FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 2, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
BENJAMIN RODAS-ORELLANA,
Petitioner,
v. Nos. 14-9516 & 14-9548
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ON PETITION FOR REVIEW FROM ORDERS OF
THE BOARD OF IMMIGRATION APPEALS
Catharine A. Davies (Richard M. Lynch, with her on the brief), Bull & Davies, P.C.,
Denver, Colorado, appearing for Petitioner.
Corey L. Farrell, Attorney (Joyce R. Branda, Acting Assistant Attorney General;
Anthony W. Norwood, Senior Litigation Counsel; and Wendy Benner-León, Trial
Attorney, on the brief), United States Department of Justice, Washington D.C., for
Respondent.
Before BRISCOE, MATHESON, and MURPHY, Circuit Judges.
MATHESON, Circuit Judge.
Benjamin Rodas-Orellana entered the United States without inspection to escape
gang recruitment in El Salvador. The Department of Homeland Security (“DHS”)
initiated removal proceedings. Mr. Rodas-Orellana applied for asylum and withholding
of removal under the Immigration and Nationality Act (“INA”).1
The Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”)
denied his application because he failed to show a well-founded fear of persecution on
account of membership in a particular social group. They concluded his proposed social
group—Salvadorans who resist gang recruitment2—lacked “social visibility” and thus did
not constitute a particular social group. They also concluded he had failed to show he
was persecuted because of his membership in the proposed social group.
After the BIA issued its final order of removal in this case, it issued decisions in
two other cases that modified the social visibility requirement to be one of “social
distinction.” See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 227 (BIA 2014); Matter of
W-G-R-, 26 I. & N. Dec. 208, 208 (BIA 2014). In light of these decisions, Mr. Rodas-
1
Before the Immigration Judge (“IJ”) and the Board of Immigration Appeals
(“BIA”), Mr. Rodas-Orellana also sought withholding of removal under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec.
10, 1984, 1465 U.N.T.S. 85, which the IJ and the BIA denied. But he has abandoned this
issue in his petition for review (“PFR”). We therefore do not consider it here. See Tran
v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised
in the opening brief are deemed abandoned or waived.” (quotations omitted)).
2
As we explain below, Mr. Rodas-Orellana’s proposed social group changed
throughout the proceedings. The IJ and BIA considered the group of those “in opposition
to joining or becoming a gang member in El Salvador,” AR at 132, and “[p]ersons who
have been subjected to recruitment efforts by criminal gangs, but who have refused to
join,” id. at 26.
-2-
Orellana filed a motion to reconsider (mislabeled as a motion to reopen),3 which the BIA
denied.
In his petition for review (“PFR”), Mr. Rodas-Orellana contests both the final
order of removal and the denial of his motion to reconsider. Exercising our jurisdiction
to review the final order of removal and the denial of a motion to reconsider under 8
U.S.C. § 1252(a)(1), (b)(6), (b)(9), we deny his PFR. See Infanzon v. Ashcroft, 386 F.3d
1359, 1361-62 (10th Cir. 2004); see also Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.
1997) (concluding “that other recent changes to the INA did not alter our traditional
understanding that the denial of a motion to reconsider or to reopen generally does fall
within our jurisdiction over final orders of deportation”).
I. BACKGROUND
A. Legal Background
This case concerns two ways a noncitizen who has entered the United States
without inspection can remain: asylum and withholding of removal under the INA.
To qualify for asylum, the applicant must be a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). A refugee is unable or unwilling to return to his or her country because
of “persecution or a well-founded fear of persecution on account of race, religion,
3
The parties refer to this motion as a motion to reopen, but the BIA correctly
characterized it as a motion to reconsider. “[A] change in case law is not considered new
evidence for purposes of a motion to reopen. It is a motion for reconsideration, as
opposed to a motion to reopen, that asks the agency to consider a change in the law.”
Salim v. Holder, 728 F.3d 718, 721 (7th Cir. 2013) (citation and quotations omitted); see
Wei v. Mukasey, 545 F.3d 1248, 1252-54 (10th Cir. 2008). This distinction, however,
does not matter for the purposes of our analysis on the merits. But we refer to the motion
as a motion to reconsider in this opinion for the sake of accuracy.
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nationality, membership in a particular social group, or political opinion.” Id.
§ 1101(a)(42). These five categories are called “protected grounds.” See Dallakoti v.
Holder, 619 F.3d 1264, 1266-67 (10th Cir. 2010). An applicant can obtain refugee
status: (1) “through evidence of a well-founded fear of future persecution” on account of
a protected ground; (2) “through a showing of past persecution” on account of a protected
ground, which gives rise to a rebuttable presumption of having a well-founded fear of
future persecution on account of a protected ground; or (3) “through a showing of past
persecution so severe as to provide a compelling argument against removal, even though
there is no danger of future persecution on the basis of a protected ground.” Rivera-
Barrientos v. Holder, 666 F.3d 641, 646 (10th Cir. 2012).
As for withholding of removal, the INA prohibits removal “if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
The applicant must establish eligibility for asylum and withholding of removal.
