16-2281 Rivas Rivas v. Sessions BIA Straus, IJ A205 497 469 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 14th day of March, two thousand eighteen. 5 6 PRESENT: 7 REENA RAGGI, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 ALCIDES VLADIMIR RIVAS RIVAS, 14 Petitioner, 15 16 v. 16-2281 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jon E. Jessen, Stamford, CT. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General, Jennifer P. 27 Levings, Senior Litigation 28 Counsel, Kristin Moresi, Trial 29 Attorney, 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

4 is DENIED.

5 Petitioner Alcides Vladimir Rivas Rivas, a native and

6 citizen of El Salvador, seeks review of a June 3, 2016,

7 decision of the BIA affirming a December 2, 2014, decision of

8 an Immigration Judge (“IJ”) denying Rivas Rivas’s application

9 for asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Alcides Bladimir

11 Rivas Rivas,1 No. A205 497 469 (B.I.A. June 3, 2016), aff’g

12 No. A205 497 469 (Immig. Ct. Hartford Dec. 2, 2014). We

13 assume the parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we review both the

16 IJ’s and the BIA’s opinions “for the sake of completeness.”

17 Wangchuck v. DHS,

(2d Cir. 2006). The

18 standards of review are well established. See 8 U.S.C.

19 § 1252(b)(4)(B); Gjolaj v. Bureau of Citizenship &

1 The record uses both Vladimir and Bladimir. 2 1 Immigration Servs.,

(2d Cir. 2006).

2 To establish eligibility for withholding of removal

3 based on membership in a particular social group, an

4 “applicant must establish both that the group itself was

5 cognizable, . . . and that the alleged persecutors targeted

6 the applicant on account of h[is] membership in that

7 group.” Paloka v. Holder,

(2d Cir. 2014)

8 (internal quotation marks and citation omitted). To be

9 cognizable, a social group must be “(1) composed of members

10 who share a common immutable characteristic, (2) defined

11 with particularity, and (3) socially distinct within the

12 society in question.” Matter of M-E-V-G-,

227, 237 (B.I.A. 2014); see also Matter of W-G-R-, 26 I. &

14 N. Dec. 208, 212-18 (B.I.A. 2014). “‘Particularity’ refers

15 to whether the group is ‘sufficiently distinct’ that it

16 would constitute ‘a discrete class of persons.’” Matter of

17 W-G-R-, 26 I. & N. at 210 (quoting Matter of S-E-G-, 24 I.

18 & N. Dec. 579, 584 (B.I.A. 2008)). Social distinction

19 requires that the shared traits that characterize the

20 social group be sufficient for the group to “be perceived

21 as a group by society.” Id. at 216; see also Matter of M- 3 1 E-V-G-, 26 I. & N. Dec. at 240; Paloka,

2 (“[W]hat matters is whether society as a whole views the

3 group as socially distinct, not the persecutor’s

4 perception.”). Once the applicant has established a

5 cognizable social group, he must demonstrate a nexus

6 between his membership in that group and the persecution he

7 suffered. Paloka,

. The agency did not

8 err in denying relief because, as discussed below, Rivas

9 Rivas failed to demonstrate membership in a cognizable

10 particular social group or that he was persecuted on

11 account of his membership in such a group.

12 Rivas Rivas’s proposed social group, “young male[s]

13 opposing gang membership in El Salvador . . . who are unable

14 to leave MS13,” lacks both particularity and social

15 distinction. Pet. Br. at 17. The proposed social group is

16 overly diffuse, amorphous, and subjective. See Matter of W-

17 G-R-, 26 I. & N. Dec. at 221 (concluding that individuals who

18 had renounced gang membership was too diffuse, broad, and

19 subjective); Matter of S-E-G-,

, 585

20 (B.I.A. 2008) (concluding that young men who resisted gang

21 recruitment was amorphous and included “a potentially large 4 1 and diffuse segment of society”). Because Rivas Rivas failed

2 to “provide a clear benchmark for determining who falls within

3 the group,” the agency did not err in holding his proposed

4 group not legally cognizable. Matter of M-E-V-G, 26 I. & N.

