Lemus-De Umana v. Sessions
707 F. App'x 32
| 2d Cir. | 2017Background
- Elbia Noemi Lemus-de Umana and her three minor children, Salvadoran nationals, sought asylum, withholding of removal, and CAT relief after threats following her husband’s murder by gangs.
- An IJ denied relief on July 13, 2015; the BIA affirmed on December 15, 2015. Petitioners sought review in the Second Circuit.
- Umana initially proposed the social group “people who oppose and are threatened by gangs,” later refining it on appeal to “people whose family members were murdered by gangs.”
- Evidence included telephone threats and police reports; Umana testified police were slow to respond but did not show they refused to act.
- Petitioners did not challenge key agency bases on appeal (social-group and government acquiescence findings), so the court treated some arguments as waived but reviewed the record anyway.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed social group is legally cognizable for asylum/withholding | Umana: group = “people who oppose and are threatened by gangs” (and later, “people whose family members were murdered by gangs”) | Gov: groups are overbroad, not socially distinct, and facts don’t show perpetrators knew of group membership | Court: groups are overbroad and not shown to be socially distinct; no evidence threats were "on account of" group membership — claim fails |
| Whether persecutory harm was "on account of" membership in the group | Umana: targeted because of opposition/ family murder or perceived wealth | Gov: record shows targeting for perceived money, not a protected characteristic; no evidence perpetrators knew of opposition or family murder | Court: petitioner did not show persecutors were aware of protected characteristic or that it was a central reason for harm |
| Eligibility for CAT relief (torture by or with government acquiescence) | Umana: threats and police inaction show risk of torture and acquiescence | Gov: threats unfulfilled and police non-priority response ≠ acquiescence; no particularized evidence of likely torture | Court: telephone threats do not constitute torture; police slow response ≠ acquiescence; CAT claim denied |
| Due process / IJ bias claim | Umana: IJ exhibited bias/speculation and denied due process | Gov: petitioner received full hearing; decision based on evidence and law | Court: no due process violation; claim reflects disagreement with merits |
Key Cases Cited
- Wangchuck v. DHS, 448 F.3d 524 (2d Cir. 2006) (standard for reviewing IJ and BIA decisions)
- Gjolaj v. Bureau of Citizenship & Immigration Servs., 468 F.3d 140 (2d Cir. 2006) (standards of review in immigration appeals)
- Norton v. Sam’s Club, 145 F.3d 114 (2d Cir. 1998) (issues not sufficiently argued are waived)
- Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (particular social group requires social distinction)
- Rodas Castro v. Holder, 597 F.3d 93 (2d Cir. 2010) (persecution must be "on account of" group membership)
- Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554 (2d Cir. 2006) (persecutor must be or could become aware of the protected characteristic)
- Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (appearance of wealth is not a cognizable social group)
- Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408 (2d Cir. 2006) (unfulfilled threats do not necessarily constitute past persecution)
- Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008) (government acquiescence may be shown by persistent inaction after reports)
- Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156 (2d Cir. 2005) (denial of CAT relief where applicant lacks particularized evidence of likely torture)
- Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008) (due process requires full and fair removal hearing)
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (failure to adduce evidence can support agency decision)