Id. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C). The burden of proof for withholding of removal
is higher than for asylum. Dallakoti, 619 F.3d at 1267. For asylum, a noncitizen must
prove he or she is a refugee, which requires a showing of past persecution or a well-
founded fear of persecution on account of a protected ground. Rivera-Barrientos, 666
F.3d at 645. To show a well-founded fear, an applicant must at least show that
persecution is a “reasonable possibility.” INS v. Cardoza-Fonseca, 480 U.S. 421, 440
(1987) (quotations omitted). For withholding, an applicant must prove a “clear
-4-
probability of persecution” on account of a protected ground. Karki v. Holder, 715 F.3d
792, 801 (10th Cir. 2013) (quotations omitted). Failure to meet the burden of proof for
an asylum claim necessarily forecloses meeting the burden for a withholding claim. Id.
B. Factual & Procedural History
1. Mr. Rodas-Orellana’s Application for Asylum and Withholding
Mr. Rodas-Orellana is a citizen of El Salvador. He entered the United States
without inspection on or around September 6, 2006, when he was 17 years old. On
September 16, 2006, DHS commenced removal proceedings, charging Mr. Rodas-
Orellana with removability for being a noncitizen present in the United States without
being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).
On August 28, 2007, Mr. Rodas-Orellana appeared before an IJ and conceded the
charge of removability. He applied, however, for asylum and withholding of removal,
indicating he sought to escape from “extreme poverty and gang violence” in El Salvador.
AR at 339.4 Mr. Rodas-Orellana specifically contended the Mara Salvatrucha gang
(“MS-13”) posed a threat to him because he refused to join. He argued this constituted
past persecution or a well-founded fear of persecution on account of membership in a
particular social group.5
4
AR refers to the agency record for Case No. 14-9548 (Mr. Rodas-Orellana’s PFR
of his motion to reconsider), which includes all the documents contained in the agency
record for Case No. 14-9516 (Mr. Rodas-Orellana’s PFR of his final order of removal)
and additional documents.
5
Mr. Rodas-Orellana also claimed persecution based on political opinion, a claim
he abandoned at some point in the proceedings. It is therefore not at issue on appeal.
-5-
In his application materials and in testimony before the IJ, Mr. Rodas-Orellana
described the pressure he faced to join MS-13. When he was 15 years old, MS-13 asked
him to join for the first time. MS-13 members told him that if he did not join, he would
have to pay a fine. And if he did not have the money, he would have to “pay with [his]
life.” Id. at 321. When he was 16 years old, MS-13 members stopped him while he was
walking home. They asked him to join the gang. When he refused, they beat him and
left him bleeding from his face. In another encounter, gang members again told him to
join, but he refused. They said he should think about what he was doing. And in a final
encounter, gang members told him that if he joined, they would protect him and give him
money. He again refused.
During his testimony before the IJ, Mr. Rodas-Orellana said, “They hit me once
but that was it. And they would ask me to join whatever they were doing.” Id. at 114.
He explained MS-13 members “asked me to give them money and I didn’t want to.” Id.
at 115; see also id. at 127 (“Q. Okay. And why did they hit you? A. Because they asked
me for money and I didn’t have any.”). When asked if he was hurt “very badly,” Mr.
Rodas-Orellana responded, “Yes, they . . . hit me. I went to the hospital but it wasn’t that
bad.” Id. at 115.
Mr. Rodas-Orellana stated he was afraid to return to El Salvador because the
gangs “think that one come[s] to the United States to make money so that I would have
money and they would want to get my money and they would kill me for that.” Id. at
120. When asked where he got this idea, he replied, “Because to many people that has
happened, people that come from the United States, they try to do anything or kill you for
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your money.” Id. at 122. The following exchange between Mr. Rodas-Orellana and his
attorney then ensued:
Q. Okay. So if [the gang] came, why would they want to take money from
you?
A. Because that’s their job, cheating people.
Q. So would they essentially be stealing the money from you?
A. No, they just come and say give me the money or you’re going to die.
Q. But they do that to all kinds of people in El Salvador, right?
A. Yes, like for instance, for a store or something, they get there and they
set a rent, something that has to be paid monthly.
Q. Okay. And so these people, these gang members, they’re criminals,
right?
A. Yes.
Id. at 126. Mr. Rodas-Orellana also noted gang members killed his brother-in-law
because he failed to pay timely “rent,” which is “essentially the payment of extortion or
protection money to the gang members.” Id. at 79, 322.
2. The IJ’s Decision
On June 28, 2012, the IJ denied Mr. Rodas-Orellana’s application for asylum and
withholding of removal. First, the IJ concluded Mr. Rodas-Orellana did not “establish[]
past persecution although he has suffered somewhat in the hands of the gang members.”
Id. at 77. According to Mr. Rodas-Orellana himself, his injury “wasn’t bad,” id. at 78,
and his other two interactions with gang members seemed to the IJ to be “very minor
episodes,” id. Second, the IJ determined Mr. Rodas-Orellana had “not establish[ed] a
connection between the harm that he faces in El Salvador and one of the protected
grounds.” Id. at 80. The IJ noted Mr. Rodas-Orellana had “not identified any reason for
him to be targeted by the gang members other than their general desire to have the
population in their area cooperate with [them] either by providing financial support or by
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joining the rank.” Id. at 79. Further, Mr. Rodas-Orellana’s claim failed because “El
Salvadoran youth who have been subject to recruitment efforts by the gangs and [have]
rejected or resisted membership[] do not constitute a ‘particular social group.’” Id.
