 F.3d

13   114, 117 (2d Cir. 1998) (“[I]ssues not sufficiently argued in

14   the briefs are considered waived and normally will not be

15   addressed on appeal.”).   Even were we to excuse that waiver,

16   our review of the record reveals no error in the agency’s

17   decisions.

18       To establish eligibility for asylum and withholding of

19   removal based on membership in a particular social group, the

20   applicant must establish both that the group is legally

21   cognizable, see Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
                                    3
 1   2014), and that the applicant has suffered past persecution or

 2   has demonstrated a well-founded fear or likelihood of future

 3   persecution “on account of” her membership in that group, see

 4   Rodas Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010), i.e.,

5    the membership in the group must be “at least one central reason”

6    for the alleged persecution, 8 U.S.C. § 1158(b)(1)(B)(i).         A

7    particular social group is cognizable if it refers to “a

8    discrete class of persons” and “the relevant society perceives,

9    considers, or recognizes the group as a distinct social group.”

10   Matter of W-G-R-, 26 I. & N. Dec. 208, 210, 217 (BIA 2014)

11   (internal quotation marks omitted); see Paloka, 762 F.3d at 195

12   (deferring to the BIA’s construction of “particular social

13   group”).

14       The    agency   reasonably   found   that   Umana’s   initially

15   proposed particular social group, “people who oppose and are

16   threatened by gangs,” could apply to “a diverse array of people

17   with very differing characteristics.”     See Matter of M-E-V-G-,

18   26 I. & N. Dec. 227, 239 (BIA 2014) (particular social group

19   cannot be “amorphous, overbroad, diffuse, or subjective”).

20   And Umana failed to show that the proposed group was perceived

21   as a distinct social category in El Salvador.     Paloka, 762 F.3d
                                      4
1    at 196 (“[W]hat matters is whether society as a whole views a

2    group as socially distinct.”).       Moreover, Umana did not testify

3    that she “opposed” the gangs; even if she had, she presented

4    no evidence that her persecutors were aware of her stance, so

5    she could not show that any harm was “on account of” her social

6    group.   Rodas Castro, 597 F.3d at 100; Kyaw Zwar Tun v. U.S.

7    INS, 445 F.3d 554, 565 (2d Cir. 2006) (applicant must show that

8    his “persecutor is, or could become, aware of the applicant’s

9    possession of the disfavored belief or characteristic”).

10   Instead, she testified that she believed she was targeted

11   because she had a job and so was perceived to have money;

12   however, the appearance of wealth is not sufficient to identify

13   a particular social group.   Ucelo-Gomez v. Mukasey, 509 F.3d

14   70, 72-74 (2d Cir. 2007) (upholding BIA’s determination that

15   wealthy people are not a particular social group for asylum

16   purposes).

17       Umana redefined her social group on appeal to the BIA as

18   “people whose family members were murdered by gangs.”        Again,

19   the agency reasonably found that this group was overbroad and

20   that there was no evidence of social distinction.         Matter of

21   M-E-V-G-, 26 I. & N. Dec. at 239; Paloka, 762 F.3d at 196.      Nor
                                      5
1    did Umana present any evidence that the threatening callers were

2    aware of the fact that her husband was murdered.            Kyaw Zwar Tun,

3    445 F.3d at 565; see also Jian Hui Shao v. Mukasey, 546 F.3d

4    138, 157-58 (2d Cir. 2008) (“[W]hen a petitioner bears the

5    burden of proof, his failure to adduce evidence can itself

6    constitute the ‘substantial evidence’ necessary to support the

7    agency’s challenged decision.”).

8           With   respect    to   CAT    relief,    the    agency   reasonably

9    determined that Umana did not show that she would more likely

10   than not suffer torture at the hands of or with the acquiescence

11   of a government official in El Salvador.             The telephone threats

12   here     do    not      constitute        torture.       See    8   C.F.R.

13   § 1208.16(c)(3)(1) (listing past torture as one factor to

14   consider in CAT analysis); Gui Ci Pan v. U.S. Att’y Gen., 449

15   F.3d 408, 412 (2d Cir. 2006) (recognizing that unfulfilled

16   threats do not rise to the level of past persecution).              Nor did

17   she establish that the police acquiesced in their behavior.             At

18   most, she shows that the police did not prioritize her reports,

19   which does not rise to the level of refusal to act.             Cf. Aliyev

20   v. Mukasey, 549 F.3d 111, 119 (2d Cir. 2008) (finding government

21   acquiescence where, “despite repeated reports of violence to
                                           6
1    the police, no significant action was taken on [the alien’s]

2    behalf”).    Umana presented no other evidence to show that it

3    was more likely than not that she would be tortured by or with

4    the acquiescence of a government official.             See Mu Xiang Lin

5    v. U.S. Dep’t of Justice, 432 F.3d 156, 158 (2d Cir. 2005)

6    (denying petition where applicant presented no “particularized

7    evidence suggesting that she is likely to be subjected to

8    torture”).

9        Finally,         Umana   contends   that     the     IJ   exhibited

10   impermissible bias and speculation in denying her relief, and

11   deprived her of due process.       As discussed above, we find no

12   error in the agency’s decisions.         Although framed as a due

13   process     claim,    this   argument   merely    expresses    Umana’s

14   disagreement with the merits of the IJ’s decision.            She does

15   not dispute that she received the “full and fair removal

16   hearing” that due process requires.       See Yuen Jin v. Mukasey,

17   538 F.3d 143, 157 (2d Cir. 2008).

18       For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, any stay of removal

20   that the Court previously granted in this petition is VACATED,

21   and any pending motion for a stay of removal in this petition
                                        7
1   is DISMISSED as moot.   Any pending request for oral argument

2   in this petition is DENIED in accordance with Federal Rule of

3   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

4   34.1(b).

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




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