         10-1500-ag
         Paucar-Sarmiento v. Holder
                                                                                       BIA
                                                                                Van Wyke, IJ
                                                                               A099 515 498
                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 31st day of May, two thousand twelve.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                SUSAN L. CARNEY,
 9                    Circuit Judges.*
10       _______________________________________
11
12       MANUEL PAUCAR-SARMIENTO,
13                Petitioner,
14
15                           v.                                 10-1500-ag
16                                                              NAC
17       ERIC H. HOLDER, JR., UNITED STATES
18       ATTORNEY GENERAL, UNITED STATES
19       DEPARTMENT OF JUSTICE, EXECUTIVE
20       OFFICE FOR IMMIGRATION REVIEW,
21                Respondents.
22       _______________________________________
23

                      *
                    The Honorable Roger J. Miner, originally a member of
             the panel, died on February 18, 2012. The two remaining
             members of the panel, who are in agreement, have determined
             the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United
             States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1   FOR PETITIONER:           Manuel Paucar-Sarmiento, pro se,
 2                             Corona, New York.
 3
 4   FOR RESPONDENTS:          Tony West, Assistant Attorney
 5                             General; Leslie McKay, Assistant
 6                             Director; Kelly J. Walls; Ilissa M.
 7                             Gould, Trial Attorneys, Office of
 8                             Immigration Litigation, United
 9                             States Department of Justice,
10                             Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   review is DENIED.

16       Manuel Paucar-Sarmiento, a native and citizen of

17   Ecuador, seeks review of a March 24, 2010 decision of the

18   BIA affirming the June 12, 2008 decision of an immigration

19   judge (“IJ”) denying his application for asylum, withholding

20   of removal, and relief under the Convention Against Torture

21   (“CAT”).    In re Manuel Paucar-Sarmiento, No. A099 515 498

22   (B.I.A. Mar. 24, 2010), aff’g No. A099 515 498 (Immig. Ct.

23   N.Y.C. June 12, 2008).     We assume the parties’ familiarity

24   with the underlying facts and procedural history of this

25   case, which we reference only as necessary to explain our

26   decision.

27       We have reviewed both the BIA’s and IJ’s opinions, for

28   completeness.     See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

                                     2
 1   Cir. 2008).    The applicable standards of review are well

 2   established.    8 U.S.C. § 1252(b)(4)(B); See Aliyev v.

 3   Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).

 4       For applications like this one, which are governed by

 5   the REAL ID Act, the applicant must establish persecution

 6   based on “race, religion, nationality, membership in a

 7   particular social group, or political opinion” to

 8   demonstrate eligibility for asylum and withholding of

 9   removal.   8 U.S.C. §§ 1158(b)(1)(B)(i) 1231(b)(3)(A); see

10   also Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010);

11   Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208 (BIA 2007).      As

12   the agency determined, Paucar-Sarmiento’s showing fell short

13   because he failed to establish the required nexus between

14   the harm suffered and feared and one of the protected

15   grounds.

16       To demonstrate that an applicant’s political opinion

17   was or will be “at least one central reason” for his

18   persecution (past or prospective), 8 U.S.C.

19   § 1158(b)(1)(B)(i), the applicant must show that the

20   persecutor was motivated by his or her perception of the

21   applicant’s opinion, rather than merely by his or her own

22   opinion.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545


                                    3
 1   (2d Cir. 2005).    In this case, Paucar-Sarmiento failed to

 2   demonstrate that gang members harmed him or would harm him

 3   because of his political opinion.    He testified that they

 4   attacked him for refusing recruitment when they were

 5   attempting to increase their group’s size and not because of

 6   any beliefs Paucar-Sarmiento held.     See INS v.

 7   Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that the

 8   “existence of a generalized political motive underlying . .

 9   . forced recruitment is inadequate to establish (and,

10   indeed, goes far to refute) the proposition that

11   [petitioner] fears persecution on account of political

12   opinion” (internal quotation marks omitted)).

13       Paucar-Sarmiento also failed to demonstrate his

14   membership in a “particular social group.”    A “particular

15   social group” must: (1) “share a common, immutable

16   characteristic” that has a level of “social visibility”

17   sufficient to identify members to others in the community,

18   particularly to potential persecutors; and (2) be defined

19   with sufficient particularity.     Matter of A-M-E & J-G-U-, 24

20   I. & N. Dec. 69, 73-76 (BIA 2007); see also Ucelo-Gomez v.

21   Mukasey, 509 F.3d 70, 72-74 (2d Cir. 2007)(holding BIA

22   precedential opinion employing these facts to the reasonable

23   interpretation.)    Applying this framework in Matter of S-E-

                                    4
 1   G-, 24 I. & N. Dec. 579 (BIA 2008), the BIA considered the

 2   cases of applicants from El Salvador who, like Paucar-

 3   Sarmiento with regard to Ecuador, claimed eligibility for

 4   asylum and withholding of removal based on their status as a

 5   member of a set of young men who resisted recruitment by

 6   gangs.   The BIA concluded that the proposed group did not

 7   satisfy the “particularity” and “social visibility” tests

 8   set forth in Matter of A-M-E- & J-G-U, in part because

 9   “victims of gang violence come from all segments of society,

10   and it is difficult to conclude that any ‘group,’ as

11   actually perceived by the criminal gangs, is much narrower

12   than the general population.”       Matter of S-E-G-, 24 I. & N.

13   Dec. at 582-88; see also Matter of E-A-G-, 24 I. & N. Dec.

14   591, 594 (BIA 2008).

15       Precedential BIA decisions such as Matter of S-E-G- are

16   eligible for Chevron deference insofar as they represent the

17   BIA’s authoritative interpretations of the statutes Congress

18   has empowered it to enforce.    Ucelo-Gomez, 509 F.3d at 72;

19   see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

20   Inc., 467 U.S. 837, 842-45 (1984).      Here, we defer to the

21   agency’s interpretation of the statute as announced in

22   Matter of S-E-G-.   Because that decision rejects as a

23   “particular social group” one that is for purposes of our
                                     5
 1   review indistinguishable from the group proposed here, we

 2   conclude that Paucar-Sarmiento’s social group claim fails.

 3       Finally, even liberally construing Paucar-Sarmiento’s

 4   pro se brief as raising a challenge to the agency’s denial

 5   of CAT relief, see Triestman v. Fed. Bureau of Prisons, 470

 6   F.3d 471, 474 (2d Cir. 2006), we conclude that the agency

 7   did not err in finding that Paucar-Sarmiento failed to

 8   demonstrate a likelihood of torture by or with the

 9   acquiescence of the Ecuadorean government.   The record

10   evidence of country conditions does not support a finding

11   that the Ecuadorean government acquiesces in the actions of

12   criminal gangs, and Paucar-Sarmiento himself testified that

13   Ecuadorean police had provided him some assistance in the

14   past.   See 8 C.F.R. § 1208.18(a)(1) (requiring torture

15   cognizable under CAT to be “inflicted by or at the

16   instigation of or with the consent or acquiescence of a

17   public official or other person acting in an official

18   capacity”); see also Khouzam v. Ashcroft, 361 F.3d 161, 170-

19   71 (2d Cir. 2004) (holding that cognizable acquiescence

20   “requires only that government officials know of or remain

21   willfully blind to an act and thereafter breach their legal

22   responsibility to prevent it”).

23
                                   6
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

5    this petition is DISMISSED as moot.    Any pending request for

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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