3. The BIA’s January 22, 2014 Final Order of Removal
Mr. Rodas-Orellana filed an appeal with the BIA, which it rejected in a final order
of removal. The BIA agreed with the IJ that “[p]ersons who have been subjected to
recruitment efforts by criminal gangs, but who have refused to join fails the particularity
and social visibility tests and does not constitute a particular social group for asylum
purposes.” Id. at 26. The BIA also found “imputed or perceived American nationality”
or “people who appear to be of American nationality or perceived to be wealthy” did not
constitute a particular social group. Id.6 Further, it found Mr. Rodas-Orellana had “failed
to establish that the attempts to recruit him were even partially motivated by a desire to
persecute him for a ground enumerated in the Act—much less that such a motivation
constituted or would constitute ‘one central reason’ for the gang members’ actions.” Id.
The BIA declined to “determine whether the actions taken against [Mr. Rodas-Orellana]
rose to the level of past persecution.” Id.
6
As we explain below, Mr. Rodas-Orellana shifted his proposed social group
throughout the proceedings. By addressing “imputed or perceived American nationality”
and “people who appear to be of American nationality or perceived to be wealthy,” the
BIA was responding to a proposed social group in Mr. Rodas-Orellana’s appeal to the
BIA. AR at 26.
-8-
4. The BIA’s May 1, 2014 Denial of the Motion to Reconsider
On March 11, 2014, Mr. Rodas-Orellana filed a motion to reconsider in light of
two BIA decisions, Matter of M-E-V-G- and Matter of W-G-R-, issued after the BIA’s
January 22 final order of removal. He argued these decisions announced “new legal
standards” that the IJ and BIA ought to consider. Id. at 18. In a May 1, 2014 decision
denying the motion, the BIA held “imputed or perceived American nationality is not a
characteristic that is fundamental to a person’s identity such that it cannot be or should
not be required to be changed.” Id. at 3 (quotations omitted). It noted Matter of M-E-V-
G- and Matter of W-G-R- did not alter this conclusion.7
5. Consolidated PFR
On June 13, 2014, Mr. Rodas-Orellana filed a joint motion to consolidate his PFRs
from the two BIA decisions, which this court granted. In his consolidated PFR, Mr.
Rodas-Orellana seeks judicial review of the January 22 final order of removal and the
May 1 denial of his motion to reconsider.
7
Some explanation is needed as to the timeliness of Mr. Rodas-Orellana’s motion.
Motions to reconsider must be filed within 30 days of a final order of removal. 8 U.S.C.
§ 1229a(c)(6)(B). His motion was not filed within this time period, and he could have
filed within 30 days because Matter of M-E-V-G- and Matter of W-G-R- were decided on
February 7, 2014. See Matter of M-E-V-G-, 26 I. & N. Dec. at 227; Matter of W-G-R-, 26
I. & N. Dec. at 208. We do not think this affects our consideration of the BIA’s denial of
the motion to reconsider on the merits because the BIA did not raise timeliness in its
denial of the motion and it can afford sua sponte consideration at any time, as it did here.
AR at 3 (“We will afford sua sponte consideration to the motion.”); see 8 C.F.R. §
1003.2(a) (“The Board may at any time reopen or reconsider on its own motion any case
in which it has rendered a decision.”).
-9-
II. DISCUSSION
After identifying the standard of review, we analyze both the BIA’s January 22
final order of removal and its May 1 denial of the motion to reconsider. In discussing the
final order of removal, we consider the following questions: (1) Did the BIA err in
determining Mr. Rodas-Orellana was not a member of a particular social group? And do
recent BIA decisions warrant a remand on this issue? (2) Did the BIA err in determining
Mr. Rodas-Orellana was not persecuted on account of his membership in a particular
social group? Because we conclude the BIA did not err on these issues nor in denying
the motion to reconsider, we deny Mr. Rodas-Orellana’s PFR.8
8
Mr. Rodas-Orellana also claims the IJ erred in deciding he did not suffer past
persecution. We decline to review this issue.
The scope of our review depends on the form of the BIA decision. Sidabutar v.
Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007). The BIA may adjudicate a noncitizen’s
claims in three ways: “(1) a decision by a three-member panel with a full explanatory
opinion; (2) a summary affirmance by a single member of the Board without opinion; or
(3) a decision via a brief order by a single member of the Board, affirming, modifying, or
remanding the IJ’s decision.” Id. (citations omitted). The January 22 BIA decision falls
within the third category. We consult the IJ’s opinion only “to the extent that the BIA
relied upon or incorporated it.” Id. (quotations omitted). We can affirm the BIA order
only on grounds addressed by the BIA. Id. And “[w]hen the BIA has failed to address a
ground that appears to have substance, we should not reverse on that ground, but instead
remand.” Rivera-Barrientos, 666 F.3d at 645.
Here, the BIA explicitly declined to determine whether the actions taken against
Mr. Rodas-Orellana rose to the level of past persecution. Instead, it denied the appeal for
failure to establish membership in a particular social group and failure to establish a
nexus between the alleged harm and a protected ground. We therefore cannot affirm on
the issue of past persecution. We also will not remand on this point because, even if Mr.
Rodas-Orellana could demonstrate past persecution, he has not shown any such
persecution occurred on account of a protected ground, as we discuss below.
