20-1447 Lopez-Lopez v. Garland BIA Brennan, IJ A208 293 749

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 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 9th day of November, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 STEVEN J. MENASHI, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 GLORIA LOPEZ-LOPEZ, 14 Petitioner, 15 16 v. 20-1447 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Reuben S. Kerben, Kew Gardens, 24 NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Margaret Perry, 28 Senior Litigation Counsel; Craig 29 W. Kuhn, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.

4 UPON DUE CONSIDERATION of this petition for review of a

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

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

7 is DENIED.

8 Petitioner Gloria Lopez-Lopez, a native and citizen of

9 El Salvador, seeks review of an April 2, 2020 decision of the

10 BIA affirming a July 17, 2018 decision of an Immigration Judge

11 (“IJ”) that denied her application for asylum, withholding of

12 removal, and relief under the Convention Against Torture

13 (“CAT”). In re Gloria Lopez-Lopez, No. A 208 293 749 (B.I.A.

14 Apr. 2, 2020), aff’g No. A 208 293 749 (Immig. Ct. N.Y. City

15 July 17, 2018). We assume the parties’ familiarity with the

16 underlying facts and procedural history.

17 We have reviewed the IJ’s decision as modified by the

18 BIA and consider only the grounds for the IJ’s decision that

19 the BIA relied on. We therefore do not address the IJ’s

20 adverse credibility determination. 1 See Xue Hong Yang v.

1 The BIA stated that it “affirm[ed] the [IJ’s] decision for the reasons set forth by the [IJ],” but it did not explicitly address credibility. Although it is unclear if the BIA intended to rely on the adverse credibility determination, the other grounds it specifically discussed were sufficient

2 1 U.S. Dep’t of Just.,

(2d Cir. 2005). The

2 applicable standards of review are well established. See

3 Paloka v. Holder,

(2d Cir. 2014) (reviewing

4 factual findings for substantial evidence and questions of

5 law and application of law to fact de novo).

6 The Government argues that we should dismiss the petition

7 because Lopez-Lopez’s brief does not satisfy the requirements

8 of Federal Rule of Appellate Procedure 28(a). We agree that

9 Lopez-Lopez’s counsel did not fully comply with the rule, but

10 the brief otherwise raises identifiable arguments for review,

11 and we therefore decline to dismiss on that basis. See Sioson

12 v. Knights of Columbus,

, 459–60 (2d Cir. 2002)

13 (noting that the absence of a statement of facts may be

14 “overlooked” in favor of ruling on the merits); see also New

15 York v. Green,

(2d Cir. 2005) (“[W]e have

16 expressed a strong preference for resolving disputes on the

17 merits.”) (quotation marks omitted).

18 An asylum applicant has the burden of establishing either

19 past persecution or a well-founded fear of persecution and

bases for the agency’s decision. Accordingly, we decline to rely on the credibility ruling. See INS v. Bagamasbad,

(1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 3 1 that “race, religion, nationality, membership in a particular

2 social group, or political opinion was or will be at least

3 one central reason for” the claimed persecution. 8 U.S.C.

4 § 1158(b)(1)(B)(i) (asylum); see also

(b).

5 A past persecution claim can be based on harm other than

6 “threats to life or freedom . . . including non-life-

7 threatening violence and physical abuse.” Ivanishvili v.

8 U.S. Dep’t of Just.,

(2d Cir. 2006)

9 (quotation marks, brackets, and citation omitted); see also

10 Beskovic v. Gonzales,

, 226 n.3 (2d Cir. 2006).

11 However, the harm must be sufficiently severe, rising above

12 “mere harassment.” Ivanishvili,

.

13 With these principles in mind, we conclude that

14 substantial evidence supports the agency’s determination that

15 Lopez-Lopez did not demonstrate past persecution or a well-

16 founded fear of future persecution on account of a protected

17 ground.

(b)(1)(B)(i);

(b).

18 Lopez-Lopez testified that she witnessed a gang killing

19 outside of her home and then received threats from gang

20 members, first in 2012 and then again after returning to El

21 Salvador in 2015. She contends that these threats

22 constituted persecution based on her membership in a

23 particular social group. To constitute a particular social 4 1 group, a group must be “(1) composed of members who share a

2 common immutable characteristic, (2) defined with

3 particularity, and (3) socially distinct within the society

4 in question.” Paloka,

(quoting Matter of M-

5 E-V-G-,

(B.I.A. 2014)). “To be

6 socially distinct, a group . . . must be perceived as a group

7 by society.”

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

8 Dec. at 240).

9 The agency did not err in rejecting Lopez-Lopez’s

10 proposed particular social group of “young people who resist

11 becoming members of Mara” as lacking in particularity and

12 social distinction. See Gomez v. INS,

(2d

13 Cir. 1991) (“Possession of broadly-based characteristics such

14 as youth and gender will not by itself endow individuals with

15 membership in a particular group.”); Matter of S-E-G-, 24 I.

16 & N. Dec. 579, 584-87 (B.I.A. 2008) (proposed groups of

17 “Salvadoran youths who have resisted gang recruitment” are

18 neither particular nor distinct). Lopez-Lopez did not

19 establish shared traits that would identify members of her

20 group to Salvadoran society or produce evidence suggesting

21 that Salvadoran society regards youth resisting gang

22 membership as a distinct social group. See Paloka,

(“Persecutory conduct aimed at a social group cannot 5 1 alone define the group, which must exist independently of the

2 persecution.”) (quotation marks omitted).

3 Nor is there evidence that the gang targeted Lopez-Lopez

4 based on either her membership in the group or a political

5 opinion of hers, as opposed to its general criminal motives.

6 See Ucelo-Gomez v. Mukasey,

(2d Cir. 2007)

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

8 attributable to the incentives presented to ordinary

9 criminals rather than to persecution, the scales are tipped

10 away from considering those people a ‘particular social

11 group’ within the meaning of the INA.”); see also Hernandez-

12 Chacon v. Barr,

, 101–02 (2d Cir. 2020) (upholding

13 BIA’s denial of social group claim because evidence did not

14 show that Salvadoran society perceived women who rejected

15 advances of gang members as being at greater risk than anyone

16 else who did not “comply with a gang member’s demands”).

17 For the same reasons, we conclude that Lopez-Lopez has

18 failed to establish her entitlement to withholding of

19 removal, which involves a higher burden of proof than does

20 entitlement to asylum. See Ramsameachire v. Ashcroft, 357

(2004) (recognizing that because the withholding

22 of removal analysis involves a higher burden of proof, an

23 alien who fails to establish entitlement to asylum 6 1 necessarily fails to establish entitlement to withholding of

2 removal).

3 We do not reach Lopez-Lopez’s CAT claim because she does

4 not advance any arguments in support of it in her brief. See

5 Yueqing Zhang v. Gonzales,

, 541 n.1 (2d Cir.

6 2005) (deeming CAT claim abandoned where petitioner failed to

7 address it in the opening brief).

8 For the foregoing reasons, the petition for review is

9 DENIED. All pending motions and applications are DENIED and

10 stays VACATED.

11 12 FOR THE COURT: 13 Catherine O=Hagan Wolfe, Clerk of Court 14

7