     15-1625
     Orellana-Rodriguez v. Sessions

                                           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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 15th day of Februay, two thousand seventeen.
 4
 5   PRESENT:
 6              PIERRE N. LEVAL,
 7              GUIDO CALABRESI,
 8              SUSAN L. CARNEY,
 9                          Circuit Judges,
10   _________________________________________
11
12   DARBIN OLIVERIO ORELLANA-RODRIGUEZ,
13
14                       Petitioner,
15
16                                    v.                                   No. 15-1625
17
18   JEFF SESSIONS, UNITED STATES ATTORNEY GENERAL,
19
20              Respondent.*
21   _________________________________________
22
23   FOR PETITIONER:                                        LAWRENCE G. SPIVAK, Jamaica, NY.
24
25   FOR RESPONDENT:                                        EVAN P. SCHULTZ (Benjamin C. Mizer,
26                                                          Stephen J. Flynn, on the brief), United States
27                                                          Department of Justice, Washington, DC.

     *
           Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff Sessions is
     automatically substituted for former Attorney General Loretta E. Lynch as Respondent.
 1
 2          Petition for review of a decision of the Board of Immigration Appeals.
 3
 4          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 5   ADJUDGED, AND DECREED that the petition for review of the April 17, 2015 Board
 6   of Immigration Appeals decision is GRANTED.

 7          Petitioner Darbin Oliverio Orellana-Rodriguez, a native and citizen of Guatemala,
 8   seeks review of an April 17, 2015 decision of the Board of Immigration Appeals (“BIA”),
 9   affirming an October 30, 2013 decision of an Immigration Judge (“IJ”) denying Orellana-
10   Rodriguez’s application for asylum, withholding of removal, and relief under the Convention
11   Against Torture (“CAT”). In re Darbin Oliverio Orellana-Rodriguez, No. A94-004-314 (B.I.A.
12   Apr. 17, 2015) (“BIA Op.”), aff’g No. A94-004-314 (Immig. Ct. N.Y. City Oct. 30, 2013). We
13   assume the parties’ familiarity with the underlying facts and procedural history in this case, to
14   which we refer only as necessary to explain our decision.

15          Under the circumstances of this case, we review the IJ’s decision as modified by the
16   BIA. See Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The “substantial
17   evidence” standard of review applies to the IJ’s factual findings, and we review questions of
18   law de novo. See 8 U.S.C. § 1252(b)(4); Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

19          To establish eligibility for asylum and withholding of removal based on membership
20   in a particular social group, see 8 U.S.C. § 1101(a)(42), the applicant must show both that the
21   group is legally cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per
22   curiam), and that the applicant has suffered past persecution or has demonstrated a well-
23   founded fear or likelihood of future persecution on account of his membership in that
24   group, see Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010). A particular social group is
25   cognizable if, among other things, it refers to “a discrete class of persons” and “the relevant
26   society perceives, considers, or recognizes the group as a distinct social group.” In re W-G-R-,
27   26 I. & N. Dec. 208, 210, 217 (B.I.A. 2014), vacated and remanded in part on other grounds by Reyes
28   v. Lynch, 842 F.3d 1125 (9th Cir. 2016); see Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014)
29   (according Chevron deference to the BIA’s construction of “particular social group”). This

                                                      2
 1   Court and the BIA have both recognized that kinship ties can form the basis of a cognizable
 2   particular social group. See, e.g., Vumi v. Gonzales, 502 F.3d 150, 154 (2d Cir. 2007); In re
 3   Acosta, 19 I. & N. Dec. 211, 233-34 (B.I.A. 1985), overruled in part on other grounds by In re
 4   Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987).

 5          The agency’s cursory explanation for its conclusion that Orellana-Rodriguez has not
 6   demonstrated a nexus between the harm he fears and a particular social group is insufficient
 7   to permit meaningful review and the case therefore requires remand. See Poradisova v.
 8   Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite our generally deferential review of IJ and
 9   BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions
10   denying asylum, and indeed must require such if judicial review is to be meaningful.”).

11            The IJ denied Orellana-Rodriguez’s claim of past persecution in part because (it
12   ruled) Orellana-Rodriguez never defined or articulated what social group provided the basis
13   for his claim of persecution. The BIA then summarily held that Orellana-Rodriguez’s claims
14   of violence in Guatemala “do not constitute past persecution ‘on account of’ a ground
15   enumerated in the Act,” citing cases holding that a particular social group had not been
16   established. BIA Op. at 2. Contrary to these comments, Orellana-Rodriguez did articulate the
17   putative particular social group that underlay his claims. For example, in Orellana-
18   Rodriguez’s written statement submitted to the IJ, he stated that it was the “combination of
19   [his] family’s relative success in business and past service in the military” that caused them to
20   be targeted by violent gangs. Admin. Rec. 425. When asked during the IJ hearing why he and
21   his family were targeted by the gangs, Orellana-Rodriguez explained that the attacks and
22   threats stemmed from his uncle’s anti-gang activity in the army. Id. at 93-94. And in his brief
23   to the BIA, Orellana-Rodriguez stated that he “did articulate his membership [in] a particular
24   social group . . . as someone who belonged to a family that is against Mara 18 and its
25   affiliated drug group/syndicate.” Id. at 7.

26          The agency failed to discuss and assess whether Orellana-Rodriguez’s specific claims
27   of membership in particular social groups met the applicable standards for a cognizable
28   group. Without such a discussion, its denial of asylum and withholding of removal does not

                                                       3
 1   allow for meaningful judicial review. At least with respect to his claim of persecution by
 2   reason of membership in a group consisting of families of police or military personnel which
 3   had moved against drug traffickers and gangs, we see little reason why a group so designated
 4   should not qualify. We therefore grant the petition and remand to the agency for
 5   consideration of the claim in the first instance. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d
 6   Cir. 2006).

 7          We also remand the matter to the agency for further consideration of Orellana-
 8   Rodriguez’s claim for relief under the CAT. The IJ and BIA denied CAT relief because they
 9   held that Orellana-Rodriguez had not pointed to government acquiescence in torture, noting
10   that Orellana-Rodriguez said that the police offered some help to his family in response to
11   the threats against them. Neither the IJ nor the BIA addressed, however, Orellana-
12   Rodriguez’s evidence that Guatemalan police and government officials are corrupt and
13   involved in gang activity or other violence. Where the BIA concluded that the assistance of
14   some government actors overrode the possibility that other actors could be complicit in
15   torture, we have previously remanded a claim for CAT relief to the agency for further
16   review, expressing “significant doubts about this view of what may constitute government
17   acquiescence.” De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir. 2010). Since the IJ and BIA
18   appear to have relied on the approach that we criticized in De La Rosa, we remand so that
19   the agency may fully consider Orellana-Rodriguez’s evidence with respect to the Guatemalan
20   government’s alleged complicity in torture.

21          For the foregoing reasons, we GRANT the petition for review, VACATE the BIA’s
22   order, and REMAND the case to the BIA for further proceedings consistent with this
23   decision.

24                                                       FOR THE COURT:
25                                                       Catherine O’Hagan Wolfe, Clerk of Court




                                                     4
