         12-2066
         Padilla v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A077 621 717
                              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 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 30th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       WILMER RENE ELIAS PADILLA,
14                Petitioner,
15
16                           v.                                 12-2066
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               David G. Katona, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
26                                     Assistant Attorney General; Blair T.
27                                     O’Connor, Assistant Director; Eric
28                                     W. Marsteller, Senior Litigation
29                                     Counsel, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is GRANTED.

 6       Wilmer Rene Elias Padilla, a native and citizen of

 7   Honduras, seeks review of an April 20, 2012, decision of the

 8   BIA affirming the January 25, 2010, decision of Immigration

 9   Judge (“IJ”) Javier Balasquide, which denied his application

10   for asylum, withholding of removal, and relief under the

11   Convention Against Torture (“CAT”).    In re Wilmer Rene Elias

12   Padilla, No. A077 621 717 (B.I.A. Apr. 20, 2012), aff’g No.

13   A077 621 717 (Immig. Ct. N.Y. City Jan. 25, 2010).    We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we review the

17   IJ’s decision as supplemented and modified by the BIA.      See

18   Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Xue

19   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

20   Cir. 2005).    The applicable standards of review are well-

21   established.    See Yanqin Weng v. Holder, 562 F.3d 510, 513

22   (2d Cir. 2009).    Because Padilla does not challenge the

23


                                    2
 1   denial of CAT relief, we address only asylum and withholding

 2   of removal.

 3       The agency reasonably found that Padilla failed to

 4   establish that he was or would be persecuted on account of

 5   his political opinion, whether actually held or imputed.       To

 6   establish eligibility for asylum and withholding of removal,

 7   an applicant must demonstrate that the persecution he

 8   suffered or fears was or would be on account of his race,

 9   religion, nationality, political opinion, or membership in a

10   particular social group.     See 8 U.S.C. §§ 1101(a)(42),

11   1231(b)(3)(A).   For a persecution claim based on political

12   opinion to succeed, the applicant must demonstrate that the

13   persecutor’s motive to persecute arises from a political

14   belief he perceives the applicant to hold, whether correctly

15   or incorrectly attributed.     See Chun Gao v. Gonzales, 424

16   F.3d 122, 129 (2d Cir. 2005).       Here, the only evidence

17   Padilla submitted regarding the motive of his attackers, his

18   credible testimony, indicated that six men attacked him

19   solely because of his familial relationship to his mother, a

20   union activist who the attackers stated “was to be blamed.”

21   Although Padilla testified that he occasionally attended

22   union meetings with his mother, he never suggested that he


                                     3
 1   was an active member, and he presented no other evidence

 2   indicating that the attackers attributed his mother’s union

 3   activities to him.   Hence, the agency reasonably found that

 4   he failed to establish past persecution on account of an

 5   imputed political opinion.   See id.

 6       Padilla argues, however, that the agency erred by

 7   failing to consider his argument that he was targeted based

 8   on his membership in a particular social group, his mother’s

 9   family.   To establish persecution based on membership in a

10   particular social group, an alien must establish that the

11   group itself is cognizable, meaning that its members share a

12   “common characteristic” that they “cannot change, or should

13   not be required to change because it is fundamental to their

14   individual identities or consciences.”    Ucelo-Gomez v.

15   Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (per curiam)

16   (internal quotation marks omitted).    Kinship ties or

17   membership in a family or clan “may form a cognizable shared

18   characteristic for a particular social group.”    Vumi v.

19   Gonzales, 502 F.3d 150, 155 (2d Cir. 2007); see also Matter

20   of H-, 21 I. & N. Dec. 337, 342 (BIA 1996).    Here, both the

21   BIA and the IJ found that Padilla was attacked due to his

22   mother’s political opinion, in essence, because he is his


                                   4
 1   mother’s son.   However, they did not discuss whether

 2   Padilla’s filial relationship to his mother constituted a

 3   protected ground.   Given this lack of explanation, remand is

 4   appropriate for further consideration of whether Padilla

 5   established a nexus between the attack and a particular

 6   social group based on his kinship ties to his mother.     See

 7   Vumi, 502 F.3d at 155; Beskovic v. Gonzales, 467 F.3d 223,

 8   227 (2d Cir. 2006) (requiring a certain minimal level of

 9   analysis from agency decisions denying asylum to enable

10   meaningful judicial review).

11       Moreover, as neither the IJ nor the BIA addressed the

12   viability of Padilla’s past persecution claim on account of

13   his kinship ties, remand is also appropriate as it is

14   unclear whether the agency erred in placing the burden on

15   Padilla as to future persecution in Honduras.   See Kyaw Zwar

16   Tun v. INS, 445 F.3d 554, 564-65 (2d Cir. 2006) (noting that

17   “establishing past persecution creates [] a rebuttable

18   presumption of [] a well-founded fear [of future

19   persecution]"); see also 8 C.F.R. § 1208.16(b)(1)(i).     And

20   neither the IJ nor the BIA determined that the Government

21   would have successfully rebutted the presumption of a well-

22   founded fear of persecution.   See Kyaw Zwar Tun, 445 F.3d at

23   564-65.   Although the BIA noted that the ability of
                                    5
 1   Padilla’s mother to remain in Honduras unharmed undermined

 2   Padilla’s CAT claim, that finding does not equate to

 3   “changed circumstances” sufficient for rebuttal.     Compare

 4   Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)

 5   (well-founded fear diminished where family members continued

 6   to live in her native country), with Islami v. Gonzales, 412

 7   F.3d 391, 397 (2d Cir. 2005) (requiring government to show

 8   that “country conditions have changed radically” to

 9   establish a fundamental change in circumstances sufficient

10   to rebut the presumption of a well-founded fear of

11   persecution (emphasis added)), overruled in part on other

12   grounds by Shi Liang Lin v. U.S. D.O.J., 494 F.3d 296, 305

13   (2d Cir. 2007), and Kone v. Holder, 596 F.3d 141, 149 (2d

14   Cir. 2010) (holding that alien’s return trip did not rebut

15   the presumption because “the government cannot satisfy its

16   burden . . . simply by showing that [applicant] enjoyed

17   periods with no new persecution or that [applicant] will not

18   perpetually be persecuted in her native country”).     Because

19   this presumption applies equally to withholding of removal,

20   remand is warranted for the agency to apply the appropriate

21   framework for withholding of removal.   See 8 C.F.R.

22   § 1208.16(b)(1).

23       For the foregoing reasons, the petition for review is
                                  6
1   GRANTED, and the case is REMANDED for reconsideration of

2   Padilla’s eligibility for asylum and withholding of removal.

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




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