     16-1284
     Jacobo-Melendres v. Sessions
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A205 412 174
                             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   17th day of October , two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GILDA JACOBO-MELENDRES,
14            Petitioner,
15
16                     v.                                            16-1284
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Jon E. Jessen, Stamford, CT.
24
25   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
26                                       Attorney General; Keith I. McManus,
27                                       Assistant Director; Jessica E.
28                                       Burns, Senior Litigation Counsel,
29                                       Office of Immigration Litigation,
30                                       United 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 is

4    DENIED in part and GRANTED in part.

5          Petitioner Gilda Jacobo-Melendres, a native and citizen of

6    Guatemala, seeks review of a March 24, 2016 decision of the BIA

7    affirming a September 29, 2014 decision of an Immigration Judge

8    (“IJ”) denying asylum, withholding of removal, and relief under

9    the   Convention    Against   Torture   (“CAT”).   In    re   Gilda

10   Jacobo-Melendres, No. A205 412 174 (B.I.A. Mar. 24, 2016), aff’g

11   No. A205 412 174 (Immig. Ct. Hartford Sept. 29, 2014).          We

12   assume the parties’ familiarity with the underlying facts and

13   procedural history in this case.

14         We have reviewed the decision of the IJ as supplemented by

15   the BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

16   2005).     The applicable standards of review are well

17   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

18   Holder, 562 F.3d 510, 513 (2d Cir. 2009).      The agency did not

19   err in finding that Jacobo-Melendres failed to satisfy her

20   burden of proof for asylum and withholding of removal, but it

21   did err by failing to fully consider evidence material to her

22   CAT claim.

                                      2
1    Asylum and Withholding of Removal

2        In order to demonstrate eligibility for asylum and

3    withholding of removal, “the applicant must establish that

4    race, religion, nationality, membership in a particular social

5    group, or political opinion was or will be at least one central

6    reason for persecuting the applicant.”    8 U.S.C.

7    § 1158(b)(1)(B)(i); see 8 U.S.C. § 1231(b)(3)(A); Matter of

8    C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010).   To constitute

9    a particular social group, a group must be: “(1) composed of

10   members who share a common immutable characteristic, (2)

11   defined with particularity, and (3) socially distinct within

12   the society in question.”   Matter of M-E-V-G-, 26 I. & N. Dec.

13   227, 237 (B.I.A. 2014); see also Ucelo-Gomez v. Mukasey, 509

14   F.3d 70, 72-74 (2d Cir. 2007)(per curiam).   The agency did not

15   err in finding that Jacobo-Melendres’s proposed social group

16   of “unmarried Guatemalan young women who refuse to be the

17   victims of gang stalking and harassment and to enter into a

18   forced relationship with gang members” was not cognizable.

19   Pet’r’s Br., Addendum at 3.

20       Jacobo-Melendres failed to demonstrate that her proposed

21   group was socially distinct in Guatemalan society.   The country

22   conditions evidence discusses widespread violence against

                                    3
1    women in Guatemala, but it does not mention that unmarried women

2    who refuse the advances of gang members are perceived as a

3    distinct social group in society or are at greater risk than

4    anyone who refuses to comply with a gang member’s criminal

5    demands.   See Ucelo-Gomez, 509 F.3d at 73 (“When the harm

6    visited upon members of a group is attributable to the

7    incentives presented to ordinary criminals rather than to

8    persecution, the scales are tipped away from considering those

9    people a ‘particular social group’ within the meaning of the

10   INA.”); Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75 (BIA

11   2007) (holding that the group of “wealthy Guatemalans” failed

12   the social distinction requirement because it would not be

13   recognized as a group at a greater risk of crime, extortion,

14   or robbery).   Moreover, Jacobo-Melendres testified that she

15   was harassed, stalked, and attacked because a gang member was

16   interested in having a relationship with her, but she did not

17   assert that he or anyone else targeted her based on her

18   membership in a group of similarly situated individuals who had

19   refused the advances of gang members.    See In re M-E-V-G-, 26

20   I. & N. Dec. at 232 (“[A] ‘particular social group’ cannot be

21   defined exclusively by the claimed persecution, . . . it must

22   be ‘recognizable’ as a discrete group by others in the society,

                                    4
1    and . . . it must have well-defined boundaries.”).

