20-2976 Arriola-Perez v. Garland BIA Fowler, IJ A209 240 418 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.

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 22nd day of November, two thousand twenty- two.

PRESENT: GERARD E. LYNCH, RAYMOND J. LOHIER, JR., STEVEN J. MENASHI, Circuit Judges. _____________________________________

JAIME DE JESUS ARRIOLA-PEREZ, Petitioner,

v. 20-2976 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Stephen K. Tills, Esq., Orchard Park, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Stefanie A. Svoren-Jay, Trial 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 DENIED.

Petitioner Jaime De Jesus Arriola-Perez, a native and

citizen of Guatemala, seeks review of an August 7, 2020,

decision of the BIA affirming an August 14, 2019, decision of

an Immigration Judge (“IJ”) denying his application for

asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). In re Jaime De Jesus

Arriola-Perez, No. A209 240 418 (B.I.A. Aug. 7, 2020), aff’g

No. A209 240 418 (Immig. Ct. Buffalo Aug. 14, 2019). We

assume the parties’ familiarity with the underlying facts and

procedural history.

We have reviewed the IJ’s decision as supplemented and

modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of

Justice,

(2d Cir. 2005); Yan Chen v.

Gonzales,

(2d Cir. 2005). The applicable

standards of review are well established. “[T]he 2 administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.”

(b)(4)(B). “Accordingly, we review

the agency’s decision for substantial evidence and must defer

to the factfinder’s findings based on such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion. . . . By contrast, we review legal conclusions de

novo.” Singh v. Garland,

(2d Cir. 2021)

(internal quotation marks omitted).

As an initial matter, the agency did not err in rejecting

Arriola-Perez’s argument that his Notice to Appear (“NTA”)

was insufficient to vest jurisdiction with the IJ because it

did not include the date and time of his initial hearing.

Arriola-Perez received a subsequent hearing notice providing

the missing information and appeared in immigration court.

See Banegas Gomez v. Barr,

(2d Cir. 2019)

(“[A]n NTA that omits information regarding the time and date

of the initial removal hearing is nevertheless adequate to

vest jurisdiction in the Immigration Court, at least so long

as a notice of hearing specifying this information is later

sent to the alien.”); see also Chery v. Garland,

3 980, 987 (2d Cir. 2021) (clarifying that “Banegas Gomez

remains good law” following Niz-Chavez v. Garland,

(2021)).

Arriola-Perez has not otherwise adequately raised any

issues for review. He does not address his CAT claim, and

his one sentence argument regarding the agency’s grounds for

denying asylum and withholding of removal is not adequate to

present the issue for judicial review. See Yueqing Zhang v.

Gonzales,

, 541 n.1, 545 n.7 (2d Cir. 2005)

(deeming a claim abandoned when the petitioner “devote[d]

only a single conclusory sentence to the argument”).

Even if he had adequately argued his particular social

group claim, the agency did not err in concluding that his

proposed group was not cognizable. To obtain asylum or

withholding of removal, an applicant must establish a nexus

to a protected ground, here a “particular social group.”

(b)(1)(B)(i), 1231(b)(3)(A). A particular

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.” Paloka v. Holder,

(2d Cir.

4 2014) (quoting Matter of M-E-V-G-,

(B.I.A. 2014)); see also Ucelo-Gomez v. Mukasey,

,

72–74 (2d Cir. 2007). To be particular, a group “must be

defined by characteristics that provide a clear benchmark for

determining who falls within the group” and “must . . . be

discrete and have definable boundaries—it must not be

amorphous, overbroad, diffuse, or subjective.” Paloka,

(quoting M-E-V-G-,

). “To

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

group by society.”

(quoting M-E-V-G-,

).

Arriola-Perez’s group, “young males in Guatemala who are

being threatened to join the gangs due to their vulnerability

as young men in Guatemala,” fails because it is “defined

exclusively by the claimed persecution,” namely the

recruitment by gangs. Matter of M-E-V-G-,

. “Persecutory conduct aimed at a social group cannot

alone define the group, which must exist independently of the

persecution.” Paloka,

(quoting Matter of W-

G-R-,

(B.I.A. 2014)). The group is

also not sufficiently particular because the parameters do

5 not “provide a clear benchmark for determining who falls

within the group,” as young males could encompass large swaths

of the population and vulnerability can be subjective.

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 239). And

the fact that the gang targeted him is not alone evidence of

social distinction because the relevant inquiry is society’s

perception, not the persecutor’s perception. Id.

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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