23-6369 Amaya Mejia v. Bondi BIA Golovnin, IJ A216 565 682/683

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 4th day of November, two thousand twenty-five.

PRESENT: DENNY CHIN, STEVEN J. MENASHI, BETH ROBINSON, Circuit Judges. _____________________________________

BLANCA ESTELA AMAYA MEJIA, LUIS ALEXANDER AMAYA, Petitioners,

v. 23-6369 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. *

* The Clerk of the Court is directed to amend the official caption as set forth above. FOR PETITIONERS: Bruno J. Bembi, Hempstead, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Carl McIntyre, Assistant Director; Justin R. Markel, Senior Litigation Counsel, 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.

Petitioners Blanca Estela Amaya Mejia and her minor son Luis 1 Alexander

Amaya, natives and citizens of El Salvador, seek review of an April 5, 2023,

decision of the BIA affirming an August 6, 2019, decision of an Immigration Judge

(“IJ”) denying their applications for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Blanca Estela Amaya Mejia,

Lewis Alexander Amaya, Nos. A 216 565 682/683 (B.I.A. Apr. 5, 2023), aff’g Nos. A

216 565 682/683 (Immig. Ct. N.Y. City Aug. 6, 2019). We assume the parties’

familiarity with the underlying facts and procedural history.

1 We refer to the son as "Luis" because, as the petition for review explains, that is the proper spelling of his name. On occasion in the past, he has used the spelling "Lewis." 2 We have considered the IJ’s decision as modified by the BIA, i.e., including

only the IJ’s findings that the BIA relied on. See Xue Hong Yang v. U.S. Dep’t of

Just.,

(2d Cir. 2005). We review factual findings for substantial

evidence and questions of law de novo. See Yanqin Weng v. Holder,

(2d Cir. 2009). “[T]he administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

I. Asylum and Withholding of Removal

An applicant for asylum and withholding of removal has the burden to

establish past persecution or at least a well-founded fear of future persecution and

that “race, religion, nationality, membership in a particular social group, or

political opinion was or will be at least one central reason for persecuting the

applicant.”

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

(b), 1208.16(b);

Quituizaca v. Garland,

, 105–06 (2d Cir. 2022) (holding that “one central

reason” standard applies to both asylum and withholding).

A. Domestic Violence Claim—Nexus to a Protected Ground

Amaya Mejia alleged sexual and physical abuse by her former partner

during their relationship, which lasted ten years and ended in 2008, ten years

3 before she left El Salvador. She alleged that her former partner “demanded [she]

follow the rules he made . . . and began to control [her] life,” and described a series

of violent encounters. She never reported his violence to the police because she

believed he would have been detained only temporarily and would have hurt her

further upon release. Amaya Mejia asserts that this abuse was on account of her

membership in particular social groups of “Salvadoran women who refuse to be

controlled as property” and “Salvadoran women who refuse to and do not

conform to the rules imposed on them,” and because of her political opinion in

refusing to assume a gender role.

An applicant who asserts membership in a particular social group as a

protected ground must establish that the group is cognizable. Paloka v. Holder,

(2d Cir. 2014). A cognizable group is one “(1) composed of

members who share a common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in question.”

(quoting

Matter of M-E-V-G-,

(B.I.A. 2014)); see also Hernandez-Chacon

v. Barr,

, 101 (2d Cir. 2020). Particularity means that the group “must

be defined by characteristics that provide a clear benchmark for determining who

falls in the group,” that is, it cannot be “amorphous, overbroad, diffuse, or

4 subjective.” Paloka,

(quoting Matter of M-E-V-G-,

). Social distinction means that society perceives the existence of a group.

“In determining particularity and social distinction what matters is whether

society as a whole views a group as socially distinct, not the persecutor’s

perception.”

“Persecutory conduct aimed at a social group cannot alone

define the group, which must exist independently of the persecution.”

(quoting W-G-R-,

(B.I.A. 2014)).

