Claros Cantarero v. Holder, Jr.

United States Court of Appeals
For the First Circuit

No. 12-1624

KEVIN FABRICIO CLAROS CANTARERO,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.

Timothy J. Nutter, with whom Law Office of Timothy J. Nutter
was on brief, for petitioner.
Matthew B. George, Trial Attorney, Office of Immigration
Litigation, with whom Stuart F. Delery, Acting Assistant Attorney
General and Mary Jane Candaux, Assistant Director were on brief,
for respondent.

October 31, 2013
 HOWARD, Circuit Judge. Kevin Fabricio Claros Cantarero

("Claros"), a citizen and native of El Salvador, is an ex-member of

a violent criminal street gang based in the United States.

Claiming that he would face persecution and torture on account of

his former gang membership if repatriated, Claros applied for

asylum, withholding of removal, and protection under the Convention

Against Torture ("CAT"). An Immigration Judge ("IJ") denied his

applications, and the Board of Immigration Appeals ("BIA")

affirmed. We deny his petition for review.

I.

Claros entered the United States without inspection in

2004, when he was twelve years old. He came to join his parents,

who had arrived in 1992 and who became beneficiaries of the

Temporary Protected Status program.1 He has lived here

continuously since then.

In April 2010, the Bureau of Immigration and Customs

Enforcement ("ICE") took Claros into custody2 and served him with

a Notice to Appear charging him as removable under section

1
Claros's mother filed an application for asylum that has
been pending for some years now. Claros tells us that he is listed
as a derivative asylum beneficiary in that application. The record
makes clear that, although listed as her child, Claros is not
listed as a derivative beneficiary because he was not in the United
States at the time the application was filed.
2
Claros was released on bond several weeks later but was
taken into ICE custody again in June 2011 following a spate of
arrests. He has remained in custody since then.

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212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA").

See 8 U.S.C. § 1182(a)(6)(A)(i). Claros conceded removability and

applied for asylum, withholding of removal, and relief under the

CAT.

At an evidentiary hearing before an IJ, Claros testified

that he joined the East Boston arm of the 18th Street gang when he

was sixteen years old. The 18th Street gang is a prominent violent

criminal gang that is active throughout the United States and Latin

America. See Luz E. Nagle, Criminal Gangs in Latin America: The

Next Great Threat to Regional Security and Stability?, 14 Tex.

Hisp. J.L. & Pol'y 7, 9 (2008). Claros learned that gang

membership entailed engaging in a variety of illicit activities,

including robberies, thefts, and drug dealing. He received several

tattoos identifying him as a member of the 18th Street gang, some

of which are prominently displayed.

Two years after joining the gang, Claros became afraid of

the violent nature of gang life following a gang-related shooting

in the area where he was partying one night. Soon afterward,

Claros experienced a religious conversion and decided to leave the

gang. Some members of his gang beat him as a result. The leader

of the gang warned Claros that membership in the gang was a

lifelong commitment and that if he tried to leave, the gang would

kill him or members of his family.

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 Claros testified that he feared persecution in El

Salvador on account of his former gang membership. Specifically,

he feared reprisals from the Salvadoran branch of the 18th Street

gang for his having renounced gang membership, as well as

persecution at the hands of rival gangs and police authorities. He

would become an easy target, argued Claros, because of his gang

tattoos.

The IJ found that Claros had indeed joined the 18th

Street gang in the United States and was sincere in his desire to

leave the gang. The IJ, however, rejected Claros's argument that,

as a former member of the gang, he is a member of a protected

social group eligible for asylum or withholding of removal.

Claros's claim under the CAT fared no better, as the IJ found no

evidence that the government of El Salvador is more likely than not

to torture Claros or to acquiesce in his torture.

The BIA agreed with the IJ and dismissed Claros's appeal.

