Ramos-Lopez v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ERIK RAMOS-LOPEZ, 
Petitioner, No. 06-72402
v.
 Agency No.
A098-919-259
ERIC H. HOLDER, JR.,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 11, 2008**
Seattle, Washington
Submission Vacated and Deferred April 28, 2008
Resubmitted March 5, 2009

Filed April 16, 2009

Before: A. Wallace Tashima, M. Margaret McKeown, and
William A. Fletcher, Circuit Judges.

Opinion by Judge Tashima

*Eric H. Holder, Jr., is substituted for his predecessor Michael B.
Mukasey, as Attorney General, pursuant to Fed. R. App. P. 43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

4349
 RAMOS-LOPEZ v. HOLDER 4353

COUNSEL

Juliann Bildhauer, Seattle, Washington, for the petitioner.

Susan M. Harrison, Assistant United States Attorney, Seattle,
Washington, for the respondent.

OPINION

TASHIMA, Circuit Judge:

Petitioner Erik Ramos-Lopez (“Ramos”), a Honduran
national, petitions for review of a Board of Immigration
Appeals’ (“BIA”) order denying asylum and withholding of
removal. An Immigration Judge (“IJ”) credited as true
Ramos’ testimony that he refused recruitment into the Mara
Salvatrucha (“MS-13”), a Central American gang, and that
MS-13 members subsequently threatened to kill him. The dis-
positive issue in this case is whether Ramos suffered or has
a well-founded fear of persecution on account of a particular
social group — young Honduran men who have been
recruited by the MS-13, but who refuse to join — or political
opinion. The BIA recently determined that young Salvadoran
men who have resisted recruitment into the MS-13 do not
constitute a particular social group and that the refusal to join
the MS-13 does not amount to a political opinion. In re S-E-
4354 RAMOS-LOPEZ v. HOLDER
G-, 24 I. & N. Dec. 579, 583, 589 (BIA 2008). Applying the
principles of deference established in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), we defer to the BIA’s decision with respect to social
group and deny the petition.

I.

Ramos was born and raised in Puerto Cortes, Honduras.
Ramos’ problems with the MS-13 began in January 2004,
when he was sixteen years old. During his first encounter with
the MS-13, a gang member approached him and a friend out-
side of Ramos’ home. The MS-13 member told them that “it
was time to join,” took out a gun, and told the boys to come
with him to rob some people. When Ramos and his friend did
not respond or move, the man warned them that if they
“wanted to live, he would be waiting.” Later that year,
another MS-13 member returned to Ramos and his friend and
again delivered the message that “it was time to join.” The
gang member showed the boys his gun and told them that
they could either join the MS-13 or be killed.

In January 2005, Ramos fled to Mexico. He was detained
by Mexican authorities and returned to Honduras the same
month. After Ramos returned to Puerto Cortes, MS-13 mem-
bers threatened to kill him or a member of his family if he
tried to escape from Honduras again. He avoided further
encounters with the MS-13 before fleeing Honduras in May
2005.

Ramos entered the United States on May 16, 2005. On May
17, 2005, he was detained by Border Patrol agents and served
with a Notice to Appear, charging him with removability for
being an alien present in the United States without being
admitted or paroled. Ramos conceded removability and
applied for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”).1 During his
1
Ramos included the following with his asylum application: a personal
declaration, an affidavit from a journalist living in Honduras, a letter writ-
 RAMOS-LOPEZ v. HOLDER 4355
removal hearing, Ramos testified about his three encounters
with MS-13 members in Puerto Cortes.

In response to questioning by the IJ, Ramos also testified
that he did not join the MS-13 because he would have lost
contact with his family, would have been obligated to steal,
and “probably spend most of [his] life in jail.” Of the group
of Ramos’ friends who were recruited by the MS-13, two
joined the gang, one or two were killed, others were hiding in
Honduras, and some fled to the United States. Ramos was
afraid that MS-13 members would kill him, but he never went
to the police for help. Two of Ramos’ brothers, ages nineteen
and twenty, remained in Puerto Cortes. The MS-13 did not
bother the nineteen-year old, but started looking for the
twenty-year old after Ramos fled. Ramos’ twelve-year old
brother lives with his parents, but has not had problems with
the gang because he is too young. A sixteen-year old sister
also lives with Ramos’ parents.