5 Dec. at 239. Rivas Rivas’s proposed group also lacks social

6 distinction. He presented no evidence that Salvadoran

7 society regards “young male[s] opposing gang membership” as

8 a distinct social group, or that the proposed group is treated

9 differently in any way by society. See Matter of W-G-R-, 27

10 I. & N. Dec. at 222 (denying relief where “[t]he record

11 contains scant evidence that Salvadoran society considers

12 former gang members who have renounced their gang membership

13 as a distinct social group”).

14 The agency’s decision that Rivas Rivas failed to

15 establish a nexus between his claimed persecution and his

16 purported membership in a particular social group is

17 supported by substantial evidence. Rivas Rivas presented no

18 evidence that Salvadoran gangs were more likely to persecute

19 members of his proposed social group more than members of any

20 other groups in Salvadoran society. Instead, his evidence

21 indicated that gang violence in El Salvador is widespread and 5 1 arises from, among other issues, territorial clashes between

2 different gangs or between gang factions and security forces.

3 Matter of M-E-V-G-, 26 I. & N. Dec. at 250 (noting that

4 “evidence of indiscriminate gang violence and civil strife”

5 may undermine an applicant’s “attempt to establish a nexus

6 between any past or feared harm and a protected ground”)

7 (citing Matter of S-E-G-,

(B.I.A.

8 2008)).

9 Rivas Rivas also argues that he was persecuted for his

10 imputed political opinion of “wanting to leave the MS13,” and

11 that his family constitutes a cognizable social group being

12 targeted because of his attempt to withdraw from the gang.

13 Pet. Br. at 23. Rivas Rivas did not raise these arguments

14 before the BIA, and we generally do not consider unexhausted

15 issues on appeal. Lin Zhong v. U.S. Dep’t of Justice, 480

, 107 n.1 (2d Cir. 2007). In any event, Rivas Rivas

17 has presented no evidence that the gang members imputed a

18 political opinion to him or that this political opinion claim

19 is in any way distinguishable from his social group claim.

20 Matter of W-G-R-, 26 I. & N. Dec. at 223-24 (discussing nexus

21 requirement). 6 1 As for his argument regarding his family group, Rivas

2 Rivas appears to argue both that his family stands alone as

3 a cognizable particular social group and that it falls under

4 the umbrella of “young men persecuted and subsequently killed

5 [by] the MS13.” Pet. Br. at 25. But Rivas Rivas failed to

6 present evidence that gang members target the families of

7 young men who oppose or renounce gang membership over other

8 segments of Salvadoran society. See Matter of M-E-V-G-, 26

9 I. & N. Dec. at 250-51. And the BIA has rejected social

10 groups based on “family members of Salvadoran youth . . . who

11 have rejected or resisted membership in the gang” as “too

12 amorphous.” Matter of S-E-G-,

13 (internal quotation marks omitted). Finally, Rivas Rivas

14 seeks to delineate his umbrella group by the injury inflicted

15 on it by the gang, but cognizable social groups cannot be

16 defined solely by the harm its members have suffered. Ucelo-

17 Gomez v. Mukasey,

(2d Cir. 2007) (“[A] social

18 group cannot be defined exclusively by the fact that its

19 members have been subjected to harm.” (internal quotation

20 marks and citation omitted)).

21 7 1 The agency also reasonably determined that Rivas Rivas

2 did not show that he would more likely than not be tortured

3 by or with the acquiescence of a government official in El

4 Salvador. To succeed on a claim for CAT relief, a petitioner

5 must show that “government officials know of or remain

6 willfully blind to an act” of torture. Khouzam v. Ashcroft,

7

(2d Cir. 2004). Rivas Rivas argues that

8 he met this burden with his evidence that the government in

9 El Salvador is corrupt. Though the State Department report

10 he submitted reflects corruption in the judicial system, it

11 also describes the government’s efforts to combat such

12 corruption, including dismissing and suspending multiple

13 judges. Moreover, the agency reasonably determined that

14 torture was not “more likely than not” because Rivas Rivas

15 testified that he was able to avoid the gang from the time he

16 was attacked in 2001 to when he left El Salvador in 2006.

17 Khouzam,

(setting out standard for CAT

18 relief). As such, the agency’s determination that Rivas

19 Rivas failed to demonstrate torture by or with the willful

20 blindness of government officials is supported by substantial

21 evidence. 8 1 For the foregoing reasons, the petition for review is

2 DENIED.

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

9