It found controlling the principles announced in Matter of E–A–G-,

24 I. & N. Dec. 591 (BIA 2008), where it held that individuals

erroneously perceived as gang members cannot constitute a

"particular social group" under the INA. As in Matter of E-A-G-,

the BIA here was persuaded by the Ninth Circuit's rationale in

Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir. 2007), that

Congress could not have intended to offer refugee status based on

an alien's membership in a violent criminal street gang in this

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country. The BIA noted that the Seventh Circuit recognized an ex-

gang member as a member of a protected social group in Benitez

Ramos v. Holder, 589 F.3d 426, 429-30 (7th Cir. 2009), but it was

unpersuaded, and concluded that our circuit would not require it to

follow suit.

Because Claros failed to establish that the persecution

he anticipated in El Salvador was on account of a protected ground,

the BIA held that he was ineligible for asylum and, by extension,

for withholding of removal. The BIA also agreed with the IJ that

Claros failed to show that he would more likely than not be

tortured at the hands of the Salvadoran government, precluding his

CAT claim. This timely appeal followed.

II.

Persecution on the basis of "membership in a particular

social group" is, along with persecution on the basis of race,

religion, nationality, or political opinion, a ground for granting

asylum or withholding of removal. 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1), 1231(b)(3). Claros argues that former members of the

18th Street gang constitute a cognizable particular social group.

The BIA rejected his claim on the grounds that membership in a

violent criminal street gang cannot serve as the basis for

protected-group status under the INA.

Where, as here, the BIA rejects an applicant's proffered

social group on legal grounds, its decision is subject to de novo

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review. Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir. 2004).

Because we are confronted with a question implicating "'an agency's

construction of the statute which it administers,'" we follow

Chevron principles in our review of the BIA's decision. I.N.S. v.

Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (quoting Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

Accordingly, we first ask whether "the statute is silent or

ambiguous with respect to the specific issue" before us; if so,

"the question for the court is whether the agency's answer is based

on a permissible construction of the statute." Chevron, 467 U.S.

at 843.

The first question need not detain us long. The INA does

not define the term "particular social group." The term originated

in the 1967 United Nations Protocol Relating to the Status of

Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, with no guidance in

the legislative history as to its meaning. Sanchez–Trujillo v.

I.N.S., 801 F.2d 1571, 1575 (9th Cir. 1986). "Because of this

indeterminacy in the drafting process, the United States, along

with other developed countries, has had to struggle to give meaning

to a term that has little pedigree of its own." Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1095 (9th Cir. 2013) (Kozinski, C.J.,

dissenting); see Fatin v. I.N.S., 12 F.3d 1233, 1238 (3d Cir. 1993)

(noting that meaning of this term is so ambiguous that "[b]oth

courts and commentators have struggled to define [it]," and "[r]ead

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in its broadest literal sense, the phrase is almost completely

open-ended"). Accordingly, our role in the process of interpreting

this phrase is quite limited. We must uphold the BIA's

interpretation, provided it is based on "a permissible construction

of the statute." Aguirre-Aguirre, 526 U.S. at 424 (internal

quotation marks omitted). We have no doubt that the BIA's decision

in this case passes muster under this deferential standard.

The BIA first interpreted the phrase "particular social

group" in Matter of Acosta as referring to "a group of persons all

of whom share a common, immutable characteristic." 19 I. & N. Dec.

211, 233 (BIA 1985). Recognizing that "a shared past experience"

may be sufficient "in some circumstances," the BIA noted that the

"particular kind of group characteristic that will qualify under

this construction remains to be determined on a case-by-case

basis." Id. In subsequent decisions, the BIA elaborated that the

proffered characteristic must make the group socially visible and

sufficiently particular. See Matter of S-E-G-, 24 I. & N. Dec.

579, 582-83 (BIA 2008); see also Scatambuli v. Holder, 558 F.3d 53,

59–60 (1st Cir. 2009) (examining the contours of the BIA's social

visibility test and finding that "it is relevant to the particular

social group analysis").

Claros argues that his proposed group falls squarely

within the BIA's definition of "particular social group" because

the group is both socially visible and sufficiently particular.