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A. Standard of Review
On an asylum claim, “[w]e review the BIA’s findings of fact under a substantial-
evidence standard. Under this standard, the BIA’s findings of fact are conclusive unless
the record demonstrates that any reasonable adjudicator would be compelled to conclude
to the contrary.” Rivera-Barrientos, 666 F.3d at 645 (alteration omitted) (citation and
quotations omitted). “[W]e review the BIA’s legal decisions de novo,” but we defer to
the BIA’s interpretation of ambiguous provisions of the INA, and must accept the BIA’s
interpretation if it is reasonable. Id. “The BIA’s determination that [an applicant] was
not eligible for asylum must be upheld if 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) (quotations omitted).
We review the BIA’s decision on a motion to reconsider for an abuse of
discretion. See Belay-Gebru v. I.N.S., 327 F.3d 998, 1000 n.5 (10th Cir. 2003). “The
BIA abuses its discretion when its decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or contains only summary
or conclusory statements.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013)
(quotations omitted). There is no abuse of discretion when the BIA’s “rationale is clear,
there is no departure from established policies, and its statements are a correct
interpretation of the law, even when the BIA’s decision is succinct.” Id. (quotations
omitted).
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B. January 22 Final Order of Removal
1. Membership in a Particular Social Group
a. Legal background
Congress did not define the term “particular social group” in the INA. We
therefore owe deference to the BIA’s interpretation of that phrase, provided the
interpretation is reasonable. See Rivera-Barrientos, 666 F.3d at 645. In Matter of
Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), the BIA interpreted “particular social
group” to mean “a group of persons all of whom share a common, immutable
characteristic . . . such as sex, color, or kinship ties.” The common characteristic must be
“beyond the power of an individual to change or that is so fundamental to his identity or
conscience that it ought not to be required to be changed.” Id. at 234. In recent years, the
BIA has refined its definition of “particular social group,” and now additionally requires
“particularity” and “social visibility.” Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69,
76 (BIA 2007); Matter of C-A-, 23 I. & N. Dec. 951, 959 (BIA 2006). “Particularity”
means the group cannot be “indeterminate . . . too subjective, inchoate, and variable.”
Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. at 76. The meaning of “social visibility”
has evolved over time.
The BIA initially defined “social visibility” to mean “the recognizability” of the
group in question. Matter of C-A-, 23 I. & N. Dec. at 959. BIA decisions identified
socially visible groups in circumstances where, for example, certain characteristics made
a group “highly visible” and “generally easily recognizable and understood by others to
constitute social groups.” Id.; see id. at 955 (noting the BIA has recognized particular
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social groups in a number of cases, including those involving “Filipinos of mixed
Filipino-Chinese ancestry,” “young women of the Tchamba-Kunsuntu tribe of northern
Togo who did not undergo female genital mutilation as practiced by that tribe and who
opposed the practice,” and “former members of the national police of El Salvador”).
Recently, the BIA renamed the “social visibility” requirement to be “social
distinction.” Matter of M-E-V-G-, 26 I. & N. Dec. at 228, 234-38, 240-43, 247; Matter of
W-G-R-, 26 I. & N. Dec. at 208, 211-12, 215-18. In those decisions, the BIA clarified
“social visibility” was never intended to mean that a social group must be “ocularly
visible to others in society.” Matter of W-G-R-, 26 I. & N. Dec. at 216 (quotations
omitted). “[A] group need not be seen by society; it must instead be perceived as a group
by society. Members of the group may be visibly recognizable, but society can also
consider persons to be a group without being able to identify the members by sight.” Id.
(citations omitted).
Even before Matter of M-E-V-G- and Matter of W-G-R-, this court in Rivera-
Barrientos declined to interpret “social visibility” literally, finding “no need to interpret
social visibility as demanding the relevant trait be visually or otherwise easily identified.”
666 F.3d at 652. “Rather, social visibility requires that the relevant trait be potentially
identifiable by members of the community, either because it is evident or because the
information defining the characteristic is publicly accessible.” Id. In determining
whether a group is socially visible, this court noted the BIA considers whether “citizens
of the applicant’s country would consider individuals with the pertinent trait to constitute
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a distinct social group,” and whether “the applicant’s community is capable of identifying
an individual as belonging to the group.” Id. at 650-51.
b. Analysis
We hold Mr. Rodas-Orellana has failed to demonstrate (i) his proposed group—
“El Salvadoran males threatened and actively recruited by gangs, who resist joining
because they oppose the gangs,” Aplt. Br. at 79—is socially distinct,10 or (ii) remand is
warranted in light of Matter of M-E-V-G- and Matter of W-G-R-.
i. Social distinction
Because we conclude below that Matter of M-E-V-G- and Matter of W-G-R- are
consistent with our past interpretation of social visibility, Rivera-Barrientos controls this
case. We held in that case that “women between the ages of 12 and 25 who have resisted
9
We use this description of the social group because it seems to comport most
closely with the facts of this case. Mr. Rodas-Orellana’s brief also describes the group as
“El Salvadoran males who have been actively recruited and threatened by gangs and who
refused to join,” “El Salvadoran males who are recruited and threatened by gangs to join,
but who refuse because of moral opposition to gang activity,” and “El Salvadoran males
who resist gang recruitment and violence.” Aplt. Br. at 10, 22, 24. At oral argument, Mr.
Rodas-Orellana’s counsel narrowed the group by stating only young males compose the
group. See Oral Argument at 9:00-9:54, 16:45-17:24.
