     17-1926
     Ramirez v. Barr
                                                                                   BIA
                                                                              Weisel, IJ
                                                                       A208 283 098/099


                            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 17th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   SONIA YAMILETH RAMIREZ,
14   MARIA JOSE CASTELLANOS-RAMIREZ,
15            Petitioners,
16
17                     v.                                        17-1926
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                  Nicholas J. Mundy, Brooklyn, NY.
25
26   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
27                                     Attorney General; Brianne Whelan
28                                     Cohen, Senior Litigation Counsel;
29                                     Lindsay Corliss, Trial Attorney,
30                                     Office of Immigration Litigation,
31                                     United States Department of
1                                Justice, Washington, DC.
2
3        UPON DUE CONSIDERATION of this petition for review of a

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

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

6    is DENIED.

7        Petitioners Sonia Yamileth Ramirez (“Ramirez”) and Maria

8    Jose Castellanos-Ramirez, natives and citizens of Honduras,

9    seek review of a May 18, 2017, decision of the BIA affirming

10   an October 20, 2016, decision of an Immigration Judge (“IJ”)

11   denying Ramirez’s application for asylum, withholding of

12   removal, and relief under the Convention Against Torture

13   (“CAT”).      In   re   Sonia   Yamileth   Ramirez,   Maria   Jose

14   Castellanos-Ramirez, Nos. A 208 283 098/099 (B.I.A. May 18,

15   2017), aff’g No. A 208 283 098/099 (Immig. Ct. N.Y. City Oct.

16   20, 2016).     We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       We have reviewed the IJ’s decision as supplemented by

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

20   Cir. 2005).   We review factual findings for substantial

21   evidence and legal issues de novo.     See 8 U.S.C.

22   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

23   (2d Cir. 2009).

                                      2
1    Asylum and Withholding of Removal

2        An applicant for asylum or withholding of removal “must

3    establish that race, religion, nationality, membership in a

4    particular social group, or political opinion was or will

5    be at least one central reason for” the claimed

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

7    1231(b)(3)(A) (withholding); Matter of C-T-L, 25 I. & N.

8    Dec. 341, 346 (B.I.A. 2010) (holding that the “one central

9    reason” standard also applies to withholding of removal).

10   Ramirez asserts that she was targeted and fears persecution

11   on account of her membership in a particular social group

12   of educated Honduran women employed in high-ranking

13   positions.   To constitute a particular social group, a

14   group must be “(1) composed of members who share a common

15   immutable characteristic, (2) defined with particularity,

16   and (3) socially distinct within the society in question.”

17   Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014);

18   see Paloka v. Holder, 762 F.3d 191, 195–97 (2d Cir. 2014).

19   An “immutable characteristic” is one that members of the

20   group “either cannot change, or should not be required to

21   change because it is fundamental to their individual

22   identities or consciences.”   Ucelo-Gomez v. Mukasey, 509

                                   3
1    F.3d 70, 72-73 (2d Cir. 2007) (internal quotation marks

2    omitted).    “Particularity refers to whether the group is

3    sufficiently distinct that it would constitute a discrete

4    class of persons.”    Matter of W-G-R-, 26 I. & N. Dec. 208,

5    210 (BIA 2014) (internal quotation marks omitted).      “To be

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

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

8    240.    We review for substantial evidence whether an

9    applicant was targeted on account of group membership, see

10   Edimo-Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir.

11   2006), but review the agency’s determination of whether a

12   group is cognizable de novo, see Paloka, 762 F.3d at 195.

13   We find no error in the agency’s conclusion that Ramirez

14   failed to identify a cognizable social group of “educated

15   Honduran women with high-ranking positions, pursuing a

16   career” or that she was targeted based on those

17   characteristics.

18          “A particular social group must be defined by

19   characteristics that provide a clear benchmark for

20   determining who falls within the group.”     Matter of M-E-V-

21   G-, 26 I&N Dec. at 239.    We have agreed with the BIA’s

22   determination that a group based on wealth is not

                                    4
1    sufficiently particular: “When the harm visited upon

2    members of a group is attributable to the incentives

3    presented to ordinary criminals rather than to persecution,

4    the scales are tipped away from considering those people a

5    ‘particular social group’ within the meaning of the INA.”

6    Ucelo-Gomez, 509 F.3d at 73.    Ramirez attempts to

7    distinguish her group from the group of wealthy Guatemalans

8    at issue in Ucelo-Gomez by asserting that the gang targeted

9    her because it sought to overcome her ability, as a

10   Honduran woman, to hold a “high-ranking” position and her

11   education made her a target because it qualified her for

12   such a position.   But Ramirez did not show that the

13   characteristics of being “educated” or employed in a “high-

14   ranking position” have “commonly accepted definitions” in

15   Honduran society such that the social group has “definable

16   boundaries.”   Matter of W-G-R-, 26 I. & N. Dec. at 214.

