     16-2281
     Rivas Rivas v. Sessions
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A205 497 469
                               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 14th day of March, two thousand eighteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ALCIDES VLADIMIR RIVAS RIVAS,
14            Petitioner,
15
16                      v.                                       16-2281
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, Jennifer P.
27                                        Levings, Senior Litigation
28                                        Counsel, Kristin Moresi, Trial
29                                        Attorney, Office of Immigration
30                                        Litigation, United States
31                                        Department of Justice, Washington,
32                                        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 Alcides Vladimir Rivas Rivas, a native and

6    citizen of El Salvador, seeks review of a June 3, 2016,

7    decision of the BIA affirming a December 2, 2014, decision of

8    an Immigration Judge (“IJ”) denying Rivas Rivas’s application

9    for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Alcides Bladimir

11   Rivas Rivas,1 No. A205 497 469 (B.I.A. June 3, 2016), aff’g

12   No. A205 497 469 (Immig. Ct. Hartford Dec. 2, 2014).            We

13   assume the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15         Under the circumstances of this case, we review both the

16   IJ’s and the BIA’s opinions “for the sake of completeness.”

17   Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006).             The

18   standards of review are well established.          See 8 U.S.C.

19   § 1252(b)(4)(B);     Gjolaj   v.   Bureau   of    Citizenship    &



     1   The record uses both Vladimir and Bladimir.
                                     2
1    Immigration Servs., 468 F.3d 140, 142 (2d Cir. 2006).

2        To establish eligibility for withholding of removal

3    based on membership in a particular social group, an

4    “applicant must establish both that the group itself was

5    cognizable, . . . and that the alleged persecutors targeted

6    the applicant on account of h[is] membership in that

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

8    (internal quotation marks and citation omitted).    To be

9    cognizable, a social group must be “(1) composed of members

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

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

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

13   227, 237 (B.I.A. 2014); see also Matter of W-G-R-, 26 I. &

14   N. Dec. 208, 212-18 (B.I.A. 2014).    “‘Particularity’ refers

15   to whether the group is ‘sufficiently distinct’ that it

16   would constitute ‘a discrete class of persons.’”     Matter of

17   W-G-R-, 26 I. & N. at 210 (quoting Matter of S-E-G-, 24 I.

18   & N. Dec. 579, 584 (B.I.A. 2008)).    Social distinction

19   requires that the shared traits that characterize the

20   social group be sufficient for the group to “be perceived

21   as a group by society.”    Id. at 216; see also Matter of M-
                                     3
1    E-V-G-, 26 I. & N. Dec. at 240; Paloka, 762 F.3d at 196

2    (“[W]hat matters is whether society as a whole views the

3    group as socially distinct, not the persecutor’s

4    perception.”).    Once the applicant has established a

5    cognizable social group, he must demonstrate a nexus

6    between his membership in that group and the persecution he

7    suffered.    Paloka, 762 F.3d at 196-97.       The agency did not

8    err in denying relief because, as discussed below, Rivas

9    Rivas failed to demonstrate membership in a cognizable

10   particular social group or that he was persecuted on

11   account of his membership in such a group.

12        Rivas   Rivas’s   proposed    social   group,    “young   male[s]

13   opposing gang membership in El Salvador . . . who are unable

14   to   leave   MS13,”    lacks   both     particularity    and   social

15   distinction.     Pet. Br. at 17.       The proposed social group is

16   overly diffuse, amorphous, and subjective.           See Matter of W-

17   G-R-, 26 I. & N. Dec. at 221 (concluding that individuals who

18   had renounced gang membership was too diffuse, broad, and

19   subjective); Matter of S-E-G-, 24 I. & N. Dec. 579, 585

20   (B.I.A. 2008) (concluding that young men who resisted gang

21   recruitment was amorphous and included “a potentially large
                                        4
1    and diffuse segment of society”).         Because Rivas Rivas failed

2    to “provide a clear benchmark for determining who falls within

3    the group,” the agency did not err in holding his proposed

4    group not legally cognizable.          Matter of M-E-V-G, 26 I. & N.

5    Dec. at 239.    Rivas Rivas’s proposed group also lacks social

6    distinction.      He   presented   no     evidence    that    Salvadoran

7    society regards “young male[s] opposing gang membership” as

8    a distinct social group, or that the proposed group is treated

9    differently in any way by society.          See Matter of W-G-R-, 27

10   I. & N. Dec. at 222 (denying relief where “[t]he record

11   contains scant evidence that Salvadoran society considers

12   former gang members who have renounced their gang membership

13   as a distinct social group”).