10
The parties do not argue immutability on appeal, and the BIA did not rely on
this ground in its January 22 final order of removal to determine Mr. Rodas-Orellana’s
proposed group of Salvadoran males who resist gang recruitment was not a particular
social group.
As for particularity, the BIA denied Mr. Rodas-Orellana’s appeal in part because
his alleged social group of Salvadoran males who resist gang recruitment failed the
particularity test. Although Mr. Rodas-Orellana’s briefing on particularity leaves much
to be desired, he does seem to contest the BIA’s particularity determination by
analogizing Rivera-Barrientos to this case. In Rivera-Barrientos, we held that a similar
proposed group met the particularity requirement. See 666 F.3d at 650. Regardless, we
decline to address particularity here because our social distinction ruling is dispositive.
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gang recruitment” in El Salvador were not a particular social group because this cohort
failed the social visibility requirement. Rivera-Barrientos, 666 F.3d at 653-54. Even
though MS-13 targeted her for resisting recruitment, Ms. Rivera-Barrientos failed to offer
evidence that Salvadoran society considers young women who have resisted gang
recruitment to be a distinct social group. Id. at 653.
Rivera-Barrientos relied on the BIA decision of Matter of S-E-G-, 24 I. & N. Dec.
579, 579, 588 (BIA 2008), which held Salvadoran youth who had been subjected to MS-
13 recruitment efforts and who rejected membership did not constitute a particular social
group. The BIA decided the proposed group lacked social visibility because there was
little in the record “to indicate that Salvadoran youth who are recruited by gangs but
refuse to join (or their family members) would be ‘perceived as a group’ by society, or
that these individuals suffer from a higher incidence of crime than the rest of the
population.” Id. at 587. The BIA did not doubt that gangs retaliate against those who
refuse to join. Id. “However, such gangs have directed harm against anyone and
everyone perceived to have interfered with, or who might present a threat to, their
criminal enterprises and territorial power.” Id. “The respondents are therefore not in a
substantially different situation from anyone who has crossed the gang, or who is
perceived to be a threat to the gang’s interests.” Id.
Other circuits have agreed. See Umana-Ramos v. Holder, 724 F.3d 667, 674 (6th
Cir. 2013) (holding “young Salvadorans who have refused recruitment by the MS gang”
was not a socially visible group because there was no evidence they were perceived as a
distinct segment of the population); Gaitan v. Holder, 671 F.3d 678, 682 (8th Cir. 2012)
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(holding “young males from El Salvador who have been subjected to recruitment by MS-
13 and who have rejected or resisted membership in the gang” was not a particular social
group because they did not “cover a discrete class of persons who would be perceived as
a group by the rest of society”); Orellana-Monson v. Holder, 685 F.3d 511, 516, 522
(5th Cir. 2012) (holding “Salvadoran males, ages 8 to 15, who have been recruited by
Mara 18 but who have refused to join” lacked social visibility because there was little
evidence these people would be perceived as a group by society).
Here, Mr. Rodas-Orellana’s claim is based on the same or a substantially similar
group that was proposed and rejected in Rivera-Barrientos, Matter of S-E-G-, and several
other circuit court decisions. As in those cases, Mr. Rodas-Orellana does not present
evidence suggesting Salvadorans (including the gangs) perceive individuals who resist
gang recruitment as a distinct social group.
Instead, Mr. Rodas-Orellana contends he has identified a particular social group
because gangs targeted him for refusing to join. The evidence did show he was
threatened and hurt for refusing to join. See, e.g., AR at 123 (“The maras will come and
ask me to join them. And if you’re in one side or the other side and if I don’t join either
one, they will kill me.”); id. at 215 (“He reports that, when he was 16 years old, he was
stopped by the gang and again pressured to join. He again refused and this time was
assaulted.”). But this does not establish that he belongs to a distinct social group. The
evidence instead depicts a widespread gang violence problem in El Salvador. See, e.g.,
Rivera-Barrientos, 666 F.3d at 653; Matter of S-E-G-, 24 I. & N. Dec. at 587; AR at 311
(“Violent, organized gangs are a major factor in the crime situation and are often behind
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extortion attempts.”); id. at 326-34 (describing gang presence and gang activities in El
Salvador in a Department of State Issue Paper). Thus, although gang members may have
targeted Mr. Rodas-Orellana for resisting recruitment, this reflects generalized gang
violence toward anyone resisting their efforts rather than defining a distinct social group.
See Matter of S-E-G-, 24 I. & N. Dec. at 587; see also Ramos-Lopez v. Holder, 563 F.3d
855, 862 (9th Cir. 2009) (“While MS-13 members may be able to identify those who
have resisted recruitment, it is not because the group, as a group, is visible; rather, MS-13
members appear to keep tabs on individuals who have refused to join.”).