The agency found that the proposed groups were not cognizable because

they were defined by the harm alleged, that is, they did not exist separately from

the harm of being controlled and being forced to conform. As the Government

argues, Amaya Mejia has not addressed this finding in her brief. Accordingly,

she has arguably abandoned review of these social group claims by not addressing

the basis for the agency’s cognizability finding. See Debique v. Garland,

, 684 (2d Cir. 2023) (“We consider abandoned any claims not adequately

presented in an appellant’s brief, and an appellant’s failure to make legal or factual

arguments constitutes abandonment.” (citation modified)).

Even if the argument is not deemed abandoned, the BIA did not err.

Contrary to Amaya Mejia’s position here, the BIA did not apply the wrong

5 standard. Indeed, it explicitly stated that it was not relying on decisions the

Attorney General had vacated while the appeal was pending and correctly stated

that, for a group to be cognizable, it cannot be defined solely by the alleged

persecution, and it must “exist independently of the persecution.” See Paloka,

(quotation marks omitted). The groups she alleges here do not exist

independently of the alleged persecution.

Moreover, Amaya Mejia did not and does not now point to evidence that

women who refuse to be controlled or refuse to conform to rules imposed on them

are perceived as a distinct group. While she cites evidence that El Salvador has

passed legislation and has established specialized courts and police units to

address domestic violence and protect its victims, this evidence does not establish

that the proposed groups are perceived as distinct by Salvadoran society, and

therefore it is insufficient to establish the cognizability of the proposed groups.

See Hernandez-Chacon, 948 F.3d at 102 (holding that petitioner “failed to provide

sufficient evidence that her proposed subset of Salvadoran women was a socially

distinct group in Salvadoran society” where “[t]he country conditions evidence

addresse[d] widespread violence against women in El Salvador, but . . . [did] not

discuss whether women who reject the sexual advances of gang members are

6 perceived as a distinct group in society or are at greater risk than anyone else who

refuses to comply with a gang member’s demands”).

As to political opinion, the record does not reflect that Amaya Mejia’s

former partner harmed her because of a political opinion. To succeed on a

political opinion claim, “an asylum applicant must show that the persecution

arises from . . . her own political opinion.” Yueqing Zhang v. Gonzales,

(2d Cir. 2005). “[I]t is not sufficient that the persecutor act from ‘a

generalized political motive.’”

(quoting INS v. Elias-Zacarias,

(1992)). Amaya Mejia asserts that her political opinion was evidenced by her

refusal to assume a gender role, and that she was beaten for this

refusal. Petitioner’s Br. at 26. But she does not expand upon the argument

further or specify the gender role that she refused. See Yueqing Zhang,

n.7 (deeming argument abandoned where brief “devote[d] only a single

conclusory sentence” to it). In any event, her case is distinguishable from

Hernandez-Chacon, where we remanded for the BIA to consider more fully whether

a woman established a nexus to a political opinion when she resisted an initial

rape attempt from a gang member and was attacked by the gang to punish her for

that resistance. See 948 F.3d at 104 (remanding for the agency to consider whether

7 petitioner’s “refusal to acquiesce was – or could be seen as – an expression of

political opinion, given the political context of gang violence and the treatment of

women in El Salvador”). Amaya Mejia stated that her former partner was friends

with gangs, but she did not allege that he was a member. Accordingly, her case

lacks the “political context of gang violence,” and Amaya Mejia’s resistance to her

former partner did not take on “a political dimension by transcending mere self-

protection.” Id. at 104 (quoting Yueqing Zhang, 426 F.3d at 547–48 (“[O]pposition

to endemic corruption or extortion . . . may have a political dimension when it

transcends mere self-protection and represents a challenge to the legitimacy or

authority of the ruling regime.”)). 2

B. Gang Based Claim – Objectively Reasonable Future Fear

Amaya Mejia also testified that a gang attempted to recruit her daughter’s

partners, whom she had dissuaded from joining the gang, and that the gang

subsequently visited her house three to five times, threatening her and her son,

and demanding that she store drugs and weapons in her home. Although she

refused, neither she, her son, nor her daughters were harmed by the gangs. Thus,

2 Amaya Mejia also argues that she is entitled to humanitarian asylum, but that relief is available only to applicants who have shown past persecution on account of a protected ground. See

(b)(1)(iii). 8 she did not establish past persecution. See KC v. Garland,

, 135–37

(2d Cir. 2024) (concluding that threats did not constitute past persecution).

