         13-1152
         Lopez-Mendoza v. Holder
                                                                                        BIA
                                                                                  Straus, I.J.
                                                                               A201 242 380
                               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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       CLARA LOPEZ-MENDOZA,
14                Petitioner,
15
16                          v.                                  13-1152
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Gregory     C.         Osakwe, Hartford,
24                                      Connecticut.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; Linda S. Wernery, Assistant
28                                      Director; Kerry A. Monaco, Trial
29                                      Attorney; Kathryn M. Martinez, Law
30                                      Clerk,    Office   of    Immigration
 1                                Litigation, United States Department
 2                                of Justice, Washington, D.C.

 3       UPON DUE CONSIDERATION of this petition for review of a

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

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

 6   review is DENIED.

 7       Clara Lopez-Mendoza, a native and citizen of Mexico,

 8   seeks   review    of   a   March   22,       2013,   decision   of    the    BIA

 9   affirming the September 5, 2012, decision of an Immigration

10   Judge (“IJ”) denying asylum, withholding of removal, and

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

12   Clara Lopez-Mendoza, No. A201 242 380 (B.I.A. Mar. 22, 2013),

13   aff’g No. A201 242 380 (Immig. Ct. Hartford Sept. 5, 2012).

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history of this case.

16       Under the circumstances of this case, we review the IJ’s

17   decision   as    supplemented      by       the   BIA.   See    Yan   Chen    v.

18   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).               The standards of

19   review are well established.                8 U.S.C. § 1252(b)(4)(B); see

20   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21   We address only withholding of removal, as Lopez-Mendoza does

22   not challenge the denial of asylum or CAT relief. See Yueqing

23   Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).

                                             2
 1       Lopez-Mendoza argues that she identified a cognizable

 2   social group for purposes of establishing her eligibility for

 3   withholding of removal.         She defines this social group in her

 4   brief as: “returning Mexicans from the United States who are

 5   perceived by miscreants back in Mexico as wealthy and who are

 6   therefore        very     likely   targets        of   violent     crimes.”

 7   Petitioner’s Br. 5-6.

 8       The term “particular social group” is defined as “a group

 9   of persons who share a common characteristic other than their

10   risk of being persecuted, or who are perceived as a group by

11   society.”        Matter of C-A-, 23 I&N Dec. 951, 956 (BIA 2006)

12   (internal quotation marks omitted).               The group must have a

13   degree of “social visibility” and be sufficiently defined, or

14   “particular.”       Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74-

15   76 (BIA 2007).           In Ucelo-Gomez v. Mukasey, we endorsed the

16   BIA’s determination that the group “wealthy Guatemalans” is

17   not cognizable as a particular social group because wealth is

18   a relative and subjective term that makes it difficult to

19   define.     509 F.3d 70, 73-74 (2d Cir. 2007) (per curiam).

20   Although Lopez-Mendoza attempts to narrow her group to those

21   perceived as wealthy because they are returning from the

22   United States, the basis of the group is still premised on

23   wealth,     or     the    perception       of   wealth,   rather   than   a

                                            3
 1   particularized social status.1              “[H]arm motivated purely by

 2   wealth is not persecution” and “[o]ur own precedent validates

 3   the idea that class status does not establish a social group

 4   with sufficient particularity.”              Id. at 74; see also Matul-

 5   Hernandez    v.   Holder,     685   F.3d     707,     713   (8th   Cir.    2012)

 6   (upholding     the   conclusion       of     the     BIA    that   “the    group

 7   ‘Guatemalans      returning    from        the     United   States   who     are

 8   perceived as wealthy’ is not a particular social group within

 9   the meaning of the INA”).           Therefore, because Lopez-Mendoza

10   has not established a fear of future persecution on account of

11   her membership within a particular social group, we find no

12   error in the agency’s denial of withholding of removal.                      See

13   8 C.F.R. § 1208.16(b).

14       We decline to consider Lopez-Mendoza’s unexhausted claim

15   that the IJ erred by denying a continuance.                  See Lin Zhong v.

16   U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).


            1
              We find instructive the First Circuit’s analysis of
       this distinction:
                 Conceivably, a class of persons identified
            partly based on comparative wealth could be the
            subject of persecution on the basis of that
            status. . . .    But being part of a landowning
            class is quite different than happening to be
            wealthy or perceived to be wealthy because of
            . . . ‘returning to Guatemala after a lengthy
            residence in the United States.’”
     Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011).
                                           4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O’Hagan Wolfe, Clerk
5
6
7




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