The IJ found Ramos credible, but, even after crediting his
testimony as true, denied asylum, withholding of removal,
and protection under the CAT. The IJ held that Ramos could
not establish eligibility for asylum or withholding because he
did not face persecution on account of his membership in a
cognizable social group or any political opinion. Alterna-
tively, the IJ held that Ramos did not suffer past persecution
or have a well-founded fear of future persecution.2 The IJ fur-
ther denied CAT relief because Ramos did not face a clear
probably of torture in Honduras.

ten by a friend in Honduras, and over one hundred pages of supporting
documents describing gang activity in Honduras and Central America.
2
In support of his decision, the IJ found that the MS-13 members never
physically harmed Ramos or members of his family, Ramos’ family con-
tinued to live in Honduras without incident, and the police were not
unwilling or unable to protect Ramos from the MS-13.
4356 RAMOS-LOPEZ v. HOLDER
The BIA affirmed in a summary disposition. Ramos timely
petitions for review of the denial of asylum and withholding
of removal, but not the denial of CAT relief.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When,
as here, the BIA summarily affirms the IJ’s decision, we
review the IJ’s decision as the final agency action. 8 C.F.R.
§ 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184
(9th Cir. 2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809
(9th Cir. 2004)). We review the IJ’s legal determinations de
novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.
2004).

The IJ’s findings of fact “are conclusive unless any reason-
able adjudicator would be compelled to conclude to the con-
trary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s
findings of fact for substantial evidence. Halaim, 358 F.3d at
1131. Additionally, “[w]e accept [the petitioner’s] testimony
as true when, as here, the IJ found [him] to be credible.” Id.
(citing Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.),
amended by 290 F.3d 964 (9th Cir. 2002)).

III.

[1] Congress vested the Attorney General with the discre-
tion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1)(A).
The INA defines “refugee,” in relevant part, as:

any person who is outside any country of such per-
son’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail him-
self or herself of the protection of, that country
because of persecution or a well-founded fear of per-
secution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.
 RAMOS-LOPEZ v. HOLDER 4357
8 U.S.C. § 1101(a)(42)(A). While asylum is a discretionary
form of relief, the Attorney General must grant withholding
of removal if “the alien’s life or freedom would be threat-
ened” in the country to which he would be removed because
of the alien’s race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). Thus, to be eligible for either form of relief,
the persecution feared must be on account of one of the five
protected grounds. Hanna v. Keisler, 506 F.3d 933, 937 (9th
Cir. 2007) (asylum); Nadarajah v. Gonzales, 443 F.3d 1069,
1081-82 (9th Cir. 2006) (withholding of removal).

A. Particular Social Group

[2] Ramos’ claims for asylum and withholding of removal
are predicated, primarily, on his membership in a particular
social group: young Honduran men who have been recruited
by the MS-13, but who refuse to join. Recently, the BIA
issued a precedential opinion in which it held that Salvadoran
youth who have resisted gang recruitment are not a cogniza-
ble social group under the INA. In re S-E-G-, 24 I. & N. Dec.
at 588.

[3] We have not yet had the occasion to address whether
the BIA’s determination, in a published disposition, that a
group is or is not a “particular social group” is entitled to
Chevron deference. After Marmolejo-Campos, however, our
path is clear.

[4] Generally, “[w]e accord Chevron deference where there
is ‘binding agency precedent on-point (either in the form of
a regulation or a published BIA case).’ ” Renteria-Morales v.
Mukasey, 532 F.3d 949, 954 (9th Cir. 2008) (quoting Kha-
rana v. Gonzales, 487 F.3d 1280, 1283 n.4 (9th Cir. 2007),
overruled on other grounds by Navarro-Lopez v. Gonzales,
503 F.3d 1063 (9th Cir. 2007) (en banc)). Chevron deference
to published BIA decisions is appropriate “as [the BIA] gives
ambiguous statutory terms ‘concrete meaning through a pro-
4358 RAMOS-LOPEZ v. HOLDER
cess of case-by-case adjudication.’ ” Aguirre-Aguirre, 526
U.S. at 425 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,
448 (1987)).

[5] We review de novo the BIA’s interpretation of a statute
other than the INA, but whether an “offense constitutes a
‘crime of moral turpitude’ is governed by the same traditional
principles of administrative deference we apply to the Board’s
interpretation of other ambiguous terms in the INA.”
Marmolejo-Campos, slip op. at 2637. In Marmolejo-Campos,
we explained that “moral turpitude” is an “ambiguous
phrase,” id. at 2634, and noted previous decisions in which
we deferred to the BIA’s construction of “other ambiguous
terms,” including “particularly serious crime,” Miguel-Miguel
v. Gonzales, 500 F.3d 941, 947-48 (9th Cir. 2007), “convic-
tion,” Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.
2001), and “persecution,” Fisher v. INS, 79 F.3d 955, 961 (9th
Cir. 1996) (en banc). Marmolejo-Campos, slip op. at 2636.
Because we defer to precedential BIA decisions that give
meaning to ambiguous terms, we there held that the BIA’s
construction of “moral turpitude” though a process of case-
by-case adjudication is entitled to Chevron deference. Id. at
2637.

