    16-904
    Guzman-Alvarez v. Sessions
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A206 638 444

                           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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    27th day of October, two thousand seventeen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    JACQUELINE LISSETTE GUZMAN-ALVAREZ,
             Petitioner,

                     v.                                              16-904
                                                                     NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                     Kathryn E. Cimone, Jadeja & Cimone,
                                        LLP, Hempstead, N.Y.

    FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
                                        Attorney   General;    Jessica   A.
                                        Dawgert, Senior Litigation Counsel;
                            Tracey N. McDonald, Trial Attorney,
                            Office of Immigration Litigation,
                            United States Department of Justice,
                            Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

     Petitioner Jacqueline Lissette Guzman-Alvarez, a native

and citizen of El Salvador, seeks review of a February 23, 2016

decision of the BIA affirming an August 18, 2015 decision of

an   Immigration    Judge   (“IJ”)   denying    Guzman-Alvarez’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).   In re Jacqueline

Lissette Guzman-Alvarez, No. A206 638 444 (B.I.A. Feb. 23,

2016), aff’g No. A206 638 444 (Immig. Ct. N.Y. City Aug. 18,

2015).    We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

     Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA, i.e., minus the grounds

that the BIA did not reach.    See Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 522 (2d Cir. 2005).      We therefore

review only the agency’s conclusion that Guzman-Alvarez failed

to establish her membership in a cognizable particular social


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group.     We review factual findings under the substantial

evidence standard and questions of law—including the question

whether a group constitutes a particular social group—de novo.

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

    “The burden of proof is on the applicant to establish that

the applicant is a refugee,” 8 U.S.C. § 1158(b)(1)(B)(i), and

“the applicant [must] satisf[y] the trier of fact that the

applicant’s testimony is credible, is persuasive, and refers

to specific facts sufficient to demonstrate that the applicant

is a refugee,” id. § 1158(b)(1)(B)(ii).            One way that an

applicant    can    demonstrate    eligibility     for     asylum   and

withholding of removal is to show that she was persecuted on

account of her membership in a particular social group.             Id.

§§ 1158(b)(1)(B)(i); 1231(b)(3)(A).         To be cognizable, a

particular social group must satisfy all three of the following

requirements.      Paloka, 762 F.3d at 195-96.     First, it must be

composed    of     members   who   “share   a     common     immutable

characteristic.”      Id. at 195 (quoting In re Acosta, 19 I & N

Dec. 211, 233 (BIA 1985)).     An immutable characteristic is one

that members of the group “either cannot change, or should not

be required to change because it is fundamental to their

individual identities or consciences.”           Id. (quoting In re



                                   3
Acosta, 19 I & N Dec. at 233).       Second, the particular social

group must be defined with particularity, meaning that the group

must be “discrete and have definable boundaries—it must not be

amorphous, overbroad, diffuse, or subjective.”           Id. at 196

(quoting Matter of M-E-V-G-, 26 I & N Dec. 227, 239 (BIA 2014)).

Third, the particular social group must be “socially distinct

within the society in question,” meaning that it is “perceived

as a group by society.”    Id. (quoting Matter of M-E-V-G-, 26

I & N Dec. at 237, 240).

    The BIA has determined that women who have fled domestic

violence may qualify for asylum as members of a particular

social   group   when,   based   on     their   circumstances   and

circumstances in the country from which they have fled, each

of those requirements is met.    Matter of A-R-C-G-, 26 I & N Dec.

388, 390 (BIA 2014) (concluding that a proposed group of

“married women in Guatemala who are unable to leave their

relationship” satisfied the three requirements for a particular

social group).   The BIA’s decision in Matter of A-R-C-G- offers

guidance for this case-specific inquiry.        We conclude that, in

light of the principles expressed in Matter of A-R-C-G- and the

insufficient and vague evidence presented below, the agency did

not err in concluding that Guzman-Alvarez failed to carry her



                                 4
burden of establishing membership in a cognizable particular

social group.      Specifically, Guzman-Alvarez did not present

sufficient evidence to fulfill the “immutable characteristic”

and “defined-with-particularity” requirements.