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The BIA, however, did not rely on its social visibility criteria in

rejecting Claros's claim. Indeed, the BIA cited extensively to its

decision in Matter of E-A-G-, which rejected a social group

composed of "young persons who are perceived to be affiliated with

gangs" despite acknowledging that "[g]ang membership does . . .

entail some 'social visibility.'" 24 I. & N. Dec. at 595. Rather,

the BIA rejected Claros's proposed group on the grounds that

recognizing former members of violent criminal gangs as a

particular social group would undermine the legislative purpose of

the INA. Like the court in Arteaga, the BIA held that it is

inconceivable that "'Congress, in offering refugee protection for

individuals facing potential persecution through social group

status, intended to include violent street gangs who assault people

and who traffic in drugs and commit theft.'" Matter of E-A-G-, 24

I. & N. Dec. at 596 (quoting Arteaga, 511 F.3d at 945-46). In

short, the BIA held that this type of shared past experience is not

a cognizable group characteristic for the purposes of the INA.

We cannot say that the BIA's interpretation is either

unreasonable or impermissible. See Arteaga, 511 F.3d at 944–46

(holding that neither current nor former gang members constitute a

particular social group); cf. Elien, 364 F.3d at 397 (deferring to

the BIA's determination that aliens who commit crimes in the United

States are not a protected social group); Bastanipour v. I.N.S.,

980 F.2d 1129, 1132 (7th Cir. 1992) (rejecting a comparable

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argument that drug traffickers are a recognized group under the

INA). The BIA reasonably concluded that, in light of the manifest

humanitarian purpose of the INA, Congress did not mean to grant

asylum to those whose association with a criminal syndicate has

caused them to run into danger. See Arteaga, 511 F.3d at 942

(noting that courts ought not "become misled by expansive and

abstract definitions of the term 'social group' to the extent that

the application of such a definition fails to comport with the

manifest legislative purpose of the law and its language"). Such

recognition would reward membership in an organization that

undoubtedly wreaks social harm in the streets of our country. It

would, moreover, offer an incentive for aliens to join gangs here

as a path to legal status. Cf. Elien, 364 F.3d at 397 (noting that

recognizing aliens who commit crimes in the United States as a

protected social "unquestionably would create a perverse incentive

for [aliens] . . . to commit crimes, thereby immunizing themselves

from deportation"). Accordingly, the BIA's interpretation merits

our deference under Chevron.

Claros contends that the BIA's reasoning is flawed as

applied to former gang members. Unlike current gang members, he

tells us that he no longer belongs to a "dangerous street gang"

precisely because he decided to escape the violent and criminal

nature of gang life. He insists that he will be persecuted

precisely because he left the gang, and also because he will be

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misidentified as a current gang member due to his tattoos. These

distinctions do not invalidate the BIA's conclusion that former

gang members are not eligible for asylum. A former gang member was

still a gang member, and the BIA is permitted to take that into

account. That he renounced the gang does not change the fact that

Claros is claiming protected status based on his prior gang

membership, and he does not deny the violent criminal undertakings

of that voluntary association. Although, as Claros points out, the

proposed group also shares non-criminal past experiences, namely

their initiation rites, tattoos, and status as Spanish-speaking

immigrants, the BIA is not required to dissect a group's past

experiences and credit only the arguably innocuous ones. The

shared past experiences of former members of the 18th Street gang

include violence and crime. The BIA's decision that this type of

experience precludes recognition of the proposed social group is

sound.

Withal, we decline to follow in the footsteps of the

Sixth and Seventh Circuits in reversing the BIA on this issue. See

Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir. 2010);

Benitez Ramos, 589 F.3d at 429-30. The Sixth Circuit did not

address the BIA's conclusion that it would be inconsistent with

policies inherent in the statute to recognize participation in a

criminal syndicate as a basis for refugee protection. See Urbina-

Mejia, 597 F.3d at 365-67. Instead, the court relied on the fact

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that former gang membership is a characteristic impossible to

