     16-1012
     Varela-Lopez v. Sessions
                                                                                      BIA
                                                                                 Straus, IJ
                                                                             A078 283 601
                            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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   15th day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   AYLEEN FRANCELES VARELA-LOPEZ,
14            Petitioner,
15
16                     v.                                            16-1012
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Jon E. Jessen, Stamford, CT.
24
25   FOR RESPONDENT:                    Benjamin C. Mizer, Principal Deputy
26                                      Assistant Attorney General; Carl H.
27                                      McIntyre, Assistant Director;
28                                      Justin R. Markel, Senior Litigation
29                                      Counsel, 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 is

4    DENIED in part and GRANTED in part.

5        Petitioner Ayleen Franceles Varela-Lopez, a native and

6    citizen of Honduras, seeks review of a March 9, 2016, decision

7    of the BIA affirming a November 3, 2014, decision of an

8    Immigration Judge (“IJ”) denying withholding of removal and

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

10   Ayleen Franceles Varela-Lopez, No. A078 283 601 (B.I.A. Mar.

11   9, 2016), aff’g No. A078 283 601 (Immig. Ct. Hartford Nov. 3,

12   2014).   We assume the parties’ familiarity with the underlying

13   facts and procedural history in this case.

14       We have reviewed both the IJ’s and the BIA’s decisions

15   denying withholding of removal and CAT relief “for the sake of

16   completeness.”   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

17   524, 528 (2d Cir. 2006).   The applicable standards of review

18   are well established.   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

19   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).    The agency did

20   not err in finding that Varela-Lopez failed to satisfy her

21   burden of proof for withholding of removal, but it did err in

22   failing to adequately consider evidence material to her CAT

23   claim.
                                    2
1    Withholding of Removal

2        In order to demonstrate eligibility for withholding of

3    removal, an applicant must establish that her “life or freedom

4    would be threatened . . . because of [her] race, religion,

5    nationality, membership in a particular social group, or

6    political   opinion.”        8 U.S.C.          § 1231(b)(3)(A).        To

7    constitute a particular social group, a group must be: “(1)

8    composed    of    members   who        share     a   common     immutable

9    characteristic,    (2)   defined       with    particularity,    and   (3)

10   socially distinct within the society in question.”              Matter of

11   M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also

12   Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir. 2007).

13   “[A] ‘particular social group’ cannot be defined exclusively

14   by the claimed persecution, . . . it must be ‘recognizable’ as

15   a discrete group by others in the society, and . . . it must

16   have . . . definable boundaries.”             Matter of M-E-V-G-, 26 I.

17   & N. Dec. at 232.     “[I]t must not be amorphous, overbroad,

18   diffuse, or subjective.”     Id. at 239.         The agency did not err

19   in finding that Varela-Lopez failed to demonstrate membership

20   in a cognizable social group.

21       First, Varela-Lopez’s proposed social group of victims of

22   gang extortion failed because it was defined by the claimed

23   persecution alone.    See id. at 232.          Second, Varela-Lopez did
                                        3
1    not demonstrate that she was or would be targeted for extortion

2    on account of her familial ties or gender given her testimony

3    that her family members have only ever been targeted for

4    extortion and recruitment purposes, and that “everybody” in her

5    neighborhood had been extorted.      See Ucelo-Gomez, 509 F.3d at

6    73 (“When the harm visited upon members of a group is

7    attributable to the incentives presented to ordinary criminals

8    rather than to persecution, the scales are tipped away from

9    considering those people a ‘particular social group’. . . .”);

10   see also Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75

11   (B.I.A. 2007) (holding that the group of “wealthy Guatemalans”

12   failed the social distinction requirement because it would not

13   be recognized as a group at a greater risk of crime, extortion,

14   or robbery).    And, despite evidence of widespread violence

15   against women in Honduras, the evidence did not show that gangs

16   target women for extortion on account of their gender.