[6] “Particular social group,” like “moral turpitude,” is an
amorphous term. The BIA defined the general contours of the
term in In re Acosta as “a group of persons all of whom share
a common, immutable characteristic.” 19 I. & N. Dec. 211,
233 (BIA 1985), overruled on other grounds by In re Mog-
harrabi, 19 I. & N. Dec. 439 (BIA 1987). The BIA has
expanded on this definition by directing courts to further con-
sider a group’s “social visibility” and “particularity.” In re A-
M-E-, 24 I. & N. Dec. 69, 74 (BIA 2007). Nonetheless, the
BIA must still determine in the first instance whether a spe-
cific group is a “particular social group” within the meaning
of the INA. Gonzales v. Thomas, 547 U.S. 183, 185 (2006)
(per curiam). “The matter requires determining the facts and
deciding whether the facts as found fall within a statutory
 RAMOS-LOPEZ v. HOLDER 4359
term.” Id. at 186. Because the BIA’s determination that a cer-
tain group is or is not a “particular social group” is part of its
effort to give an ambiguous statutory term concrete meaning,
we hold that Chevron deference is due.3

[7] Our analysis is two-fold. First, we “ask[ ] whether ‘the
statute is silent or ambiguous with respect to the specific
issue’ before it.” Aguirre-Aguirre, 526 U.S. at 424 (citing
Chevron, 467 U.S. at 843)). If so, we ask “ ‘whether the agen-
cy’s answer is based on a permissible construction of the stat-
ute.’ ” Id. (citing Chevron, 467 U.S. at 843). We will not
overturn an agency decision at the second step “unless it is
‘arbitrary, capricious, or manifestly contrary to the statute.’ ”
Fisher, 79 F.3d at 961 (quoting Romero v. INS, 39 F.3d 977,
980 (9th Cir. 1994)); see also Chevron, 467 U.S. at 844.

[8] Because the INA does not define “particular social
group,” Ochoa v. Gonzales, 406 F.3d 1166, 1170 (9th Cir.
2005), we proceed to the second step. There we conclude that
the BIA’s determination that young Salvadoran men who
have been recruited by gangs, but refuse to join, are not a
“particular social group” is a reasonable interpretation of the
INA.4
3
In so holding, we join the Second and Eleventh Circuits. See Ucelo-
Gomez v. Mukasey, 509 F.3d 70, 72 (2d Cir. 2007) (according Chevron
deference to the BIA’s determination in In re A-M-E- that “affluent Guate-
malans” are not a particular social group); Castillo-Arias v. U.S. Att’y
Gen., 446 F.3d 1190, 1197 (11th Cir. 2006), (according Chevron defer-
ence to the BIA’s determination in In re C-A-, 23 I. & N. Dec. 951 (BIA
2006) that “noncriminal informants who work against the Cali cartel” are
not a particular social group), cert. denied sub nom. Castillo-Arias v. Gon-
zales, 127 S. Ct. 977 (2007).
4
We first had occasion to consider the BIA’s decision in In re S-E-G-
in Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008). We did not
analyze the BIA’s decision under the Chevron framework, noting instead
that the BIA’s decision was “not binding on us.” Id. at 745. We decided
Santos-Lemus, however, before our en banc decision in Marmolejo-
Campos, in which we clarified the method by which we determine the
degree of deference owed to BIA decisions. Marmolejo-Campos, slip op.
at 2631-38. Thus, to the extent Santos-Lemus is inconsistent with
Marmolejo-Campos, the later en banc decision must control.
4360 RAMOS-LOPEZ v. HOLDER
[9] At the outset, we recognize that the relevant BIA opin-
ion specifically addresses resistance to recruitment by the
MS-13 in El Salvador, not Honduras. The BIA, however,
expected its decision to apply to the same group in Honduras.
In re S-E-G-, 24 I. & N. Dec. at 582 (noting that the Third
Circuit, in Valdiviezo-Galdamez v. Att’y Gen. of the U.S., 502
F.3d 285 (3d Cir. 2007), remanded a case “involving a Hon-
duran applicant” so that the BIA could “consider[ ] [ ] the
issue presented in the instant case”).5 We conclude that the
BIA’s decision is reasonable given that the same gang is at
issue albeit in different countries.6

[10] We further note that the BIA held that “youth” who
resist gang recruitment do not constitute a particular social
group. The BIA, however, explicitly rejected a formulation of
the social group that was further limited to young men. Id. at
585 (“The male respondents attempt to limit or define their
proposed group by claiming that it is comprised of male chil-
dren . . . who refuse recruitment.”). Finding the BIA’s deci-
sion on-point, we proceed.