14       The     agency’s   decision    that     Rivas    Rivas    failed   to

15   establish a nexus between his claimed persecution and his

16   purported    membership   in   a       particular    social   group    is

17   supported by substantial evidence.          Rivas Rivas presented no

18   evidence that Salvadoran gangs were more likely to persecute

19   members of his proposed social group more than members of any

20   other groups in Salvadoran society.           Instead, his evidence

21   indicated that gang violence in El Salvador is widespread and
                                        5
1    arises from, among other issues, territorial clashes between

2    different gangs or between gang factions and security forces.

3    Matter of M-E-V-G-, 26 I. & N. Dec. at 250 (noting that

4    “evidence of indiscriminate gang violence and civil strife”

5    may undermine an applicant’s “attempt to establish a nexus

6    between any past or feared harm and a protected ground”)

7    (citing Matter of S-E-G-, 24 I. & N. Dec. 579, 588 (B.I.A.

8    2008)).

9        Rivas Rivas also argues that he was persecuted for his

10   imputed political opinion of “wanting to leave the MS13,” and

11   that his family constitutes a cognizable social group being

12   targeted because of his attempt to withdraw from the gang.

13   Pet. Br. at 23.     Rivas Rivas did not raise these arguments

14   before the BIA, and we generally do not consider unexhausted

15   issues on appeal.    Lin Zhong v. U.S. Dep’t of Justice, 480

16   F.3d 104, 107 n.1 (2d Cir. 2007).   In any event, Rivas Rivas

17   has presented no evidence that the gang members imputed a

18   political opinion to him or that this political opinion claim

19   is in any way distinguishable from his social group claim.

20   Matter of W-G-R-, 26 I. & N. Dec. at 223-24 (discussing nexus

21   requirement).
                                    6
1        As for his argument regarding his family group, Rivas

2    Rivas appears to argue both that his family stands alone as

3    a cognizable particular social group and that it falls under

4    the umbrella of “young men persecuted and subsequently killed

5    [by] the MS13.”   Pet. Br. at 25.    But Rivas Rivas failed to

6    present evidence that gang members target the families of

7    young men who oppose or renounce gang membership over other

8    segments of Salvadoran society.     See Matter of M-E-V-G-, 26

9    I. & N. Dec. at 250-51.    And the BIA has rejected social

10   groups based on “family members of Salvadoran youth . . . who

11   have rejected or resisted membership in the gang” as “too

12   amorphous.”   Matter of S-E-G-, 24 I. & N. Dec. at 585

13   (internal quotation marks omitted).      Finally, Rivas Rivas

14   seeks to delineate his umbrella group by the injury inflicted

15   on it by the gang, but cognizable social groups cannot be

16   defined solely by the harm its members have suffered.   Ucelo-

17   Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“[A] social

18   group cannot be defined exclusively by the fact that its

19   members have been subjected to harm.” (internal quotation

20   marks and citation omitted)).

21
                                     7
1           The agency also reasonably determined that Rivas Rivas

2    did not show that he would more likely than not be tortured

3    by or with the acquiescence of a government official in El

4    Salvador.      To succeed on a claim for CAT relief, a petitioner

5    must    show    that   “government   officials    know     of   or   remain

6    willfully blind to an act” of torture.            Khouzam v. Ashcroft,

7    361 F.3d 161, 171 (2d Cir. 2004).            Rivas Rivas argues that

8    he met this burden with his evidence that the government in

9    El Salvador is corrupt.         Though the State Department report

10   he submitted reflects corruption in the judicial system, it

11   also    describes      the   government’s   efforts   to    combat     such

12   corruption,      including     dismissing   and   suspending     multiple

13   judges.        Moreover, the agency reasonably determined that

14   torture was not “more likely than not” because Rivas Rivas

15   testified that he was able to avoid the gang from the time he

16   was attacked in 2001 to when he left El Salvador in 2006.

17   Khouzam, 361 F.3d at 168 (setting out standard for CAT

18   relief).       As such, the agency’s determination that Rivas

19   Rivas failed to demonstrate torture by or with the willful

20   blindness of government officials is supported by substantial

21   evidence.
                                          8
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O’Hagan Wolfe, Clerk




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