16-64 Seepersad v. Sessions BIA Videla, IJ A029 380 732

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of June, two thousand eighteen.

PRESENT: ROBERT D. SACK, PETER W. HALL, CHRISTOPHER F. DRONEY Circuit Judges. _____________________________________

ASHRAM SEEPERSAD, Petitioner,

v. 16-64

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: RION LATIMORE, Minneapolis, MN.

FOR RESPONDENT: BENJAMIN C. MIZER, Assistant Attorney General; Shelley R. Goad, Assistant Director; Tim Ramnitz, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

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

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

DISMISSED IN PART and DENIED IN PART.

Petitioner Ashram Seepersad, a native and citizen of

Trinidad and Tobago, seeks review of a December 9, 2015,

decision of the BIA, affirming a September 4, 2015, decision

of an Immigration Judge (“IJ”) denying Seepersad withholding

of removal, relief under the Convention Against Torture

(“CAT”), and a waiver of inadmissibility pursuant to

(h). In re Ashram Seepersad, No. A029 380 732 (B.I.A.

Dec. 9, 2015), aff’g No. A029 380 732 (Immig. Ct. N.Y. City Sept.

4, 2015). In a separate per curiam opinion issued today, we

deny Seepersad’s petition as it relates to the waiver of

inadmissibility. We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

We have reviewed the IJ’s decision as supplemented by the

BIA. See Yan Chen v. Gonzales,

(2d Cir. 2005).

Seepersad’s criminal conviction limits our jurisdiction to

constitutional claims and colorable questions of law,

(a)(2)(C), (D), for which our review is de novo, Pierre

v. Holder,

(2d Cir. 2009). Seepersad raises

2 no such claims with respect to the agency’s conclusion that he

failed to show “that it is [was] more likely than not that

he . . . would be tortured.”

(c)(2).

Accordingly, we dismiss the petition for review to the extent

that it challenges the denial of CAT relief. See Xiao Ji Chen

v. U.S. Dep’t of Justice,

(2d Cir. 2006).

Seepersad seeks withholding of removal based on his fear

of future persecution, citing a proposed social group:

returning immigrants perceived as wealthy. Whether a group is

legally cognizable presents a question of law. Paloka v.

Holder,

(2d Cir. 2014).

An applicant seeking withholding of removal must establish

that his fear of future persecution is “on account of race,

religion, nationality, membership in a particular social group,

or political opinion.”

(a)(42); see also

(b)(3). To be cognizable, a social group must be

“(1) composed of members who share a common immutable

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

socially distinct within the society in question.” Matter of

M-E-V-G-,

(B.I.A. 2014). The agency

applied the correct criteria in its analysis and did not err

in concluding that Seepersad did not establish that returning

3 immigrants perceived as wealthy have the particularity and

definable boundaries necessary to form a particular social

group. Seepersad testified to general violence and government

corruption in Trinidad, but could not name one individual or

group that would target him, testifying instead that his “fear

is more general.” Record at 65. As we have previously noted

with approval, “wealth” cannot form the basis of a social group

because it “is simply too subjective, inchoate, and variable

to provide the sole basis for membership in a particular social

group.” Ucelo-Gomez v. Mukasey,

(2d Cir. 2007)

(internal quotation marks omitted). Seepersad presented no

evidence to distinguish his situation from that addressed in

Ucelo-Gomez. That some returning immigrants have been

attacked does not make the group cognizable. See Matter of

M-E-V-G-,

; see also Ucelo–Gomez,

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

attributable to the incentives presented to ordinary criminals

rather than to persecution, the scales are tipped away from

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

For the foregoing reasons, the petition for review is

DISMISSED IN PART insofar as it challenges the denial of CAT

relief and DENIED IN PART insofar as it challenges the denial

4 of withholding of removal. Seepersad’s motion for a stay of

removal is DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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