     17-3296
     Yokoyama v. Barr
                                                                                 BIA
                                                                          Mulligan, IJ
                                                                         A088 445 387
                             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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 10th day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   MICHI YOKOYAMA,
14            Petitioner,
15
16                      v.                                     17-3296
17                                                             NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Matthew L. Guadagno, New York, NY.
24
25   FOR RESPONDENT:                    Joseph H. Hunt, Assistant Attorney
26                                      General; Keith I. McManus,
27                                      Assistant Director; Claire L.
28                                      Workman, Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      Washington, 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 DENIED.

 5         Petitioner    Michi      Yokoyama,         a    native   and     citizen    of

 6   Japan, seeks review of a September 15, 2017, decision of the

 7   BIA reversing a June 7, 2016 decision of an Immigration

 8   Judge (“IJ”) granting Yokoyama’s application for asylum.                          In

 9   re   Michi   Yokoyama,       No.    A 088   445       387   (B.I.A.     Sept.    15,

10   2017), rev’g No. A 088 445 387 (Immig. Ct. N.Y. City June 7,

11   2016).       We   assume      the    parties’          familiarity      with     the

12   underlying facts and procedural history in this case.

13         We review the agency’s factual findings for substantial

14   evidence and its legal conclusions, including “whether a

15   group    constitutes     a    ‘particular        social      group’     under    the

16   [Immigration and Nationality Act],” de novo.                            Paloka v.

17   Holder, 762 F.3d 191, 195 (2d Cir. 2014); see also 8 U.S.C.

18   §    1252(b)(4)(B).          Because       the       BIA    reversed    the     IJ’s

19   decision, we review the BIA’s decision as the final agency

20   decision.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

21   Cir. 2005).
                                            2
 1          Yokoyama asserted, and the IJ agreed, that she would be

 2   persecuted on account of her membership in the social group

 3   of “women accused of crimes in Japan.”

 4          We    conclude       that    the   BIA   did   not   err    in   rejecting

 5   Yokoyama’s initial argument that the Department of Homeland

 6   Security (“DHS”) waived any challenge to the social group

 7   determination.          Yokoyama cites no authority in support of

 8   her argument that DHS was required to reargue this issue on

 9   remand to the IJ.              Indeed, there was no need for DHS to

10   address the issue because the BIA remanded on the separate

11   issue of whether she would be subject to disproportionate

12   treatment if convicted.              Accordingly, the BIA did not err in

13   addressing         whether    Yokoyama’s        proposed    social      group   was

14   cognizable.

15          For asylum and withholding of removal, an “applicant

16   must establish that race, religion, nationality, membership

17   in a particular social group, or political opinion was or

18   will    be    at    least     one    central     reason     for”   the    claimed

19   persecution.            8    U.S.C.       §§    1158(b)(1)(B)(i)        (asylum),

20   1231(b)(3)(A) (withholding); Matter of C-T-L, 25 I. & N.

21   Dec. 341, 346 (B.I.A. 2010) (holding that the “one central
                                                3
 1   reason” standard also applies to withholding of removal).

 2   To constitute a particular social group, a group must be

 3   “(1)    composed   of   members   who      share   a    common     immutable

 4   characteristic,     (2)    defined       with   particularity,      and    (3)

 5   socially distinct within the society in question.”                    Matter

 6   of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).                      “[A]

 7   particular social group cannot be defined exclusively by the

 8   claimed persecution[;] . . . it must be recognizable as a

 9   discrete group by others in the society, and . . . it must

10   have well-defined boundaries.”             Id. at 232 (quotation marks

11   omitted); see Paloka, 762 F.3d at 195-96 (deferring to BIA’s

12   interpretation of social group).

13          The BIA did not err in determining that Yokoyama failed

14   to demonstrate that her proposed social group of “women who

15   are accused of crimes in Japan” is socially distinct.                      “To

16   be socially distinct, a group . . . must be perceived as a

17   group by society.”        Matter of M-E-V-G-, 26 I. & N. Dec. at

18   240.    “Evidence such as country conditions reports, expert

19   witness testimony, and press accounts of discriminatory laws

20   and    policies,   historical     animosities,         and   the   like    may

21   establish that a group exists and is perceived as ‘distinct’
                                          4
 1   or ‘other’ in a particular society.”                Id. at 244.      The IJ

 2   determined that Yokoyama’s group was socially distinct based

 3   entirely on Yokoyama’s testimony that as a child, she was

 4   taught about how poorly individuals who have been convicted

 5   of   crimes    are    treated.”      As    the     BIA   noted,     however,

 6   Yokoyama’s     testimony   supports      the     conclusion   that   people

 7   convicted of crimes may be recognized as a group, not that

 8   women accused of crimes or female detainees are perceived as

 9   a distinct group by Japanese society.               The record does not

10   otherwise     support   Yokoyama’s       claim    that   Japanese    society

11   recognizes women accused of crimes as a distinct group.

12        Because Yokoyama failed to demonstrate that “women who

13   are accused of crimes in Japan” is a socially distinct group

14   within Japanese society, Yokoyama failed to establish that

15   she faces harm on account of her membership in a cognizable

16   social group.        See Matter of W-G-R-, 26 I. & N. Dec. 208,

17   218 (B.I.A. 2014).         For that reason, she did not state a

18   claim for asylum and withholding of removal.                  See 8 U.S.C.

19   §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

20

21
                                          5
1       For the foregoing reasons, the petition for review is

2   DENIED.    All   pending   motions   are   DENIED   and   stays   are

3   VACATED.

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe,
6                                 Clerk of Court
7
8




                                    6