17   Accordingly, Ramirez did not demonstrate that educated,

18   Honduran women with high-ranking positions can be defined

19   with sufficient particularity as required for recognition

20   as a particular social group.       See Paloka, 762 F.3d at 195–

21   96.

22         Moreover, even assuming such a group would be cognizable,

                                     5
1    Ramirez did not show that the gang members targeted her for

2    any reason other than money.          Her affidavit mentioned that

3    she worked for the institute for Honduran Development and

4    that gangs in Honduras “kill and extort innocent people,

5    especially   those   who   are   financially    stable.”   Ramirez

6    testified that she attended university, but that her highest

7    level of completed education was high school, that she worked

8    in administrative roles for a micro-finance company for six

9    years, and that gang members targeted her for extortion

10   because of her employment and her perceived access to company

11   funds.   Ramirez did not mention her proposed social group in

12   her application or before the IJ, nor did she testify that

13   the gang targeted her because she was educated or female or

14   because her position with her company was high-ranking or

15   powerful.    Although Ramirez’s country conditions evidence

16   reveals substantial violence in Honduras, including violence

17   against women, the evidence does not show that women in the

18   workforce, much less those who were educated and in high-

19   ranking positions, are particular targets of gangs.        Ramirez

20   established only that she was targeted for extortion because

21   of her perceived wealth and employment status, which, absent

22   more, are not cognizable social groups.        See Ucelo-Gomez, 509

                                       6
1    F.3d at 73; Matter of Acosta, 19 I. & N. Dec. 211, 234 (B.I.A.

2    1985) (holding that taxi drivers targeted for persecution did

3    not belong to a social group because membership could be

4    changed).

5        Because Ramirez did not establish either a cognizable

6    social group or that the gang targeted her for any reason

7    other than her money or perceived access to money, she did

8    not establish her eligibility for asylum of withholding of

9    removal.    See 8 U.S.C. §§ 1158(b)(1)(B)(i) (asylum),

10   1231(b)(3)(A) (withholding).

11       CAT

12       An applicant for CAT relief must show that “it is more

13   likely than not” that she will be tortured, but need not

14   show any link to a protected ground.    See 8 C.F.R.

15   § 1208.16(c)(2); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d

16   Cir. 2004).   To constitute torture, the harm must be

17   “inflicted by or at the instigation of or with the consent

18   or acquiescence of a public official or other person acting

19   in an official capacity.”   8 C.F.R. § 1208.18(a)(1).

20   “Acquiescence of a public official requires that the public

21   official, prior to the activity constituting torture, have

22   awareness of such activity and thereafter breach his or her

                                    7
1    legal responsibility to intervene to prevent such

2    activity.”   Id. § 1208.18(a)(7).    Cognizable acquiescence

3    “requires only that government officials know of or remain

4    willfully blind to an act and thereafter breach their legal

5    responsibility to prevent it.”      Khouzam, 361 F.3d at 171.

6    In assessing the likelihood of torture, “all evidence

7    relevant to the possibility of future torture shall be

8    considered, including, but not limited to . . . [e]vidence

9    of past torture,” the possibility of relocation within the

10   country, “[e]vidence of gross, flagrant or mass violations

11   of human rights . . . and . . . relevant information

12   regarding conditions in the country of removal.”     8 C.F.R.

13   § 1208.16(c)(3).

14       The agency did not err in concluding that Ramirez failed

15   to show that the Honduran government will more likely than

16   not acquiesce to her torture by gangs.        Ramirez testified

17   that she was first approached by gang members in March 2015,

18   but did not file a police report until June 2015.       And she

19   admitted that she could not identify the gang members because

20   they covered their faces and told her not to look at them.

21   Although Ramirez said that the police “did not solve anything”

22   and did not tell her they would protect her, they took the

                                   8
1    report and followed up with her.       Ramirez does not explain

2    how the police could have solved her problem in the few days

3    between    her   report   and   her   departure   from   Honduras.

4    Accordingly, she did not meet her burden of showing that the

5    police would likely acquiesce to her torture by gang members.

6    See Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2013)

7    (“Evidence that the police were aware of a particular crime,

8    but failed to bring the perpetrators to justice, is not in

9    itself sufficient to establish acquiescence in the crime.”).

10       For the foregoing reasons, the petition for review is

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

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.     Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

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

17   34.1(b).

18                                   FOR THE COURT:
19                                   Catherine O’Hagan Wolfe,
20                                   Clerk of Court
21




                                      9