Indeed, the record shows Salvadoran gangs indiscriminately threaten people for
monetary gain or for opposing them. See, e.g., AR at 115 (“Q. So how did it happen that
they beat you up? A. Because I was home sitting there and they went by and asked me to
give them money and I didn’t want to so that’s why.”); id. at 117 (“Q. Was that the only
time [the beating] happened? A. Yes, but to other people, if they oppose to them, it
always happens.”); id. at 126 (“Q. But they [threaten] all kinds of people in El Salvador,
right? A. Yes, like for instance, for a store or something, they get there and they set a
rent, something that has to be paid monthly.”). A pertinent Department of State Issue
Paper, which Mr. Rodas-Orellana submitted in support of his asylum and withholding
application, stops short of finding that Salvadoran males who refuse recruitment are
persecuted for that status:
There have been allegations by some asylum applicants that gangs search
throughout the country to find persons who have refused to join them and
then take out reprisals against those individuals. Gangs may threaten or
reportedly occasionally even assault someone who refuses offers to join the
gang. In general, however, most people are able to avoid joining a gang
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and can continue their normal activities. While local gang members might
retaliate against someone in the gang’s immediate zone of activity, based
on the amount of effort involved, it would be unlikely for the gang to track
down a person who refused recruitment into the gang in another part of the
country, unless that person had done something that threatened the gang’s
operations.
Id. at 331.
Mr. Rodas-Orellana has failed to demonstrate his proposed social group is socially
distinct.
ii. Remand in light of Matter of M-E-V-G- and Matter of W-G-R-11
Mr. Rodas-Orellana argues we should remand the January 22 final order of
removal in light of Matter of M-E-V-G- and Matter of W-G-R-. Aplt. Br. at 6, 30-31. We
reject this argument.12
11
As previously explained, we have jurisdiction to review both a final order of
removal and a denial of a motion to reconsider. See Infanzon, 386 F.3d at 1361
(suggesting this court could review both the BIA final order of removal and the BIA
order denying the motion to reopen had the petitioner timely filed a PFR from the final
order of removal). Mr. Rodas-Orellana relies on Matter of M-E-V-G- and Matter of W-G-
R- to argue that we should remand because the BIA erred in its January 22 and May 1
orders. Our discussion here shows why Matter of M-E-V-G- and Matter of W-G-R- do
not warrant remand on either order.
12
If we were to consider only the case law existing at the time of the final order of
removal, remand would be unwarranted because Rivera-Barrientos and Matter of S-E-G-
did not rely on ocular visibility. See Rivera-Barrientos, 666 F.3d at 652; Matter of M-E-
V-G-, 26 I. & N. Dec. at 247 (noting it would reach the same result in Matter of S-E-G- if
the BIA had applied the term “social distinction” rather than “social visibility”). But may
we consider BIA decisions that were issued after the final order of removal? Other
circuits have permitted consideration of BIA decisions issued after a final order of
removal. See, e.g., Pirir-Boc v. Holder, 750 F.3d 1077, 1079 (9th Cir. 2014); Paloka v.
Holder, 762 F.3d 191, 192-93 (2d Cir. 2014). We do the same here and conclude that
remand is not warranted.
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First, Mr. Rodas-Orellana has not explained how those decisions, which merely
clarified the interpretation of “social visibility,” would alter the BIA’s decision on
remand. In holding Mr. Rodas-Orellana’s group failed the social visibility requirement,
the BIA did not rely on ocular visibility. See Nazaraghaie v. I.N.S., 102 F.3d 460, 465
(10th Cir. 1996) (“[E]ven assuming arguendo that the BIA failed to weigh certain pieces
of evidence fully, the result in this case would be no different. Any error on the part of
the BIA is therefore harmless . . . .”); see also Mendiola v. Holder, 576 F. App’x 828,
830-31, 842-43 (10th Cir. 2014) (unpublished) (rejecting a noncitizen’s change-of-law
argument based on a Supreme Court decision issued after his final order of removal
because the case did not affect whether he was removable).13
Second, Mr. Rodas-Orellana argues that because the BIA in Matter of M-E-V-G-
remanded to the IJ, we should remand this case to the BIA. We disagree. The BIA
explained in Matter of M-E-V-G- why it was remanding to the IJ: “[T]he respondent’s
proposed particular social group has evolved during the pendency of his appeal, our
guidance on particular social group claims has been clarified since this case was last
before the Immigration Judge, and the Third Circuit has indicated that a remand may be
appropriate.” Matter of M-E-V-G, 26 I. & N. Dec. at 252. No similar bases to remand
apply here. Although, as explained below, Mr. Rodas-Orellana changed his proposed
13
Unpublished opinions lack precedential value but may be cited for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
- 19 -
social group during these proceedings, the changes do not warrant a remand.14 Further,
the BIA analyzed social visibility consistently with Matter of M-E-V-G-, Matter of W-G-
R-, Matter of S-E-G-, and Rivera-Barrientos because it did not rely on ocular visibility.15
Finally, our research shows that two circuits have remanded final orders of
removal in part because of Matter of M-E-V-G- and Matter of W-G-R-. These other
circuit cases, however, do not help Mr. Rodas-Orellana. The Ninth Circuit remanded in
Pirir-Boc v. Holder, 750 F.3d 1077, 1079-81 (9th Cir. 2014), because the BIA relied on
Matter of S-E-G- to determine that individuals “taking concrete steps to oppose gang
membership and gang authority” in Guatemala did not constitute a particular social
group. In remanding, the Ninth Circuit first noted “the BIA may not reject a group solely
because it had previously found a similar group in a different society to lack social
distinction or particularity.” Id. at 1084. Second, it faulted the BIA for failing to perform
14
Matter of M-E-V-G- was the product of two remands from the Third Circuit.
