16-3093 Fernandez Cruz v. Whitaker BIA Loprest, IJ A201 242 181 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 January, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 CECILIO FERNANDEZ CRUZ, AKA 13 CECILIO FERNANDEZ, 14 Petitioner, 15 16 v. 16-3093 17 NAC 18 MATTHEW G. WHITAKER, ACTIN 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Zachary Sanders, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Principal Deputy 26 Assistant Attorney General; 27 Stephen J. Flynn, Assistant 28 Director; Arthur L. Rabin, 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 GRANTED.

5 Petitioner Cecilio Fernandez Cruz (“Cruz”), a native and

6 citizen of El Salvador, seeks review of an August 8, 2016

7 decision of the BIA affirming a December 14, 2015 decision of

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

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Cecilio Fernandez

11 Cruz, No. A 201 242 181 (B.I.A. Aug. 8, 2016), aff’g No. A 201

12 242 181 (Immig. Ct. N.Y. City Dec. 14, 2015). We assume the

13 parties’ familiarity with the underlying facts and procedural

14 history in this case.

15 Cruz argues that he stated a pattern or practice claim

16 for withholding of removal based on his membership in a

17 particular social group. Specifically, he argues that he

18 offered evidence showing that gangs target young men who

19 resist gang recruitment. The Government argues that Cruz

20 failed to exhaust a pattern or practice claim before the

21 agency. But we conclude that remand is warranted here

22 because whether Cruz is a member of a particular social group

23 and whether he showed a pattern or practice of persecution 2 1 require substantially the same analysis. By arguing the

2 former before the IJ and BIA, Cruz sufficiently raised a

3 pattern or practice claim and the BIA erred by failing to

4 address it on the merits.

5 Withholding of removal requires the applicant to show

6 that it is more likely than not that his “life or freedom

7 would be threatened . . . on account of race, religion,

8 nationality, membership in a particular social group, or

9 political opinion.”

(b); Ramsameachire v.

10 Ashcroft,

(2d Cir. 2004). To constitute a

11 particular social group, a group must be: “(1) composed of

12 members who share a common immutable characteristic,

13 (2) defined with particularity, and (3) socially distinct

14 within the society in question.” In re M-E-V-G-, 26 I. & N.

15 Dec. 227, 237 (BIA 2014). Although a “‘particular social

16 group’ cannot be defined exclusively by the claimed

17 persecution,”

26 I. & N. Dec. at 232, 239, we have

18 previously recognized instances where a social group can be

19 partially defined by shared persecution, see Paloka v.

20 Holder,

(2d Cir. 2014) (remanding for

21 further consideration of purported social group based on

22 youth, gender, and persecution). An applicant may show he

23 would more likely be persecuted by proving his membership in

3 1 a social group and “the existence of ‘a pattern or practice

2 of persecution of a group of persons similarly situated to

3 the applicant on account of . . . membership in [the]

4 particular social group[.’]” Kyaw Zwar Tun v. U.S. INS, 445

(2d Cir. 2006) (quoting 8 C.F.R.

6 § 208.16(b)(2)).

7 In this case, the analysies of the social group claim

8 and pattern or practice claim overlap. Cruz failed to invoke

9 the specific words “pattern or practice” in his briefs before

10 the IJ and BIA and raises the claim by name for the first

11 time in his brief to this Court. But Cruz argued before the

12 IJ that that he was a member of a particular social group of

13 young, poor, men targeted by gangs in El Salvador because of

14 their refusal to join them, and he argued before the BIA that

15 gangs targeted poor people who resisted gang recruitment. He

16 also submitted evidence, which he alleges shows the existence

17 and persecution of this group. By establishing this group

18 as a “particular social group” and the basis for his

19 withholding claim, Cruz would, in essence, establish a

20 pattern or practice of persecution of the members of that

21 group. See Kyaw Zwar Tun, 445 F.3d at 565.

22 Given the overlapping analyses, the BIA has failed to

23 address the dispositive issue: whether Cruz showed that he

4 1 would more likely than not be persecuted on account of his

2 group membership. Remand would not be futile because the BIA

3 did not address the pattern or practice claim and declined to

4 reach the IJ’s finding that “young, poor men who resist gang

5 recruitment” did not constitute a particular social group.

6 See Xiao Ji Chen v. U.S. Dep’t of Justice,

, 339

7 (2d Cir. 2006). Accordingly, we remand for the BIA to more

8 fully consider Cruz’s fear of future persecution on account

9 of his allegations that he will be persecuted on account of

10 his group membership.

11 For the foregoing reasons, the petition for review is

12 GRANTED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court 16

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