     15-2210
     Hernandez v. Barr
                                                                                     BIA
                                                                              Vomacka, IJ
                                                                            A073 644 702
                                                                     A200 816 645/650/651

                              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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 5th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   VIDAL A. HERNANDEZ, JOSE VIDAL
14   HERNANDEZ-CLAROS, MARIA DEL
15   ROSARIO HERNANDEZ-CLAROS,
16   ROSARIO CLAROS-de HERNANDEZ,
17                 Petitioners,
18
19                       v.                                      15-2210
20                                                               NAC
21   WILLIAM P. BARR, UNITED STATES
22   ATTORNEY GENERAL,
23                 Respondent.
24   _____________________________________
25
26
27   FOR PETITIONERS:                     Bruno J. Bembi, Hempstead, NY.
28
1    FOR RESPONDENT:             Chad A. Readler, Acting Assistant
2                                Attorney General; Leslie McKay,
3                                Senior Litigation Counsel;
4                                Madeline Henley, Attorney, Office
5                                of 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

12   is DENIED.

13       Lead petitioner Rosario Claros-de Hernandez

14   (“Hernandez”), her husband Vidal A. Hernandez, and their

15   children Jose Vidal Hernandez-Claros and Maria del Rosario

16   Hernandez-Claros, natives and citizen of El Salvador, seek

17   review of a June 30, 2015, decision of the BIA affirming a

18   November 6, 2013, decision of an Immigration Judge (“IJ”)

19   denying Hernandez’s application for asylum, withholding of

20   removal, and relief under the Convention Against Torture

21   (“CAT”).1    In re Vidal A. Hernandez, et al., Nos. A 073 644




     1 In 2013, Vidal Hernandez’s removal proceedings were
     consolidated with his wife’s and children’s proceedings. He and
     the children proceeded only as derivative applicants on
     Hernandez’s asylum application. See 8 U.S.C. § 1158(b)(3).

                                     2
1    702, A200 816 645/650/651 (B.I.A. June 30, 2015), aff’g No.

2    A 073 644 702 , A200 816 645/650/651 (Immig. Ct. N.Y. City

3    Nov. 6, 2013).   We assume the parties’ familiarity with the

4    underlying facts and procedural history in this case.

5        We have reviewed the IJ’s decision as modified by the

6    BIA, reaching only the nexus determination and denial of

7    CAT relief.   See Xue Hong Yang v. U.S. Dep’t of Justice,

8    426 F.3d 520, 522 (2d Cir. 2005).    We +assume Hernandez’s

9    credibility because although the IJ expressed concerns,

10   there is no explicit adverse credibility ruling and the BIA

11   did not discuss credibility.     See 8 U.S.C.

12   § 1158(b)(1)(B)(iii); Yan Chen v. Gonzales, 417 F.3d 268,

13   271-72 (2d Cir. 2005).   We review the agency’s legal

14   conclusions de novo and its factual findings under the

15   substantial evidence standard.     Y.C. v. Holder, 741 F.3d

16   324, 332 (2d Cir. 2013).

17       Asylum & Withholding of Removal.     For asylum and

18   withholding of removal, an “applicant must establish that

19   race, religion, nationality, membership in a particular

20   social group, or political opinion was or will be at least

21   one central reason for” the claimed persecution.    8 U.S.C.
                                    3
1    §§ 1158(b)(1)(B)(i) (asylum), 1231(b)(3)(A) (withholding);

2    Matter of C-T-L, 25 I. & N. Dec. 341, 346 (B.I.A. 2010)

3    (holding that the “one central reason” standard also

4    applies to withholding of removal).   “Courts review de novo

5    the legal determination of whether a group constitutes a

6    ‘particular social group’ under the INA.”   Paloka v.

7    Holder, 762 F.3d 191, 195 (2d Cir. 2014).   To constitute a

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

9    members who share a common immutable characteristic,

10   (2) defined with particularity, and (3) socially distinct

11   within the society in question.”   Matter of M-E-V-G-, 26 I.

