United States Court of Appeals
For the First Circuit
No. 09-1903
YULMA MARILI MENDEZ-BARRERA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Selya and Howard, Circuit Judges.
Gerald D. Wall and Greater Boston Legal Services on brief for
petitioner.
Tony West, Assistant Attorney General, Civil Division, United
States Department of Justice, Jamie M. Dowd, Senior Litigation
Counsel, and Andrew N. O'Malley, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
April 15, 2010
SELYA, Circuit Judge. The petitioner, Yulma Marili
Mendez-Barrera, is a native and citizen of El Salvador. She seeks
judicial review of an order of the Board of Immigration Appeals
(BIA) denying her application for asylum, withholding of removal,
and protection under Article III of the United Nations Convention
Against Torture (CAT). After careful consideration we deny this
petition.
The background facts are easily stated. The petitioner
entered the United States illegally, through Mexico, on April 21,
2006. Approximately two weeks later, the Department of Homeland
Security initiated removal proceedings against her.
Just before the expiration of the one-year filing
deadline, see 8 U.S.C. § 1158(a)(2)(B), the petitioner sought
asylum. Pertinently, the petitioner claimed that, if repatriated,
she would face persecution by gang members in El Salvador on
account of her religion, political opinion, and membership in a
particular social group.
At a hearing before an immigration judge (IJ) on June 1,
2007, the petitioner conceded removability but pressed for asylum,
withholding of removal, and protection under the CAT. She
testified that, while in El Salvador, she engaged in many community
activities, participated in athletics at her school, regularly
attended a local church, and participated in political affairs.
She claimed that her diverse community involvement made her a
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target for gang members. Beginning in 2003, gang members would
stop her on the street and endeavor to recruit her, threatening
sexual abuse if she did not acquiesce.
According to the petitioner, this was only the tip of the
iceberg. She described two specific occasions on which gang
members attacked her brother, ostensibly to pressure her to join
their ranks. She also averred that gang members threw rocks at her
family's home, causing the roof to buckle. By 2006, she no longer
felt safe participating in her myriad community pursuits and, thus,
fled from El Salvador.
At the conclusion of the hearing, the IJ found the
petitioner credible, but denied relief due to a lack of
corroborating evidence. In this regard, the only other evidence
presented at the hearing, apart from the petitioner's testimony,1
went to generalized accounts of country conditions in El Salvador
(including accounts of gang violence).
The petitioner appealed. The BIA rejected her appeal,
reasoning that, even if the IJ had overstated the need for
corroboration, the petitioner still had not carried her burden of
showing either past persecution or a well-founded fear of future
persecution on account of a protected ground. In so holding, the
BIA singled out the petitioner's claim that she was a member of a
1
In addition to what is recounted above, the petitioner's
testimony also included second-hand accounts of two incidents that
allegedly had transpired in El Salvador after she fled.
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social group of "young women recruited by gang members who resist
such recruitment." In the BIA's view, that claim failed because,
in the asylum context, social group membership requires that the
group have particular and well-defined boundaries and possess a
recognized level of visibility. This timely petition for judicial
review followed.
Although the BIA upheld the IJ's decision, it did so on
different reasoning. Thus, we review the BIA's order directly and
singularly. See Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir.
2008) (explaining that when "the BIA has conducted an independent
evaluation of the record and rested its affirmance of the IJ's
decision on a self-generated rationale," then "judicial review
normally focuses on the decision of the BIA").2
Our review proceeds pursuant to the substantial evidence
standard. In accordance with the somewhat tautological formulation
of that standard, we must respect the BIA's findings as long as
they are supported by substantial evidence in the record as a
whole. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 2007). This
means, in effect, that the BIA's findings of fact will be upheld
2
We do not suggest that the IJ erred in requiring
corroboration. Under the REAL ID Act of 2005, Pub. L. No. 109-13,
§ 101(a)(3), 119 Stat. 231, 303 (codified at 8 U.S.C.
§ 1158(b)(1)(B)(ii)), an alien bears the ultimate burden of
persuasion, so the absence of easily obtainable corroborating
evidence sometimes can be of decretory significance. See, e.g.,
Chhay v. Mukasey, 540 F.3d 1, 6 (1st Cir. 2008). Here, however,
the BIA did not reach the question of corroboration, and we too can
stop short of reaching it.
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unless the record is such as would compel a reasonable factfinder
to reach a contrary determination. Laurent v. Ashcroft, 359 F.3d
59, 64 (1st Cir. 2004) (citing INS v. Elias-Zacarias, 502 U.S. 478,
481 & n.1 (1992)). We review questions of law de novo, ceding some
deference to the BIA's interpretation of the statutes and
regulations that come within its purview. See Elien v. Ashcroft,
364 F.3d 392, 396-97 (1st Cir. 2004).
At the threshold, we must confront the petitioner's two-
pronged argument that the BIA failed to conduct an individualized
assessment of her claims and did not sufficiently articulate the
basis for its decision. For ease in exposition, we bundle these
assertions together.