[11] The BIA analyzed the purported social group using the
factors set forth in In re Acosta and In re A-M-E-.7 The BIA
first found that members of the group shared common, immu-
5
In a non-precedential decision the BIA recently applied In re S-E-G-
to asserted persecution “on account of . . . membership in a particular
social group, namely Honduran youth who have been actively recruited by
gangs but have refused to join because they oppose the gangs.” In re
Valdiviezo-Galdamez, A097 447 286 (BIA Oct. 22, 2008) (unpublished)
(rejecting the claim, as in In re S-E-G-).
6
Ramos also attests that the MS-13 “operate[s] and [has] a stronghold
throughout North America and most of Central America,” including Mex-
ico, Guatemala, Honduras, and El Salvador, and “operates transnational-
ly.”
7
We previously affirmed and adopted the BIA’s interpretations in these
decisions in Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.
2000) (In re Acosta) and Arteaga v. Mukasey, 511 F.3d 940, 944-45 (9th
Cir. 2007) (In re A-M-E-).
 RAMOS-LOPEZ v. HOLDER 4361
table characteristics. In re S-E-G-, 24 I. & N. Dec. at 584.
While youth is a transient state, the BIA acknowledged “that
the mutability of age is not within one’s control.” Id. at 583-
84. The BIA also noted that prior gang recruitment is “a
shared past experience, which, by definition, cannot be
changed.” Id. at 584. Nonetheless, the BIA explained, “shared
past experience [does not necessarily] suffice [ ] to define a
particular social group for asylum purposes.” Id.

[12] After analyzing the social group under the rubrics of
particularity and social visibility, the BIA determined that
Salvadoran youth who resist recruitment by the MS-13 are not
a particular social group. Id. at 588. Further defining the “par-
ticularity” requirement, the BIA explained that “[t]he essence
of the ‘particularity’ requirement [ ] is whether the proposed
group can accurately be described in a manner sufficiently
distinct that the group would be recognized, in the society in
question, as a discrete class of persons.” Id. at 584. Salvado-
ran youth who were recruited by the MS-13 but resisted mem-
bership failed the particularity requirement because “[t]hey
make up a potentially large and diffuse segment of society,”
and, for that social group further limited by gender, “the moti-
vation of gang members in recruiting and targeting young
males could arise from motivations quite apart from any per-
ception that the males in question were members of a class.”
Id. at 585. In sum, the BIA concluded that the social group,
even with a gender delimitation, “[is] too broad to qualify
because ‘[t]here is no unifying relationship or characteristic to
narrow this diverse and disconnected group.’ ” Id. at 586 (sec-
ond alteration in original) (quoting Ochoa v. Gonzales, 406
F.3d 1166, 1171 (9th Cir. 2005)).

[13] The BIA further rejected the social group claim
because the group lacked the requisite social visibility.
“ ‘[T]he attributes of a particular social group must be recog-
nizable and discrete.’ ” Id. (quoting In re C-A-, 23 I. & N.
Dec. at 956); see also Arteaga, 511 F.3d at 945 (“[A] shared
characteristic of a group must generally be recognizable to
4362 RAMOS-LOPEZ v. HOLDER
others.”) (citing In re A-M-E-, 24 I. & N. Dec. at 74). The
BIA reasoned that “gang violence and crime in El Salvador
appear to be widespread, and the risk of harm is not limited
to young males who have resisted recruitment . . . but affects
all segments of the population.” In re S-E-G-, 24 I. & N. Dec.
at 587.8 Thus, the BIA concluded that those who have resisted
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. While conceding that
young men are targeted, the BIA concluded that such target-
ing is not on the basis of belonging to the class of “men,” but
rather “to fill [the gang’s] ranks.” Id. at 588.

