         13-2769
         Ordonez Azmen v. Holder
                                                                                        BIA
                                                                           Gordon-Uruakpa, IJ
                                                                               A096 482 048
                               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 11th day of December, two thousand fourteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       MARIO ORDONEZ AZMEN, AKA DAVID PEREZ,
14       AKA MARIO ENRIQUE ORDONEZ AZMEN,
15                Petitioner,
16
17                          v.                                  13-2769
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                David M. Sperling, Law Offices of
25                                      David M. Sperling, Central Islip,
26                                      NY; Charles Roth, Lisa Koop,
27                                      National Immigrant Justice Center,
28                                      Chicago, IL; Gaelen Schumann, Hayley
29                                      Steptoe, Julie Decker, Student
30                                      Attorneys; Benjamin Richard Casper,
 1                          Katherine Evans, University of
 2                          Minnesota Law School, Center for New
 3                          Americans, Federal Immigration
 4                          Litigation Clinic, Minneapolis, MN.
 5
 6                          (Fatma E. Marouf, Associate
 7                          Professor of Law, University of
 8                          Nevada, submitted a brief for amicus
 9                          curiae William S. Boyd School of Law
10                          Immigration Clinic, in support of
11                          Petitioner.)
12
13   FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
14                          General; Papu Sandhu, Senior
15                          Litigation Counsel, Margaret J.
16                          Perry, Senior Litigation Counsel,
17                          Office of Immigration Litigation,
18                          United States Department of Justice,
19                          Washington, D.C.
20
21       UPON DUE CONSIDERATION of this petition for review of a

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

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

24   is DENIED in part, GRANTED in part, and REMANDED to the

25   agency.

26       Mario Ordonez Azmen, a native and citizen of Guatemala,

27   seeks review of a June 27, 2013, decision of the BIA

28   affirming the December 9, 2010, decision of an Immigration

29   Judge (“IJ”) denying his application for asylum and

30   statutory withholding of removal.   In re Mario Ordonez

31   Azmen, No. A096 482 048 (B.I.A. June 27, 2013), aff’g No.

32   A096 482 048 (Immig. Ct. N.Y. City Dec. 9, 2010).     We assume

                                  2
 1   the parties’ familiarity with the underlying facts and

 2   procedural history in this case.

 3       Under the circumstances of this case, we consider both

 4   the IJ’s and the BIA’s opinions “for the sake of

 5   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

 6   2008).    The applicable standards of review are well

 7   established.     See 8 U.S.C. § 1252(b)(4)(B); Guan Shan Liao

 8   v. United States, 293 F.3d 61, 66 (2d Cir. 2002).

 9       We grant the motion of the University of Nevada School

10   of Law Immigration Clinic to submit an amicus curiae brief.

11   Asylum

12       To be eligible for asylum, an individual must apply

13   within one year after the date of his arrival in the United

14   States.    8 U.S.C. § 1158(a)(2)(B).     There is an exception to

15   this deadline if the applicant demonstrates “the existence

16   of changed circumstances which materially affect the

17   applicant’s eligibility for asylum.”       8 U.S.C.

18   § 1158(a)(2)(D).    We lack jurisdiction to review a challenge

19   to the agency’s determination that an applicant did not

20   demonstrate changed circumstances unless the challenge

21   presents a legal question or constitutional claim.       8 U.S.C.

22   §§ 1158(a)(3), 1252(a)(2)(D).       Ordonez Azmen argues that the


                                     3
 1   BIA erred as a matter of law because it mischaracterized and

 2   ignored evidence showing changed circumstances.     He is

 3   correct: the BIA erroneously stated that Ordonez Azmen did

 4   not raise “changed circumstances” with the IJ, and that he

 5   testified only to the 2004 murder of one former Mara 18 gang

 6   member.   See Gui Yin Liu v. INS, 508 F.3d 716, 721-22 (2d

 7   Cir. 2007).    To the contrary, Ordonez Azmen also testified

 8   that a former member of Mara 18 was murdered in 2010,

 9   shortly before Ordonez Azmen’s merits hearing.

10       But the BIA’s error was harmless.    Ordonez Azmen argues

11   that the 2010 murder constitutes “changed circumstances.”

12   This argument is without merit.    Ordonez Azmen applied for

13   asylum in 2008, two years prior to the 2010 murder.     A

14   change in circumstances is relevant if it affects

15   eligibility for asylum – in other words, the event must

16   trigger fear of persecution and, in turn, an asylum

17   application.    A 2010 murder could not have triggered Ordonez

18   Azmen’s 2008 asylum application.    While the 2010 murder

19   corroborates Ordonez Azmen’s fears, because it occurred

20   after Ordonez Azmen had applied for asylum, it is not

21   evidence of a change that caused him to reconsider his

22   eligibility for asylum.    See 8 C.F.R. § 1208.4(a)(4)(ii) (an


                                    4
 1   alien shall apply for asylum within a reasonable period of

 2   the changed circumstances); Xiao Ji Chen v. U.S. Dep’t of

 3   Justice, 471 F.3d 315, 320 n.1 (2d Cir. 2006).     As a result,

 4   the agency did not err in pretermitting Ordonez Azmen’s

 5   asylum application as untimely.