See Matter of M-E-V-G-, 26 I. & N. Dec. at 228-29. In the first remand, the court
“materially change[d]” the definition of the noncitizen’s proposed social group. Id. at
252 n.17. The BIA remanded to the IJ in Matter of M-E-V-G- to reconsider a final order
of removal in light of this different group. Id. We are not faced with the same scenario
here.
15
In addition to remanding for the reason articulated in footnote 14, the BIA
remanded to the IJ in Matter of M-E-V-G- because of the Third Circuit’s second remand.
See Matter of M-E-V-G-, 26 I. & N. Dec. at 252. The Third Circuit had remanded a
second time because it refused to afford deference to the BIA’s requirement of social
visibility. Valdiviezo-Galdamez v. Att’y Gen. of the United States, 663 F.3d 582, 603 (3d
Cir. 2011). It thought the BIA required “on-sight visibility” for “social visibility,” and
then determined that such a requirement conflicted with prior BIA decisions recognizing
social groups that lacked “on-sight visibility.” Id. at 604-07. No such conflict arises here
because neither this court nor the IJ or BIA in this case has interpreted social visibility to
require ocular visibility, distinguishing this case from Matter of M-E-V-G-. See Rivera-
Barrientos, 666 F.3d at 652.
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“the required evidence-based inquiry as to whether the relevant society recognizes [the
petitioner’s] proposed social group.” Id. This failure was especially problematic when
there was evidence the group may in fact be recognized in Guatemalan society. Id. As
such, it was unclear whether the evidence presented was sufficient to meet the standard in
Matter of M-E-V-G- and Matter of W-G-R-. Id. Finally, the court remanded to consider
the group in light of a Ninth Circuit case holding that witnesses who testified against
gang members constituted a particular social group—a group the Pirir-Boc court
characterized as “comparable” to the one at issue. Id. at 1082, 1084-85.
Our case is distinguishable. First, unlike in Pirir-Boc, Mr. Rodas-Orellana argues
for nearly the same proposed group, from the same country, as was rejected in Matter of
S-E-G-. His proposed group is not “comparable” to any this court or any other court has
found to constitute a particular social group. Second, the IJ in Pirir-Boc found evidence
in the record indicating the proposed group was socially distinct. No such evidence
exists here. Third, although the Ninth Circuit remanded in part to determine whether the
evidence presented was sufficient to meet the revised standard in Matter of M-E-V-G-
and Matter of W-G-R-, there is no evidence of social distinction here that would need to
be reconsidered in light of these recent BIA decisions.
The Second Circuit in Paloka v. Holder, 762 F.3d 191, 194, 199 (2d Cir. 2014),
remanded in light of Matter of M-E-V-G- and Matter of W-G-R- to determine whether
unmarried, young women in Albania between 15 and 25 years old constituted a particular
social group. It did so, first, because it found “remand is appropriate in this case
following the agency’s clarification of its approach” on adjudicating “particular social
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group” claims. Id. at 197. Second, because there was evidence the petitioner faced
persecution by Albanian police, id. at 193, the Second Circuit found the petitioner’s case
“straddle[d] the line between individuals threatened by state-sponsored or state-condoned
criminality on account of their membership in a particular social group and individuals
threatened only because they live in a country with pervasive criminality,” id. at 198.
Finally, the petitioner redefined her particular social group during her appeal to include
an age range “that finds support in the evidence.” Id. at 199.
Here, by contrast, Mr. Rodas-Orellana presents no evidence the Salvadoran
government had a role in his alleged persecution. Further, although he refined the
definition of his group in his PFR by specifying Salvadoran males who resisted gang
recruitment, he fails to point to any evidence indicating that such a narrowing lends more
support to his argument for social distinction.
In sum, Mr. Rodas-Orellana has failed to demonstrate he is a member of a
particular social group, and remand in light of the recent BIA decisions is not warranted
because the BIA did not rely on ocular visibility in denying relief in this case. And, as
we discuss below, even assuming he is a member of a particular social group, Mr. Rodas-
Orellana has not shown his membership was a central reason for MS-13’s threats and
violence against him.
2. Persecution on Account of Membership in a Particular Social Group
a. Legal background
The INA requires that persecution occur “on account of” a protected ground.
8 U.S.C. § 1101(a)(42). A protected ground must be “at least one central reason for
- 22 -
persecuting the applicant.” Id. § 1158(b)(1)(B)(i). The Supreme Court has noted the
INA “makes motive critical” to obtaining asylum. Elias-Zacarias, 502 U.S. at 483; see
also id. at 483 (holding the petitioner failed to establish that “guerillas will persecute him
because of [his] political opinion, rather than because of his refusal to fight with them”).
We similarly have said, “[T]he victim’s protected characteristic must be central to the
persecutor’s decision to act against the victim.” Rivera-Barrientos, 666 F.3d at 646
(quotations omitted); see also Dallakoti, 619 F.3d at 1268 (interpreting “one central
reason” to mean “the protected ground cannot play a minor role in the alien’s past
mistreatment or fears of future mistreatment” and “cannot be incidental, tangential,
superficial, or subordinate to another reason for harm” (quotations omitted)).
b. Analysis
Although MS-13 threatened and assaulted him for resisting recruitment, Mr.
