Lopez-Monroy v. United States Department of Homeland Security, 102418 FED3, 17-3742
| Opinion Judge | RENDELL, CIRCUIT JUDGE: |
| Party Name | OSBELI LOPEZ-MONROY, Petitioner v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL UNITED STATES OF AMERICA; UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT, Respondents |
| Judge Panel | Before: JORDAN, VANASKIE and RENDELL, Circuit Judges |
| Case Date | October 24, 2018 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Submitted under Third Circuit L.A.R. 34.1(a) September 14, 2018
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No.: A089-006-588) Immigration Judge: Honorable Mirlande Tadal
Before: JORDAN, VANASKIE and RENDELL, Circuit Judges
OPINION1
RENDELL, CIRCUIT JUDGE:
Osbeli Lopez-Monroy, a native and citizen of Guatemala, seeks review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") denial of his petitions for statutory withholding of removal and request for protection under the Convention Against Torture ("CAT"). Because Lopez-Monroy failed to state a cognizable particular social group ("PSG") and the BIA's conclusion that Lopez-Monroy failed to provide sufficient facts amounting to torture is supported by substantial evidence, we will affirm.2
I. Background 3
Mr. Lopez-Monroy entered the United States in 2003 at the age of fifteen without inspection or admission. In 2009, the Department of Homeland Security issued Lopez-Monroy a Notice to Appear commencing immigration removal proceedings. In 2017, Lopez-Monroy renewed his earlier effort to obtain statutory withholding of removal and protection under CAT.
The IJ held a hearing to review the petitions. Lopez-Monroy testified at the hearing that he came to the United States from Guatemala, fleeing death threats from the Villeda family "who have threatened [him] for [his] entire life." A.R. 182. Lopez-Monroy's mother also testified at the hearing about threats from the Villeda family. Lopez-Monroy called an expert witness to testify about the dangers in Guatemala. Lopez-Monroy's written submission urged that "it is more likely than not that he would be persecuted on account of his membership in a particular social group if he [were] forced to return to Guatemala, namely, his status as 'an individual whose family was targeted by a family of criminals, '" A.R. 621, and "[he] will face torture and severe human rights violations if he is returned to Guatemala," A.R. 627.
The IJ denied Lopez-Monroy's petitions. She found that Lopez-Monroy failed to state a cognizable PSG with a "'clear benchmark' for the 'outer limits' of th[e] group." A.R. 115. The IJ also found that, even assuming a cognizable social group existed, Lopez-Monroy failed to show past persecution or a clear probability of future persecution. As for the CAT petition, the IJ found it was not likely that Lopez-Monroy would be subjected to torture if he returned to Guatemala.
Mr. Lopez-Monroy appealed the IJ's decision to the BIA. The BIA dismissed the appeal. The BIA found Lopez-Monroy did not state a cognizable PSG. The BIA also rejected the alternative PSG proffered by Lopez-Monroy, namely, "members of [his] family who attempted to speak out against the Villeda family," because this was a new definition "not raised during the prior proceedings." A.R. 5. Regarding the CAT petition, the BIA found "Respondent has not demonstrated that [his] experiences, in their entirety . . . amount to torture." Id.
Lopez-Monroy filed a Petition for Review with our court.
II. Discussion
We review questions of law de novo, Castro v. Att'y Gen., 671 F.3d 356, 365 (3d Cir. 2012), and agency determinations under the substantial evidence standard, I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We will only overturn an agency's determination if "any reasonable adjudicator would be compelled to conclude to the contrary" based on the record. 8 U.S.C. § 1252(b)(4)(B). When reviewing the BIA's decision, we consider the IJ's opinion to the extent the BIA "substantially relied" upon it in reaching its decision. Camara v. Att'y Gen., 580 F.3d 196, 201 (3d Cir. 2009). With these standards in mind, we review the BIA's denial of Lopez-Monroy's petitions for statutory withholding of removal and protection under CAT.
A. The BIA correctly denied the petition for statutory withholding of removal because Lopez-Monroy's PSG is not cognizable.
To succeed on a petition for statutory withholding of removal, a petitioner bears the burden to show that he is likely to be persecuted if he returns to his country "on account of . . . [his] membership in a particular social group." 8 U.S.C. § 1101(a)(42)(A). A PSG 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-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).4 The BIA found two reasons to reject Lopez-Monroy's PSG of "an individual whose family was targeted by a family of criminals." First, the PSG is not cognizable because it is impermissibly circular. Second, the PSG lacks particularity.5
First, we agree that Lopez-Monroy's PSG is impermissibly circular. A cognizable PSG "must exist independently of the persecution suffered." Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003); see also Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005) ("The persecution cannot be what defines the contours of the group."). The defining feature of Lopez-Monroy's PSG-targeted by a family of criminals-is the very harm from which he seeks protection. Because the PSG "must have existed before the persecution began" and the fact of being targeted by the Villeda family created the persecution, Lopez-Monroy's PSG is not cognizable. Lukwago, 329 F.3d at 172.
Second, substantial evidence supports the BIA's conclusion that the PSG is not defined with particularity. A PSG is "particular," if it provides a...
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