United States Court of Appeals
For the First Circuit
No. 09-1869
MAYNOR ALONSO LARIOS,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, and Thompson,
Circuit Judges.
Martin D. Harris on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, James
A. Hunolt, Senior Litigation Counsel, and Nehal H. Kamani, Trial
Attorney, Office of Immigration Litigation, Civil Division, on
brief for respondent.
June 21, 2010
THOMPSON, Circuit Judge. Petitioner Maynor Alonso Larios
(Larios) is a native and citizen of Guatemala. He seeks review of
the Board of Immigration Appeals'(BIA) final order, affirming
without opinion the Immigration Judge's (IJ) decision denying his
application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). Limiting his appeal to
the asylum issue, Larios argues that the BIA violated his due
process rights by summarily affirming a decision in which the IJ
allegedly failed to consider all of his claims for relief. For the
reasons that follow, we deny the petition for review.
BACKGROUND
Larios first arrived in the United States on or about July
29, 2005. He was fourteen years old. On September 2, 2005, the
Department of Homeland Security (DHS) filed a Notice to Appear (NTA)
with the immigration court, commencing removal proceedings against
Larios. DHS maintained that Larios was subject to removal under
§ 212(a)(6)(A)(I) of the Immigration and Nationality Act (INA), 8
U.S.C. § 1182(a)(6)(A)(I), as an alien present in the United States
without admission or parole.1 In his "Respondent's Pleadings,"
1
§ 212(a)(6)(A)(i)of the INA, 8 U.S.C. § 1182 (a)(6)(A)(i),
states the following:
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to
receive visas and ineligible to be admitted to the United
States:
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dated August 9, 2006, Larios, through counsel, admitted the truth
of the allegations in the NTA and conceded removability. On June
27, 2006, Larios submitted his application for asylum, withholding
of removal, and protection under CAT. After an evidentiary hearing
held on October 1, 2008, the IJ issued an oral decision denying
Larios's application for asylum, withholding of removal, and CAT
claims. Finding Larios ineligible for relief because he failed to
establish that he faced future persecution on account of a protected
ground, the IJ ordered Larios removed to Guatemala.2 On appeal to
the BIA, the BIA affirmed the IJ's decision without issuing a
separate opinion. This petition for review followed.
STANDARD OF REVIEW
In immigration cases, we review findings of fact,
including credibility determinations, under the highly deferential
"substantial evidence" standard. Olujoke v. Gonzales, 411 F.3d 16,
21 (1st Cir. 2005). Accordingly, we must affirm the findings upon
which the decision is based if they are "supported by reasonable,
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
(i) In general
An alien in the United States without being admitted or
paroled, or who arrives in the United States at any time or place
other than as designated by the Attorney General, is
inadmissible.
2
The IJ also found that Larios was ineligible for voluntary
departure because Larios, through counsel, had waived this remedy
at the beginning of the hearing.
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substantial, and probative evidence on the record considered as a
whole." I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). This
means that the findings must stand unless the record evidence is
such as to compel a reasonable fact-finder to make a contrary
determination. Olujoke, 411 F.3d at 21; see also 8 U.S.C.
§ 1252(b)(4)(B). We review the agency's legal interpretations de
novo, subject to appropriate principles of administrative deference.
See Naeem v. Gonzales, 469 F.3d 33, 36 (1st Cir. 2006). We also
review de novo whether immigration procedures comport with due
process. Walker v. Holder, 589 F.3d 12, 18 (1st Cir. 2009).
Where the BIA summarily affirms the IJ's asylum
determination, as is the case here, we review the IJ's decision as
if it were the decision of the BIA. Olujoke, 411 F.3d at 21; see
also Albathani v. I.N.S., 318 F.3d 365, 373 (1st Cir. 2003)(quoting
Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)("Ordinarily,
Courts of Appeals review decisions of the [BIA], and not those of
an IJ. When the BIA does not render its own opinion, however, and
either defers [to] or adopts the opinion of the IJ, a Court of
Appeals must then review the decision of the IJ.")).
DISCUSSION
Larios's Arguments
While Larios's brief is far from a paragon of clarity, he
seems to be arguing two separate points. First, he contends--though
vaguely at best--that the affirmance without opinion (AWO) procedure
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in and of itself is constitutionally infirm. Consequently, the
Government addressed the issue in its reply brief. Second, Larios
argues that the BIA's use of the AWO procedure in this instance
violated his due process rights because the IJ allegedly failed to
consider all the grounds for relief raised by him. More
specifically, Larios claims that even though the IJ made findings
as to the particular social group of youth resistant to gangs, the
IJ failed to specifically address Larios's claim that if deported,
Larios would be a street child. We will discuss these two
arguments sequentially. We begin by addressing briefly the
constitutionality of the AWO procedure.
AWO Procedure
As a general matter, we have held time and time again that
the AWO procedure constitutes "a valid exercise of the Attorney
General's discretion to fashion its own rules of procedure."
Mekhoukh v. Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004); see also
Albathani, 318 F.3d at 377. As we stated in Albathani,
"promulgation of the AWO regulations is within the power of the
[DHS]." 318 F.3d at 377. That being so, the BIA can adopt, without
further explanation, the IJ's opinion. Id. Where the BIA affirms
without opinion the decision of the IJ, the IJ's decision becomes
the final agency decision for purposes of this Court's review. See
8 C.F.R. § 1003.1(e)(4)(ii). Accordingly, any suggestion by Larios
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that the AWO procedure in and of itself violates his due process
rights is without merit.