    First, as to the “immutable characteristic” requirement,

gender is an immutable characteristic and the BIA has determined

that “marital status can be an immutable characteristic where

the individual is unable to leave the relationship.”             Id. at

392-93.     When     considering    whether    a    characteristic   is

immutable, “adjudicators must consider a respondent’s own

experiences, as well as more objective evidence, such as

background country information.”        Id. at 393.      Here, based on

the evidence put forward by Guzman-Alvarez, the agency did not

err in concluding that Guzman-Alvarez was ineligible for

relief.

    The standards set forth in the Matter of A-R-C-G- refer to

“marital   status”    and   the   importance   of    a   fact-specific,

case-by-case inquiry in assessing whether “dissolution of a

marriage could be contrary to religious or other deeply held

moral beliefs” or whether “dissolution is possible when viewed

in light of religious, cultural, or legal constraints” and the

applicant’s “own experiences.”         Id. at 392-93.      In Matter of



                                   5
A-R-C-G-, the applicant “suffered repugnant abuse by her

husband,” including “weekly beatings,” a broken nose, rape, and

an incident in which her husband threw paint thinner on the

applicant, burning her breast.        Id. at 389.   The applicant

“contacted the police several times but was told that they would

not interfere in a marital relationship.     On one occasion, the

police came to her home after her husband hit her on the head,

but he was not arrested.”    Id.    The BIA in Matter of A-R-C-G-

found that “it [wa]s significant that the [applicant] sought

protection from her spouse’s abuse and that the police refused

to assist her because they would not interfere in a marital

relationship.”    Id. at 393.      Additionally, the applicant in

Matter of A-R-C-G- “repeatedly tried to leave the relationship

by staying with her father, but her husband found her and

threatened to kill her if she did not return to him.”      Id. at

389.

       Here, in contrast, although Guzman-Alvarez and Santos had

three children and lived together as a family for approximately

14 years, they never married.         In Matter of A-R-C-G-, the

applicant was unable to leave her husband because he followed

her and threatened her with death if she did not return.

However, Guzman-Alvarez testified that, since April 2014, she



                                6
had lost communication with Santos (although a female cousin

reported that Santos had sent the cousin a Facebook message

stating that he was looking for her).         Additionally, unlike the

applicant   in   Matter     of    A-R-C-G-,     Guzman-Alvarez       never

complained to the police.        Finally, in the proceedings below,

the agency focused on evidence showing that Guzman-Alvarez was

able to run errands and escape to the United States, which was

rebutted only by vague and undetailed testimony, to support its

finding that the applicant had not shown an inability to leave

her relationship.       Based on our review of the record, we find

no error in the conclusion that Guzman-Alvarez failed to meet

the “immutable characteristic” requirement.

    Substantial     evidence     similarly    supports      the   agency’s

determination    that    Guzman-Alvarez      failed    to   satisfy   the

“defined-with-particularity” requirement.             A social group is

“defined with particularity” when there is a “clear benchmark

for determining who falls within the group.”           Paloka, 762 F.3d

at 196 (quoting Matter of M-E-V-G-, 26 I & N Dec. at 239); see

Matter of A-R-C-G-, 26 I & N Dec. at 393 (looking to the police

department’s refusal to protect the applicant when determining

that the applicant satisfied the particularity requirement).

Here, the agency concluded that Guzman-Alvarez’s social group



                                   7
was too broad.   This conclusion is amply supported by the record

which shows that Guzman-Alvarez was not married to her abuser,

never complained to the police, and otherwise offered only vague

testimony in arguing that her particular social group was

defined with particularity.    Taking the record as a whole, we

again find no error in the conclusion that Guzman-Alvarez failed

to meet the “defined-with-particularity” requirement.

    We have considered Guzman-Alvarez’s remaining claims and

conclude that they, too, are without merit.    For the foregoing

reasons, we DENY the petition for review.    Any pending request

for oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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