change, id., and did not consider that immutability, though a

necessary predicate, is not sufficient for recognition as a social

group. The Seventh Circuit went a step further and rejected the

BIA's interpretation on the grounds that Congress had no intention

of barring ex-gang members from constituting a particular social

group. Benitez Ramos, 589 F.3d at 429-30. Congress evinced this

lack of intent, that court concluded, by not naming former gang

members when it categorically banned certain individuals from

obtaining relief under the INA, such as persecutors and those who

have committed a "serious nonpolitical crime." Id. (citing 8

U.S.C. §§ 1158(b)(2)(A), 1231(b)(3)(B)). As the BIA had failed to

explain "why the statutory bars . . . should be extended by

administrative interpretation to former members of gangs," the

court rejected the agency's position that former gang members do

not constitute a protected social group. Id. at 430. We think

that the statutory scheme provides enough support under a Chevron

review to sustain a different answer. Whether an applicant is

statutorily barred from obtaining relief under the INA comes into

play only after an applicant is deemed to fall within one of the

five protected grounds. See 8 U.S.C. § 1158(b)(2)(A). The

statutory bars have no bearing on whether an applicant is a member

of a particular social group, the basis for the BIA's preclusion of

former members of violent criminal gangs. Thus, we disagree that

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Congress's decision not to expressly exclude former gang members is

probative of its intent as to whether they are eligible for refugee

status as a protected group. It would also seem that the Seventh

Circuit's approach would render largely superfluous the term

"social group" since, by its reasoning, anyone persecuted for any

reason (other than perhaps a personal grudge) might be said to be

in such a group.

In sum, we are not persuaded that those courts which have

reversed the BIA on this issue have advanced rationales sufficient

to overcome Chevron deference. The agency's decision that Claros

is not a member of a particular social group must stand.

Claros has one more arrow in his quiver. He challenges

the BIA's factual finding that he does not qualify for relief under

the CAT. We review the BIA's findings of fact for substantial

evidence, accepting those findings as long as they are "supported

by reasonable, substantial, and probative evidence on the record

considered as a whole." I.N.S. v. Elias-Zacarias, 502 U.S. 478,

481 (1992) (internal quotation marks omitted). In denying his CAT

claim, the BIA agreed with the IJ that Claros presented

insufficient evidence that he would more likely than not be

tortured at the hands of the Salvadoran government. See Lopez de

Hincapie v. Gonzales, 494 F.3d 213, 221 (1st Cir. 2007) ("[T]he

infliction of harm does not constitute torture within the meaning

of the CAT unless that harm is inflicted by, at the direction of,

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or with the acquiescence of government officials."). The record

does not compel a different conclusion. In rejecting Claros's

argument that the government of El Salvador is unable to protect

those who are persecuted by gangs, the IJ credited evidence that

the government is actively seeking to curb gang violence. As we

said in Mayorga-Vidal v. Holder, that "El Salvador's efforts at

managing gang activity have not been completely effectual" does not

compel a conclusion that the government has acquiesced in gang

activities. 675 F.3d 9, 20 (1st Cir. 2012).

Claros also argues that the police authorities in that

country arbitrarily detain suspected gang members and torture them.

He provides no specific evidence to support the claim; instead he

merely refers to a large swath of the record, listing no fewer than

ten country reports and other documentary evidence that span over

150 pages and cover an array of topics. And so he tasks us to

search for needles in a haystack. "We have long warned litigators

that it is not the obligation of federal courts to 'ferret out and

articulate the record evidence considered material to each legal

theory advanced on appeal.'" City of Pittsfield v. E.P.A., 614

F.3d 7, 12 (1st Cir. 2010) (quoting Conto v. Concord Hosp., Inc.,

265 F.3d 79, 81 (1st Cir. 2001)). Accordingly, we deem the

argument waived. See United States v. Candelaria-Silva, 162 F.3d

698, 707-08 (1st Cir. 1998) (finding argument waived where

appellant "request[ed] that we conduct 'a reading of the entire

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record with care,'" yet failed to spell out pertinent facts in

brief). In any event, substantial evidence supports the BIA's

rejection of his claim. Although the record reveals that some

police officers have mistreated detainees, the record also supports

the conclusion that such individuals were arrested for their

actions, expelled from the police force, or otherwise held

responsible for their misconduct. Accordingly, we affirm the BIA's

decision that Claros is not entitled to relief under the CAT.

III.

For the aforementioned reasons, we deny Claros's petition

for review.

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