17        Because the record evidence does not indicate that either

18   female victims of extortion or members of Varela-Lopez’s family

19   are at greater risk of harm than other individuals in Honduras,

20   Varela-Lopez failed to establish that she was harmed or faces

21   harm on account of her membership in a cognizable social group

22   as   required   for   withholding   of   removal.   See   8 U.S.C.

23   § 1231(b)(3)(A); Ucelo-Gomez, 509 F.3d at 73; Matter of A-M-E
                                     4
1    & J-G-U-, 24 I. & N. Dec. at 74-75.            Accordingly, we deny the

2    petition for review to this extent.

3    Convention Against Torture

4        As an initial matter, contrary to the Government’s

5    contention, we treat Varela-Lopez’s challenge to the denial of

6    CAT relief as exhausted because the BIA considered and affirmed

7    the IJ’s denial of CAT relief thereby excusing any failure to

8    exhaust.    See Xian Tuan Ye Dep’t of Homeland Sec., 446 F.3d 289,

9    296-97 (2d Cir. 2006).       To receive withholding or deferral of

10   removal under the CAT, an applicant must “establish that it is

11   more likely than not that he or she would be tortured if removed

12   to the proposed country of removal.”           8 C.F.R. § 1208.16(c)(2).

13   Unlike withholding of removal, CAT relief does not require a

14   nexus to any ground.        See id.       “Torture is defined as any act

15   by which severe pain or suffering, whether physical or mental,

16   is intentionally inflicted on a person . . . by or . . . with

17   the consent or acquiescence of a public official or other person

18   acting in an official capacity.”              8 C.F.R. § 1208.18(a)(1);

19   Pierre v. Gonzales, 502 F.3d 109, 114, 118 (2d Cir. 2007);

20   Khouzam    v.   Ashcroft,    361   F.3d      161,   172   (2d   Cir.   2004)

21   (“[T]orture requires only that government officials know of or

22   remain willfully blind to an act and thereafter breach their

23   legal responsibility to prevent it.”).
                                           5
1        The agency provided insufficient analysis to support its

2    conclusion   that    Varela-Lopez       failed   to    demonstrate   a

3    likelihood   of   torture   or   that    Honduran     officials   would

4    acquiesce in her torture.    See Poradisova v. Gonzales, 420 F.3d

5    70, 77 (2d Cir. 2005) (explaining that “we require a certain

6    minimum level of analysis from the IJ and BIA opinions . . .

7    , and indeed must require such if judicial review is to be

8    meaningful”).     In assessing whether an applicant has satisfied

9    her burden of proof, the agency must consider all evidence

10   relevant to the possibility of future torture, including

11   evidence that the applicant has suffered torture in the past,

12   “[e]vidence that the applicant could relocate to a part of the

13   country of removal where . . . she is not likely to be tortured,

14   . . . evidence of gross, flagrant or mass violations of human

15   rights within the country of removal,” and other relevant

16   information on country conditions.        8 C.F.R. § 1208.16(c)(3).

17       The agency failed to discuss any of the record evidence

18   material to Varela-Lopez’s CAT claim.        That evidence included

19   the following: Varela-Lopez’s testimony that gang members

20   killed her father, uncle, and brother for failing to pay

21   extortion; the death certificates supporting that testimony;

22   her testimony that gang members assaulted her and her two living

23   brothers; threatening letters from gang members; country
                                       6
1    reports reflecting increased murder rates of women between 2005

2    and 2012 (a large number of which were likely related to gangs);

3    and reports that Honduran police are willfully blind to

4    violence against women.   Given the agency’s failure to explain

5    its CAT ruling or analyze any of this evidence, we grant the

6    petition to this extent and remand for further consideration

7    of the CAT claim.      See 8 C.F.R. § 1208.16(c); see also

8    Poradisova, 420 F.3d at 77.

9         For the foregoing reasons, the petition for review is

10   DENIED in part and GRANTED in part and REMANDED for further

11   proceedings consistent with this order.

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk




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