2        Nor did Jacobo-Melendres establish that she was targeted

3    on account of an imputed anti-gang political opinion.               To

4    demonstrate   that    persecution    or   a   well-founded   fear   of

5    persecution is on account of an applicant’s political opinion,

6    the applicant must “show, through direct or circumstantial

7    evidence, that the persecutor’s motive to persecute arises from

8    the applicant’s political belief,” rather than merely by the

9    persecutor’s opinion.     Yueqing Zhang v. Gonzales, 426 F.3d 540,

10   545 (2d Cir. 2005) (emphasis added).          The persecution may be

11   on account of an opinion imputed to the applicant by the

12   persecutor, regardless of whether or not this imputation is

13   accurate.   See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir.

14   2005).   Jacobo-Melendres did not assert a political opinion

15   claim in her asylum application, and she testified that the gang

16   member targeted her based solely on his interest in having a

17   relationship with her.     Without any direct or circumstantial

18   evidence to support a claim that she was targeted or would be

19   targeted her on account of her political opinion, imputed or

20   otherwise, the BIA did not err in finding that she failed to

21   establish her eligibility for asylum or withholding of removal

22   on that ground.      See Yueqing Zhang, 426 F.3d at 545.

                                      5
1        Accordingly, because Jacobo-Melendres failed to establish

2    that her past harm or fear of future harm were on account of

3    a protected ground as required for asylum and withholding of

4    removal, we deny the petition for review to this extent.             See

5    8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

6    Convention Against Torture

7        To receive withholding or deferral of removal under the

8    CAT, an applicant must “establish that it is more likely than

9    not that he or she would be tortured if removed to the proposed

10   country of removal.”   8 C.F.R. § 1208.16(c)(2).        Unlike asylum

11   and withholding of removal, CAT relief does not require a nexus

12   to any ground.   See id.   “Torture is defined as any act by which

13   severe pain or suffering, whether physical or mental, is

14   intentionally inflicted on a person . . . by or . . . with the

15   consent or acquiescence of a public official or other person

16   acting in an official capacity.”        8 C.F.R. § 1208.18(a)(1); see

17   Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir. 2007);

18   Khouzam   v.   Ashcroft,   361   F.3d    161,   171   (2d   Cir.   2004)

19   (“[T]orture requires only that government officials know of or

20   remain willfully blind to an act and thereafter breach their

21   legal responsibility to prevent it.”).

22       The agency provided insufficient analysis for its

                                       6
1    conclusion that Jacobo-Melendres failed to demonstrate a

2    likelihood of torture or that Guatemalan officials would

3    acquiesce in her torture.   See Poradisova v. Gonzales, 420 F.3d

4    70, 77 (2d Cir. 2005) (explaining that “we require a certain

5    minimum level of analysis from the IJ and BIA opinions . . .,

6    and indeed must require such if judicial review is to be

7    meaningful”).   In assessing whether an applicant has satisfied

8    her burden of proof, the agency must consider all evidence

9    relevant to the possibility of future torture, including

10   evidence of past torture, “[e]vidence that the applicant could

11   relocate to a part of the country of removal where . . . she

12   is not likely to be tortured, . . . [e]vidence of gross, flagrant

13   or mass violations of human rights within the country of

14   removal,” and other relevant information on country conditions.

15   8 C.F.R. § 1208.16(c)(3).

16        In the context of denying CAT relief, the agency failed to

17   analyze any of the material evidence.    That evidence included

18   the following: Jacobo-Melendres’s testimony that a gang member

19   in Guatemala stalked and harassed her almost daily for four

20   months and attempted to kidnap her on one occasion in 2012; her

21   testimony that the gang member continues to call her cell phone

22   (which she left with her mother in Guatemala); her testimony

                                     7
1    that she did not trust the police to help her; letters from her

2    mother, sister, and sister’s father-in-law corroborating her

3    claim;   and   country    reports   reflecting       that   rape,   sexual

4    offenses, and femicide are serious problems in Guatemala and

5    that impunity for the perpetrators of such crimes remains

6    extremely high because police are not equipped to investigate

7    or assist victims.       Given the agency’s failure to explain its

8    CAT ruling or analyze any of this evidence, we grant the petition

9    to this extent and remand for further consideration of the CAT

10   claim.   See 8 C.F.R. § 1208.16(c); see also Poradisova, 420

11   F.3d at 77.

12        For the foregoing reasons, the petition for review is

13   DENIED in part and GRANTED in part and REMANDED for further

14   proceedings consistent with this order.             As we have completed

15   our review, any stay of removal that the Court previously

16   granted in this petition is VACATED, and any pending motion for

17   a stay of removal in this petition is DISMISSED as moot.              Any

18   pending request for oral argument in this petition is DENIED

19   in   accordance   with    Federal       Rule   of   Appellate   Procedure

20   34(a)(2), and Second Circuit Local Rule 34.1(b).

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


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