12   & N. Dec. 227, 237 (B.I.A. 2014); see also Paloka, 762 F.3d

13   at 195-97.

14       The agency did not err in concluding that Hernandez

15   failed to demonstrate that she was persecuted on account of

16   her membership in a cognizable social group.   Although she

17   checked a box on her asylum application to indicate that

18   she was seeking relief based on her membership in a

19   particular social group, she did not articulate a proposed

20   social group or any other protected ground before the

21   agency.   She now argues that she was threatened by MS-13
                                   4
1    gang members based on her membership in a particular social

2    group of “people that refused to acquiesce to gang

3    threats.”   Petitioner’s Br. at 9-10.   However, “a

4    particular social group cannot be defined exclusively by

5    the claimed persecution, . . . it must be recognizable as a

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

7    have well-defined boundaries.”    Matter of M-E-V-G-, 26 I. &

8    N. Dec. at 232 (internal quotation marks omitted)).

9    Hernandez alleged fear of criminal activity by gangs

10   without alleging that they had targeted her for any

11   particular reason: “When the harm visited upon members of a

12   group is attributable to the incentives presented to

13   ordinary criminals rather than to persecution, the scales

14   are tipped away from considering those people a ‘particular

15   social group’ within the meaning of the INA.”    Ucelo-Gomez

16   v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (rejecting

17   proposed social group of “wealthy Guatemalans”).      Harm

18   suffered as a result of “general crime conditions” does not

19   constitute persecution on account of a protected ground.

20   Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999).

21
                                   5
1        CAT Relief.    There is no nexus requirement for CAT

2    relief.   “[T]he CAT expressly prohibits the United States

3    from returning any person to a country in which it is more

4    likely than not that he or she would be in danger of being

5    subjected to torture.”    Khouzam v. Ashcroft, 361 F.3d 161,

6    168 (2d Cir. 2004) (internal quotation marks omitted).

7    “Torture is defined as any act by which severe pain or

8    suffering, whether physical or mental, is intentionally

9    inflicted on a person . . . by or at the instigation of or

10   with the consent or acquiescence of a public official or

11   other person acting in an official capacity.”     8 C.F.R.

12   § 1208.18(a)(1).   Acquiescence, in turn, “requires that the

13   public official, prior to the activity constituting

14   torture, have awareness of such activity and thereafter

15   breach his or her legal responsibility to intervene to

16   prevent such activity.”    Id. § 1208.18(a)(7).   The

17   applicant has the burden of proving that torture is “more

18   likely than not” to occur.    Id. § 1208.16(c)(2).

19       The country conditions evidence and Hernandez’s own

20   description of the response to her extortion complaint

21   reflect that the Salvadoran government is not acquiescent
                                    6
1    or complicit. The local prosecutor’s office assigned an

2    investigator to her case and requested that she help the

3    authorities by delivering counterfeit money, but Hernandez

4    declined to participate because she feared the gang members

5    would retaliate against her.   She also did not provide the

6    authorities with her persecutor’s full name or nickname.

7    As the country conditions evidence reflects, the government

8    is acting to combat gang violence and extortion, including

9    criminal conduct run by gang members in prisons, albeit

10   with limited success.   The record therefore does not compel

11   the conclusion that Salvadoran authorities are likely to

12   acquiesce in any harm Hernandez faces from MS-13 or other

13   gangs.    See 8 U.S.C. § 1252(b)(4)(B) (“The administrative

14   findings of fact are conclusive unless any reasonable

15   adjudicator would be compelled to conclude to the

16   contrary.”).

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

20   is VACATED, and any pending motion for a stay of removal in

21   this petition is DISMISSED as moot.   Any pending request
                                    7
1   for oral argument in this petition is DENIED in accordance

2   with Federal Rule of Appellate Procedure 34(a)(2), and

3   Second Circuit Local Rule 34.1(b).

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




                                 8