 6   Withholding of Removal under the INA and the Convention

 7   Against Torture

 8       Ordonez Azmen argues that even if his asylum

 9   application was untimely, he is eligible for statutory

10   withholding of removal under the INA because he belongs to a

11   cognizable social group.     Ordonez Azman was granted

12   withholding of removal under the Convention Against Torture

13   (“CAT”).   A threshold question is whether statutory

14   withholding and CAT withholding differ.     The relevant

15   regulations suggest that these two forms of relief entail

16   the same benefits and restrictions.     See 8 C.F.R.

17   § 1208.16(d).     There may, however, be a difference with

18   regard to termination.     The government can terminate

19   statutory withholding by showing that an alien will no

20   longer be persecuted on account of a protected ground; it

21   can terminate CAT withholding by showing that an alien will

22   no longer be tortured.     See 8 C.F.R. § 1208.24(f);

23   Regulations Concerning the Convention Against Torture, 64
                                     5
 1   Fed. Reg. 8478, 8482 (Feb. 19, 1999).      However, because the

 2   BIA does not appear to have discussed differences between

 3   statutory and CAT withholding in a published decision, we

 4   remand for it to address that threshold issue in the first

 5   instance.

 6   Particular Social Group

 7       Ordonez Azmen sought statutory withholding on the

 8   ground that he is a member of a particular social group that

 9   shares some common, immutable characteristic that is beyond

10   the power of the individual to change, or is so fundamental

11   that it ought not be required to be changed.      8 U.S.C.

12   § 1231(b)(3)(A); Gashi v. Holder, 702 F.3d 130, 136 (2d Cir.

13   2012).     A shared, immutable characteristic alone does not

14   establish a particular social group, however.      The group

15   also must be defined with sufficient particularity: it must

16   be finite, not indeterminate.       Gashi, 702 F.3d at 136-37.    A

17   group must be distinct – society must perceive those with

18   the relevant characteristic as members of a group.       Ucelo-

19   Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per

20   curiam); Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d

21   Cir. 2007).     To be socially distinct, a group need not be

22   seen by society; it must instead be perceived as a group by

23   society.     Matter of W-G-R-, 26 I&N Dec. 208, 216-17; see
                                     6
 1   Matter of M-E-V-G-, 26 I&N Dec. 227; see also Paloka v.

 2   Holder, 762 F.3d 191, 195, 197 (2d Cir. 2014) (approving the

 3   BIA’s clarification in Matter of W-G-R- and Matter of M-E-V-

 4   G- of “the legal landscape for adjudicating ‘particular

 5   social group’ claims”).

 6       Matter of W-G-R-, Matter of M-E-V-G- (issued in

 7   tandem), and Paloka were all decided while Ordonez Azmen’s

 8   petition was pending before the Court.   The Government

 9   argues that remand is warranted to allow the BIA to “bring

10   its expertise to bear upon the matter; it can evaluate the

11   evidence; it can make an initial determination; and, in

12   doing so, it can, through informed discussion and analysis,

13   help a court later determine whether its decision exceeds

14   the leeway that the law provides.”    Paloka, 762 F.3d at 197-

15   98 (internal quotations and alterations omitted).

16   Conversely, Ordonez Azmen “finds the government’s remand

17   argument . . . quite odd,” concluding that the BIA’s case

18   law “makes the result on remand a foregone conclusion.”     In

19   Matter of W-G-R-, the BIA concluded that a group defined as

20   “former members of the Mara 18 gang in El Salvador who have

21   renounced their gang membership” was not cognizable because

22   it lacked sufficient particularity.   26 I&N Dec. at 221-23.

23       However, Ordonez Azmen is a former member of Mara 18 in

24   Guatemala City; the applicant in W-G-R- was from El

                                  7
 1   Salvador.    Furthermore, the BIA concluded that the group

 2   “former members of Mara 18 in El Salvador” lacked

 3   particularity because it was too diffuse, and too broad and

 4   subjective — as described, it could include persons of any

 5   age, sex, or background, and was not limited to those who

 6   had a meaningful involvement with the gang.      Id. at 221-22.

 7   On remand, the BIA can consider whether Ordonez Azmen’s

 8   proposed social group is sufficiently particular and

 9   distinct to be cognizable under the agency’s recent

10   decisions.    See Paloka, 762 F.3d at 198-99.

11       For the foregoing reasons, the petition for review is

12   GRANTED, and the case is REMANDED to the BIA for further

13   proceedings consistent with this decision.      As we have

14   completed our review, any stay of removal that the Court

15   previously granted in this petition is VACATED, and any

16   pending motion for a stay of removal in this petition is

17   DISMISSED as moot.    Any pending request for oral argument in

18   this petition is DENIED in accordance with Federal Rule of

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

20   34.1(b).

21                                FOR THE COURT:
22                                Catherine O’Hagan Wolfe, Clerk
23
24




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