Rodas-Orellana has failed to establish that his membership in a particular social group
was a central reason for MS-13’s actions. His testimony suggests only that the gang
wanted to take his money or have him join the gang. When he refused, the gang reacted
not to his membership in a particular group but to his refusal to pay or join. And no
evidence indicates Mr. Rodas-Orellana would be subject to future harm based on his
membership in the group.
In Rivera-Barrientos, the noncitizen presented evidence that MS-13 had targeted
her for resisting recruitment, but we “distinguish[ed] between persecution based on social
status, and an individualized reaction to the applicant based on her threat to the gang’s
interests.” 666 F.3d at 653. Because the evidence in that case suggested “gang violence
- 23 -
is widespread in El Salvador, and that [the gang] directs harm against any individual
where doing so may promote the gang’s interests,” those who resist recruitment are “not
in a substantially different situation from anyone who has crossed the gang, or who is
perceived to be a threat to the gang’s interests.” Id.; see Matter of S-E-G-, 24 I. & N.
Dec. at 587-88 (noting the Department of State’s report on El Salvador did not “mention
forced recruitment by gang members or persecution against individuals who resist the
gang, and the respondents have not submitted evidence that persuades us that gangs
commit violent acts for reasons other than gaining more influence and power, and
recruiting young males to fill their ranks”); Matter of E-A-G-, 24 I. & N. Dec. 591, 594
(BIA 2008) (“[I]ndividuals who resist gang recruitment may face the risk of harm from
the rejected gang. But such a risk would arise from the individualized reaction of the
gang to the specific behavior of the prospective recruit.”).
For these reasons, Mr. Rodas-Orellana has not established he was threatened or
harmed on account of his membership in a particular social group.
C. May 1 Denial of the Motion to Reconsider
Mr. Rodas-Orellana moved for the BIA to reconsider its final order of removal in
light of the BIA’s subsequent decisions in Matter of M-E-V-G- and Matter of W-G-R-.
We reject his PFR from the denial of his motion. As background, we provide a brief
summary of how Mr. Rodas-Orellana’s proposed social group has changed in these
proceedings.
At each step, Mr. Rodas-Orellana has offered different proposed social groups.
Before the IJ, Mr. Rodas-Orellana claimed his social group consisted of those “in
- 24 -
opposition to joining or becoming a gang member in El Salvador.” AR at 132. But, as
the Government points out, in his appeal to the BIA, Mr. Rodas-Orellana explicitly
claimed his social group consisted of those perceived as coming to El Salvador from the
United States and having money. Nonetheless, he might also have implicitly raised the
Salvadoran males group because he appealed the IJ’s determination on his past
persecution, which could not have been based on the coming-from-America-with-money
group given he had not yet been to the United States at the time of the alleged
persecution.16 In any case, the BIA rejected both proposed groups in its January 22 final
order of removal.
In his motion to reconsider, Mr. Rodas-Orellana failed to specify his proposed
social group nor did he explain how Matter of M-E-V-G- and Matter of W-G-R- changed
legal standards in a way that was material to his case. In its May 1 decision denying the
motion, the BIA addressed only the coming-from-America-with-money group. The BIA
rejected the argument that “imputed or perceived American nationality” constituted a
particular social group, and held Matter of M-E-V-G- and Matter of W-G-R- did not alter
this conclusion. Id. at 3 (quotations omitted).
16
When challenged at oral argument on whether Mr. Rodas-Orellana had
presented the Salvadoran males group in his briefing with the BIA, Mr. Rodas-Orellana’s
counsel responded, “I understand what you’re saying, but I do believe that when [the
BIA] looked at the case law, and maybe this was a failure to reiterate what we believed
was inherent to the case, which was the class membership, I think there was an inherent
sense that the class membership had carried through all of the briefs. And then when the
decision came down from the Board of Immigration Appeals, they only addressed . . .
this Americanization.” Oral Argument at 22:30-23:29.
- 25 -
Now, in his PFR before this court, Mr. Rodas-Orellana claims his proposed group
is “El Salvadoran males threatened and actively recruited by gangs, who resist joining
because they oppose the gangs.” Aplt. Br. at 7. And at oral argument, Mr. Rodas-
Orellana’s counsel narrowed the group by stating only young males compose the group.
See Oral Argument at 9:00-9:54, 16:45-17:24.
In denying the motion to reconsider, the BIA addressed only the coming-from-
America-with-money group. That is the only group Mr. Rodas-Orellana explicitly
identified in his appeal brief to the BIA. The BIA said this group failed to meet the
immutability requirement for a particular social group. In his PFR, Mr. Rodas-Orellana
does not challenge this determination. If Mr. Rodas-Orellana presented only this social
group in his appeal to the BIA, his failure to contest the immutability determination
constitutes waiver of his challenge to the denial of his motion to reconsider. See
Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) (“The failure to
raise an issue in an opening brief waives that issue.”).
But even if we interpret his briefing before the BIA as having implicitly raised the
Salvadoran males group, any error on the BIA’s part in failing to consider this group
would have been harmless, as explained above in our analysis of the BIA’s January 22
final order of removal.
III. CONCLUSION
We deny the PFR. Mr. Rodas-Orellana has failed to establish he is a member of a
particular social group or that he was persecuted on account of any such membership.
- 26 -
Matter of M-E-V-G- and Matter of W-G-R- do not alter this analysis. We also deny Mr.
Rodas-Orellana’s challenge to the BIA’s denial of his motion to reconsider.
- 27 -