Asylum Claim
Larios's claim for asylum turns on his contention that he
has a well-founded fear of persecution based on his membership
within two particular social groups: the first group comprised of
young Guatemalan men recruited by gang members who resist such
recruitment and the second group comprised of street children.3
Larios alleges the IJ failed to adequately consider both grounds for
asylum relief, thus depriving him of due process.
As an initial matter, the burden of proof for establishing
eligibility for asylum falls on the petitioner. See 8 C.F.R.
§ 208.13(a). The applicant must show that he or she is a refugee
within the meaning of the immigration laws. Olujoke, 411 F.3d at
21; see also 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). "A refugee
is a person who cannot or will not return to [his or] her home
country '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.'"
Olujoke, 411 F.3d at 21; see also 8 U.S.C. § 1101(a)(42)(A).
3
In proceedings before the IJ, Larios never alleged that he
had been a victim of past persecution, so we analyze his asylum
claim by considering whether he proved a well-founded fear of
future persecution based on a statutorily protected ground.
See 8 C.F.R. § 208.13(b).
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To prove persecution on account of membership in a
particular social group, Larios must show at a bare minimum that he
is a member of a legally cognizable social group. See Mendez-
Barrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010). The term
"social group" is not defined by statute. However, 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." Id. Neither of Larios's proposed social
groups meets this standard.
Youth Resistant to Gang Recruitment
As to Larios's first claim, the IJ concluded that Larios,
though credible, nonetheless failed to establish a well-founded fear
of persecution on account of membership in a particular social
group. Specifically, the IJ found that Larios feared future
persecution at the hands of gang members seeking him out for
recruitment purposes or retaliating against him for refusing to join
their gang. Nevertheless, the IJ determined that if Larios was
indeed targeted by gangs, the motivation would not be on account of
his membership in a particular social group but would rather be an
attempt to increase the gang's numbers. The IJ also found that the
gang members may target Larios under the mistaken belief that
because he is returning from the United States, he comes from a
family with money.
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In support of his findings, we first note that the IJ
properly applied controlling BIA case law. See Matter of S-E-G-,
24 I. & N. Dec. 579 (BIA 2008)(holding that Salvadoran youths who
have been subjected to recruitment efforts by the MS-13 gang and who
have resisted membership in the gang do not constitute a particular
social group); Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA
2008)(holding that a young Honduran male failed to establish
membership in particular social group of persons resistant to gang
membership, as evidence failed to establish that Honduran society,
including gang members themselves, would perceive those opposed to
gang membership as members of a social group); see also Matter of
A-M-E- & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007). Morever, Larios's
claim is foreclosed by our recent decision in Mendez-Barrera.
There, we held that "young [El Salvadoran] women recruited by gang
members who resist such recruitment" do not constitute a legally
cognizable social group because the proposed group lacks social
visibility and is not sufficiently particular. Mendez-Barrera, 602
F.3d at 27. In order to satisfy the social visibility criterion,
a group "must be generally recognized in the community as a cohesive
group." Id. at 26. Like the petitioner in Mendez-Barrera, Larios
has "failed to provide even a scintilla of evidence to this effect."
Id. Furthermore, Larios has "failed to pinpoint any group
characteristics that render members of the putative group socially
visible in [Guatemala]." Id. Larios's "proposed group does not
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supply an adequate profile for establishing membership," and
therefore, "the putative group-[youth resistant to gang
recruitment]-is not socially visible." Id. at 26-27.
Additionally, Larios's proposed social group is "not
sufficiently particular to be legally cognizable." Id. at 27. As
we stated in Mendez-Barrera,
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.
Id. (quoting Faye, 580 F.3d at 42). Larios's purported social group
of youth resistant to gang recruitment suffers from these same
infirmities. Accordingly, because this putative social group is
neither socially visible nor sufficiently particular, we conclude
that the IJ did not err in denying Larios's claim for asylum based
on Larios's membership in this particular group.
Street Children
Larios next argues that the IJ should have considered
evidence that if Larios returned to Guatemala he would have a well-
founded fear of persecution based upon his membership within a
legally cognizable social group, to wit, "street children." The
IJ's alleged failure to address this argument, he contends, deprives
him of due process rights. However, not once when testifying did
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Larios ever specifically claim that he would end up as a street
child. Indeed, when asked if he would end up living on the streets,
homeless in Guatemala, Larios conceded that he would not.
Similarly, there was no argument made before the IJ as to why Larios
would even meet the criteria of a "street child." Consequently,
because Larios failed to properly raise this claim before the IJ,
this argument is deemed waived on appeal. See Kechichian v.
Mukasey, 535 F.3d 15, 22 (1st Cir. 2008) (finding no error in the
BIA's refusal to address claim that had not been properly raised
before the IJ).
In reaching our conclusion we are mindful of the strict
standards of review by which we are bound. We do not have the
authority to grant the petition unless the evidence compels a
conclusion different from that reached by the IJ. Mejilla-Romero
v. Holder, 600 F.3d 63, 76 (1st Cir. 2010). On the record before
us, we cannot say that it does. Substantial evidence exists to
uphold the IJ's determination that Larios's testimony, though
credible, was not enough to show that he had a well-founded fear of
persecution on account of his membership in a statutorily protected
social group.
CONCLUSION
In sum, the IJ's decision to deny Larios's asylum claim
was well-reasoned and supported by controlling precedent:
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substantial evidence exists to uphold the decision of the IJ. The
petition is denied.
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