[14] We conclude that the BIA’s decision is not arbitrary
and capricious. Indeed, we relied on the BIA’s decision when
we recently concluded that “young men in El Salvador resist-
ing gang violence” did not constitute a particular social group.
Santos-Lemus, 542 F.3d at 745-46. The BIA’s decision also
comports with our holdings in Sanchez-Trujillo v. INS, 801
F.2d 1571 (9th Cir. 1986), and Ochoa.

In Sanchez-Trujillo, we upheld that BIA’s determination
that “young, urban, working class males” did not constitute a
particular social group. 801 F.2d at 1575-77. In Ochoa, we
similarly affirmed the BIA’s rejection of a social group pur-
ported to consist of “business owners in Colombia who
rejected demands by narco-traffickers to participate in illegal
activity.” 406 F.3d at 1170-71. In both cases, we concluded
that the groups were not sufficiently particular given that indi-
viduals within this group “ ‘manifest[ed] a plethora of differ-
ent lifestyles, varying interests, diverse cultures, and contrary
political leanings.’ ” Id. at 1171 (quoting Sanchez-Trujillo,
8
After explicitly referring to El Salvador, the BIA further noted that
“MS-13 gang members in Central America have resorted to random vio-
lence against the general population as a means to protest against the
crackdown on gang activities in the country.” Id. (internal citation omit-
ted).
 RAMOS-LOPEZ v. HOLDER 4363
801 F.2d at 1577). We relied on both cases when concluding
that “young men in El Salvador resisting gang violence” do
not constitute a social group because it was “too broad and
diverse.” Santos-Lemus, 542 F.3d at 745-46.

[15] The group consisting of young Honduran men who
have been recruited by the MS-13, but who refuse to join, is
similarly broad and diverse. Only shared experience — that
of gang recruitment — unites them. The gangs target a wide
swath of society, and we have no evidence before us that they
target young men with any particular political orientation,
interests, lifestyle, or any other identifying factors. Thus, it
was reasonable for the BIA to conclude that the group was not
sufficiently particular.

[16] The BIA also reasonably concluded that the group
lacked social visibility. The threats and harassment Ramos
and other young men experience after being recruited is a sad
part of the “general criminality and civil unrest” perpetrated
and perpetuated by the MS-13 in Central America. Id. at 746.
There is no evidence in the record that young men who have
been recruited by the MS-13 in Honduras are generally visible
to society. In fact, Ramos-Lopez attests to indiscriminate
action taken by the police against children who are not in
gangs in their efforts to curb gang activity. This fact evinces
a lack of social visibility. 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 mem-
bers appear to keep tabs on individuals who have refused to
join.

[17] We conclude that the BIA reasonably interpreted the
INA by refusing to recognize young Salvadoran men who
have been recruited by gangs and refuse to join as a particular
social group. Deferring to the BIA’s interpretation, we hold
that young Honduran men who have been recruited by gangs
but refuse to join do not constitute a particular social group.
4364 RAMOS-LOPEZ v. HOLDER
B. Political Opinion

[18] Ramos also contends that he was persecuted and has
a well-founded fear of persecution on account of his political
opinion. We defer to the BIA’s reasonable interpretation of
“political opinion” for the same reason we defer to the BIA’s
reasonable interpretation of “particular social group.” The
INA does not define “political opinion.” Instead, the BIA
gives shape to the amorphous term through a process of case-
by-case adjudication.

In Santos-Lemus, we deferred to the BIA’s determination
that “resistance to a gang’s recruitment efforts alone [does
not] constitute[ ] political opinion.” 542 F.3d at 747 (citing In
re S-E-G-, 24 I. & N. Dec. at 588 (relying on INS v. Elias-
Zacarias, 502 U.S. 478 (1992)); see also In re E-A-G-, 24 I.
& N. Dec. 591, 596 (BIA 2008) (“[The] refusal to join MS,
without more, does not constitute a ‘political opinion.’ ”).
Because the petitioner in Santos-Lemus presented no “evi-
dence of an actual political opinion or motive in [the petition-
er’s] or the gang’s actions,” he could not prove persecution on
account of political opinion. 542 F.3d at 747.

[19] Ramos’ case is indistinguishable. He alleges no facts
in support of a political opinion, actual or imputed, beyond his
refusal to join the MS-13. Thus, the IJ’s determination that
Ramos did not prove persecution on account of a protected
ground is supported by substantial evidence.

IV.

Because Ramos did not prove that he suffered or has a
well-founded fear of persecution by the MS-13 on account of
one of the five protected grounds, we uphold the BIA’s deci-
sion denying asylum and withholding of removal.

PETITION FOR REVIEW DENIED.