There is no requirement that the BIA wax longiloquent in
carrying out its adjudicative role. A brief decision that goes
directly to the point will often suffice. That is not to say that
the BIA has carte blanche. We expect the BIA "to make findings on
all grounds that are necessary" to support its decision. Rotinsulu
v. Mukasey, 515 F.3d 68, 73 (1st Cir. 2008). Nevertheless, "those
findings can be either explicit or implicit." Id. (citing Un v.
Gonzales, 415 F.3d 205, 209 (1st Cir. 2005)). As long as the
"essence of the BIA's decisional calculus" is discernible, the BIA
need not "illuminate the path of its reasoning . . . at great
length or in exquisite detail." Lopez-Perez v. Holder, 587 F.3d
456, 460 (1st Cir. 2009).
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The BIA's decision in this case satisfies these criteria.
The BIA did not mince words but, rather, bluntly articulated an
individualized basis for its rejection of the petitioner's claims.
It explained that the petitioner's testimony, though credible, was
not enough to show that her fear of violence at the hands of El
Salvadoran gangs amounts to fear of persecution on account of a
statutorily protected ground. It proceeded to find that any harm
the petitioner experienced in the past was not on account of a
statutorily protected ground. And with respect to the social group
claim, the BIA explained that the group proposed by the petitioner
did not measure up because it lacked "particular and well-defined
boundaries" and a "recognized level of social visibility." These
and other statements adequately reveal the basis upon which the BIA
denied relief. No more was exigible.
Moving from procedure to substance, we reach the
petitioner's asylum claim. To be entitled to asylum, an alien must
demonstrate that she is unable or unwilling to return to her
homeland "because of [past] persecution or a well-founded fear of
[future] persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42)(A); see Makhoul v. Ashcroft, 387 F.3d 75, 79
(1st Cir. 2004). In order to prove past persecution, an alien must
show serious harm, Banturino v. Holder, 576 F.3d 10, 14 (1st Cir.
2009); a showing of persecution requires "more than mere
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discomfiture, unpleasantness, harassment, or unfair treatment."
Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir. 2005). If past
persecution is established, that showing creates a rebuttable
presumption that a well-founded fear of future persecution exists.
Id. Absent evidence of past persecution, an alien can establish a
well-founded fear of future persecution by showing that (a) the
alien genuinely fears such persecution and (b) an objectively
reasonable person in the alien's circumstances would fear such
persecution. Lopez-Perez, 587 F.3d at 461-62.
The petitioner has cited a salmagundi of statutorily
protected grounds in connection with her asylum claim, including
religion and political opinion. Her principal argument, however,
focuses on social group membership. We grapple with that argument
first, mindful of the petitioner's claim that the relevant social
group comprises "young [El Salvadoran] women recruited by gang
members who resist such recruitment."
To prove persecution on account of membership in a
particular social group, an alien must show at a bare minimum that
she is a member of a legally cognizable social group. See Faye v.
Holder, 580 F.3d 37, 41 (1st Cir. 2009). Although the term "social
group" is not defined by statute, the BIA has described a social
group as a group of persons sharing a common, immutable
characteristic that makes the group socially visible and
sufficiently particular. See id.; see also In re C-A-, 23 I. & N.
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Dec. 951, 959-60 (BIA 2006). We have upheld this delineation of
the term's scope as reasonable. See Faye, 580 F.3d at 41;
Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009); see also
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984) (explaining that when a term in a statute is
ambiguous, courts should give substantial deference to a reasonable
construction of that term by an agency charged with administering
the statute).
In contesting the appropriateness of this definition, the
petitioner asserts that we should ignore it because the BIA changed
the rules in the middle of the game; that is, the BIA departed from
precedent, gutted its immutable characteristic test, and
substituted a new (and unprecedented) social visibility test. This
assertion contains more cry than wool.
The petitioner's underlying premise is sound. An
administrative agency must respect its own precedent, and cannot
change it arbitrarily and without explanation, from case to case.
Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S.
967, 981 (2005); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). But that
principle has no application here. The social visibility criterion
does not signal an abandonment of the common and immutable
characteristic requirement. Rather, it represents an elaboration
of how that requirement operates. We have found this elaboration
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to be not only reasonable but also within the BIA's purview. See
Faye, 580 F.3d at 41 (explaining that a group's immutable
characteristic should make it "generally recognizable in the
community"); Scatambuli, 558 F.3d at 59 (recognizing that the BIA
has permissibly refined its definition to emphasize an element of
social visibility).
In a variation on this theme, the petitioner suggests
that the BIA violated her due process rights by importing a
requirement of social visibility into the decisional calculus
after the record in her case was closed. This suggestion is
disingenuous.
To be sure, the BIA's decision in this case cites two BIA
decisions that were handed down after the petitioner's appearance
in the Immigration Court. See In re S-E-G-, 24 I. & N. Dec. 579
(BIA 2008); In re E-A-G-, 24 I. & N. Dec. 591 (BIA 2008). But
these decisions did not blaze a new trail; earlier case law echoed
the same refrain. See, e.g., In re A-M-E & J-G-U-, 24 I. & N. Dec.