Absent past persecution, Amaya Mejia had the burden to demonstrate a

well-founded fear of future persecution.

(b)(2). As the agency

concluded, Amaya Mejia’s fear is not “objectively reasonable.” Ramsameachire v.

Ashcroft,

(2d Cir. 2004), superseded in part by statute on other

grounds,

(b)(1)(B)(iii). “Objective reasonableness entails a showing

that a reasonable person in the petitioner’s circumstances would fear persecution

if returned to his native country.” Jian Xing Huang v. U.S. INS,

(2d Cir. 2005). A fear is not objectively reasonable if it lacks “solid support” in

the record and is merely “speculative at best.”

. While the record

includes background evidence that gangs have a significant presence in El

Salvador, Amaya Mejia has not stated why the gangs would have an ongoing

interest in her (now more than seven years since the events of her claim), and her

daughters have remained unharmed in El Salvador. See Melgar de Torres v. Reno,

(2d Cir. 1999) (holding that the absence of evidence of persecution

of similarly situated family members “cuts against” finding a fear of future

persecution). Contrary to Amaya Mejia’s arguments here, because this finding is

9 dispositive of her and her son’s fear of gangs, the agency was not required to

separately analyze her son’s family-based social group claim.

II. CAT Relief

A CAT applicant “bears the burden of proving the likelihood of future

torture by or with the acquiescence of government officials.” Quintanilla-Mejia v.

Garland,

, 592 (2d Cir. 2021). An applicant must establish that torture

is “more likely than not.”

(c)(2). Acquiescence “requires that

the public official, prior to the activity constituting torture, have awareness of such

activity and thereafter breach his or her legal responsibility to intervene to prevent

such activity.” Quintanilla-Mejia, 3 F.4th at 592 (quoting

(a)(7));

Pierre v. Gonzales,

(2d Cir. 2007) (“A private actor’s behavior can

constitute torture . . . without a government’s specific intent to inflict it if a

government official is aware of the . . . conduct and intent and acquiesces in

violation of the official’s duty to intervene.”).

The agency held that the Amaya Mejia failed to establish either a likelihood

of future torture or that such torture would be by or with the acquiescence of the

Salvadoran government. As the Government argues, Amaya Mejia has failed to

“meaningfully argue” this claim. She asserts that she merits CAT relief because

10 she was found to be credible, violence is prevalent in El Salvador, and the

government is corrupt and colludes with the gangs, but she does not cite record

evidence to support these allegations. See Yueqing Zhang,

n.7

(finding claim abandoned where brief “devote[d] only a single conclusory

sentence to the argument”). Even if raised, the claim lacks merit.

The domestic violence she suffered is not a basis for CAT relief because she

remained unharmed for ten years after the relationship ended and a CAT

applicant has the burden to establish the future torture is “more likely than not.”

(c)(2). As to her fear of gangs, she did not suffer past torture

because she was threatened, but not harmed. See KC, 108 F.4th at 135–37; Kyaw

Zwar Tun v. U.S. INS,

(2d Cir. 2006) (“[T]orture requires proof of

something more severe than the kind of treatment that would suffice to prove

persecution.”). And while the record reflects a high level of gang violence, it does

not establish, as a CAT claimant must, “that someone in [her] particular alleged

circumstances is more likely than not to be tortured,” particularly, as noted above,

the gang members did not act on their threats and have not harmed her daughters.

Mu Xiang Lin v. U.S. Dep’t of Just.,

(2d Cir. 2005) (emphasis

omitted) (quoting Mu-Xing v. Ashcroft,

(2d Cir. 2003),

11 superseded in part by statute on other grounds,

(a)(4)).

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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