Vivar Lliguin v. Rosen

V
     18-3449
     Vivar Lliguin v. Rosen                                                    BIA
                                                                         Laforest, IJ
                                                                       A206 445 168
                              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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 13th day of January, two thousand twenty-one.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            WILLIAM J. NARDINI,
10                 Circuit Judges.
11   _____________________________________
12
13   MARIA OLGA VIVAR LLIGUIN,
14            Petitioner,
15
16                      v.                                   18-3449
17                                                           NAC
18   JEFFREY A. ROSEN, ACTING UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Michael Anthony Borja, Esq.,
24                                       Borja Law Firm P.C., Jackson
25                                       Heights, NY.
26
27   FOR RESPONDENT:                     Jeffrey Bossert Clark, Acting
28                                       Assistant Attorney General; Keith
29                                       I. McManus , Assistant Director;
 1                                     Nelle M. Seymour, Trial Attorney,
 2                                     Office of Immigration Litigation,
 3                                     United States Department of
 4                                     Justice, Washington, DC.

 5          UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9          Petitioner Maria Olga Vivar Lliguin, a native and citizen

10   of Ecuador, seeks review of an October 31, 2018, decision of

11   the    BIA   affirming   an   October    27,    2017,    decision   of   an

12   Immigration     Judge    (“IJ”)    denying     asylum,   withholding     of

13   removal, and relief under the Convention Against Torture

14   (“CAT”). 1   In re Maria Olga Vivar Lliguin, No. A 206 445 168

15   (B.I.A. Oct. 31, 2018), aff’g No. A 206 445 168 (Immig. Ct.

16   N.Y. City Oct. 27, 2017).         We assume the parties’ familiarity

17   with the underlying facts and procedural history in this case.

18          We have reviewed the decision of the IJ as supplemented

19   by the BIA.     See Yan Chen v. Gonzales, 

417 F.3d 268

, 271 (2d

20   Cir. 2005).      The applicable standards of review are well

21   established.     See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder,

22   

762 F.3d 191

, 195 (2d Cir. 2014) (reviewing factual findings


     1   Vivar Lliguin does not challenge the denial of her CAT claim.
                                          2
 1   for substantial evidence and questions of law, including

 2   whether a proposed particular social group is cognizable, de

 3   novo); Gjolaj v. Bureau of Citizenship & Immigration Servs.,

 4   

468 F.3d 140

,    143      (2d    Cir.   2006)    (reviewing     nexus

 5   determination for substantial evidence).              We find no error

 6   in the agency’s decision.

 7         An applicant for asylum and withholding of removal must

 8   establish past persecution or a well-founded fear of future

 9   persecution and that “race, religion, nationality, membership

10   in a particular social group, or political opinion was or

11   will be at least one central reason for persecuting the

12   applicant.”       8   U.S.C.    §    1158(b)(1)(B)(i);    see   also

id. 13

  § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(1), (2).            A cognizable

14   particular social group is one that has a “a common immutable

15   characteristic,” is “defined with particularity,” and is

16   “socially distinct within the society in question.”                Paloka,

17 762 F.3d at 196

(quoting Matter of M–E–V–G–, 26 I. & N. Dec.

18   227, 237 (B.I.A. 2014)).             An “immutable characteristic” is

19   one that members of the group cannot change or “should not be

20   required     to   change    because     it   is   fundamental   to   their

21   individual identities or consciences.”             Matter of Acosta, 19


                                            3
 1   I. & N. Dec. 211, 233 (B.I.A. 1985) (citing as examples sex,

 2   color, kinship ties, or shared past experiences, such as

 3   former       military   leadership       or     land    ownership).         A

 4   persecutor’s perspective and the persecution itself may be

 5   indicators of a group, but “in determining particularity and

 6   social distinction what matters is whether society as a whole

 7   views a group as socially distinct, not the persecutor’s

 8   perception.”      

Paloka, 762 F.3d at 196

.          The social group must

 9   have well-defined boundaries, and “must not be amorphous,

10   overbroad, diffuse, or subjective.”

Id. 11

        Before the IJ, Vivar Lliguin defined her proposed social

12   group as “individuals that are resisting gang membership or

13   who    are    protecting   individuals        who     are   resisting    gang

14   membership.”      The agency did not err in determining that this

15   group was not cognizable.      See Melgar de Torres v. Reno, 191

16 F.3d 307

, 314 (2d Cir. 1999) (“[A] well-founded fear of

17   persecution must be on account of an enumerated ground set

18   forth in the Act, and general crime conditions are not a

19   stated ground.”); Matter of S-E-G-, 24 I. & N. Dec. 579, 586-

20   88    (B.I.A.   2008)   (concluding      that    Salvadoran     youths    who

21   resist gang recruitment are not a cognizable social group


                                          4
 1   because     they   do     not   share      recognizable      and   discrete

 2   attributes).       This    initial    proposed      group    covered   large

 3   swaths of the population, including any young person who

 4   resisted joining a gang and any family, member, friend, or

 5   member of the community who in any way tried to protect such

 6   individuals.       Accordingly, IJ did not err in finding the

 7   proposed group too amorphous.             Vivar Lliguin does not contest

 8   this conclusion on appeal.

 9       Vivar Lliguin instead argues that the narrower social

10   group     that   she    articulated        before   the     BIA—mothers   of

11   prospective gang members—is cognizable.                   The BIA was not

12   required to consider this narrower formulation because Vivar

13   Lliguin failed to raise it before the IJ.                 See Prabhudial v.

14   Holder, 

780 F.3d 553

, 555 (2d Cir. 2015).                   Moreover, Vivar

15   Lliguin’s argument is misplaced.             She relies on Matter of L-

16   E-A-, 27 I. & N. Dec. 40 (B.I.A. 2018) to argue that family

17   membership can be a sufficient basis for feared persecution,

18   without a nexus to an additional protected ground.                 However,

19   the Attorney General reversed Matter of L-E-A- in part,

20   emphasizing that “an alien’s family-based group will not

21   constitute a particular social group unless it has been shown


                                           5
 1   to be socially distinct in the eyes of its society, not just

 2   those of its alleged persecutor.”    Matter of L-E-A-, 27 I. &

 3   N. Dec. 581, 582 (B.I.A. 2019).     This holding is consistent

 4   with the rule that it is society’s perception, not only the

 5   perception of the persecutor, which determines whether a

 6   group is socially distinct.    

Paloka, 762 F.3d at 196

.   Vivar

 7   Lliguin did not present evidence that her family or mothers

 8   of prospective gang members are socially distinct in the eyes

 9   of Ecuadorian society.

10       For the foregoing reasons, the petition for review is

11   DENIED.   All pending motions and applications are DENIED and

12   stays VACATED.

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe,
15                                 Clerk of Court




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