69, 73-74 (BIA 2007); In re C-A-, 23 I. & N. Dec. at 960; see also
Scatambuli, 558 F.3d at 59-60 (noting that the BIA has used the
social visibility criterion since 2006). Because the BIA's
decision in this case did not rest on a new standard, the
petitioner's due process claim is unavailing.
This brings us to the merits of the petitioner's argument
that she was persecuted on account of her membership in a
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particular social group. This argument fails because substantial
evidence supports the BIA's determination that the putative social
group was not legally cognizable.
We start with the social visibility criterion. For a
group to satisfy this criterion, it must be generally recognized in
the community as a cohesive group. See Faye, 580 F.3d at 41. The
petitioner failed to provide even a scintilla of evidence to this
effect. By the same token, she failed to pinpoint any group
characteristics that render members of the putative group socially
visible in El Salvador. On this record, then, the petitioner's
proposed group does not supply an adequate profile for establishing
membership. The putative group is simply too amorphous. This
means, perforce, that the putative group — "young women recruited
by gang members who resist such recruitment" — is not socially
visible.
In an effort to neutralize the adverse effects of this
evidentiary gap, the petitioner argues that it was her own
visibility in the community that made her a target of the gangs.
Even if that is true, it is beside the point. The relevant inquiry
is whether the social group is visible in the society, not whether
the alien herself is visible to the alleged persecutors. See
Amilcar-Orellana v. Mukasey, 551 F.3d 86, 91 (1st Cir. 2008).
In all events, the petitioner's proposed social group is
not sufficiently particular to be legally cognizable. Given her
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loose description of the group, it is virtually impossible to
identify who is or is not a member. There are, for example,
questions about who may be considered "young," the type of conduct
that may be considered "recruit[ment]," and the degree to which a
person must display "resist[ance]." These are ambiguous group
characteristics, largely subjective, that fail to establish a
sufficient level of particularity. See Faye, 580 F.3d at 42.
The failure of the petitioner's social group claim leaves
unresolved her fallback claims that she was persecuted on account
of her religion and/or political opinion. These claims are an
offshoot of her social group claim: she maintains that she harbors
certain religious and political beliefs that lead her to resist
gang membership.
These claims are misguided. Holding particular religious
or political beliefs, without more, is not sufficient to show
persecution on account of those beliefs. See Amilcar-Orellana, 551
F.3d at 91. There must be evidence that the would-be persecutors
knew of the beliefs and targeted the belief holder for that reason.
There is no such evidence in the instant record. As the
petitioner herself relates, gang members wanted her to sell drugs
at her school, and their recruitment efforts stemmed from their
desire to make money with the petitioner's help.
If more were needed — and we doubt that it is — the term
"persecution" implies a governmental link; that is, "the government
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must practice, encourage, or countenance it, or at least prove
itself unable or unwilling to combat it." Lopez-Perez, 587 F.3d at
462. Here, the petitioner has failed to provide any evidence of a
linkage between the government and the gangs. This failure of
proof, in itself, dooms her application for asylum.
This ends the asylum issue. For the foregoing reasons,
the BIA supportably rejected the petitioner's claim for asylum.
The same reasoning is dispositive of the petitioner's
claim for withholding of removal. Because the petitioner failed to
carry the devoir of persuasion for the asylum claim, her claim for
withholding of removal necessarily fails. After all, withholding
of removal requires a showing, by a clear probability, that an
alien will more likely than not face persecution if repatriated.
Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009). This showing is
more stringent than the showing required for asylum. See id.
Consequently, "if a claim for asylum is rejected on the merits, a
counterpart claim for withholding of removal must necessarily
fail." Villa-Londono v. Holder, ___ F.3d ___, ___ n.1 (1st Cir.
2010) [No. 09-1832, 2010 WL 850190, at *2 n.1] (citing Orelien v.
Gonzales, 467 F.3d 67, 73 (1st Cir. 2006); Bocova v. Gonzales, 412
F.3d 257, 262 (1st Cir. 2005)).
Finally, the petitioner argues that the BIA erred in
denying her CAT claim. Gaining relief under the CAT entails a
showing that an alien will, upon repatriation, more likely than not
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face torture with the consent or acquiescence of the government
then in power. See 8 C.F.R. §§ 1208.16(c), 1208.18(a)(1); Chhay v.
Mukasey, 540 F.3d 1, 7 (1st Cir. 2008). Apart from generalized
country conditions reports, the petitioner has not presented any
evidence of such a likelihood.
The country conditions reports, standing alone, do not
carry the day. Although such reports are sometimes helpful to an
alien's claim, their generic nature is such that they are rarely
dispositive. See Seng v. Holder, 584 F.3d 13, 20 (1st Cir. 2009);
Amouri, 572 F.3d at 35. So it is here: because the petitioner
failed to proffer any particularized facts relating to her specific
claim that she would face a likelihood of government-sanctioned
torture, we hold that substantial evidence supports the BIA's
rejection of her CAT claim.
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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