Diego F. Castillo-Arias v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14662
April 20, 2006
________________________ THOMAS K. KAHN
CLERK
BIA Nos. A74-661-613 & A74-661-614

DIEGO F. CASTILLO-ARIAS,
MARTHA L. RINCON-ESCOBAR,
ANDRES F. CASTILLO-RINCON,
DIEGO F. CASTILLO-RINCON,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(April 20, 2006)

Before BIRCH and MARCUS, Circuit Judges, and NANGLE *, District Judge.

BIRCH, Circuit Judge:

*
Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.
 Previously, we remanded this case to the Board of Immigration Appeals

(“BIA”) to determine whether noncriminal informants working against the Cali

drug cartel constitute a “particular social group” within the meaning of that phrase

in the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq. The BIA

concluded they did not. In this appeal, applying deferential review, we ask

whether the BIA’s interpretation of this statutory provision is reasonable.

Concluding that it is, we DENY, with consternation, the petition for review of the

BIA’s order dismissing the appeal of Diego F. Castillo-Arias, Martha L. Rincon-

Escobar, Andres F. Castillo-Rincon, and Diego F. Castillo-Rincon (collectively

“Castillos”) from the immigration judge’s (“IJ’s”) order denying their application

seeking asylum and withholding of deportation.

I. BACKGROUND

We incorporate the following facts and procedural history, which are not in

dispute, from our previous decision in this case:

Diego Castillo-Arias (“Castillo-Arias”) was born and raised in
Cali, Colombia, the headquarters of the infamous Cali drug cartel.1
Joined by his wife, Martha Rincon-Escobar, and his two sons, Andres
Castillo-Rincon and Diego Castillo-Rincon, Castillo-Arias operated a
bakery in Cali and resided in the city until 1996. During that time,

1
Our recitation of the facts is drawn from Castillo-Arias’s testimony before the
Immigration Judge. The court found Castillo-Arias to be a credible witness. On
appeal, the Government does not challenge Castillo-Arias’s credibility or his
account of the facts. Therefore, the facts are undisputed.
2
Castillo-Arias was an acquaintance of Arturo Davila, a former
policeman in the Cali Police Department who, after being fired for
corruption, became the chief of security for the Cali cartel. Castillo-
Arias also happened to be a good friend of Vladimir Martinez Meza,
who was responsible for investigating and prosecuting narcotics
traffickers in Cali.

Between 1990 and 1994, Davila would visit Castillo-Arias’s
bakery on the weekends and chat openly and brazenly about his
involvement with the Cali cartel. During these conversations, Davila
would identify people, places and events related to the cartel’s
exportation of narcotics from Colombia to the United States and
Europe. Castillo-Arias, as a civic-minded citizen of Cali, passed the
information he learned from Davila along to Meza. He told Meza
about Davila’s statements that the cartel had declared war against the
Colombian government and that the cartel would kill politicians who
oppose it. Castillo-Arias also disclosed the extent, location and size
of the assets of the Cali cartel, including banks, bank accounts,
mansions, haciendas, and villas both within and outside Colombia.

Castillo-Arias’s good deeds would not go unpunished. On May
15, 1995, as Castillo-Arias was watching his son Andres ride his
bicycle in the street, a car suddenly blocked their path and three men
emerged armed with pistols and an automatic weapon. The men tried
to force Castillo-Arias into the car, but he resisted and was pushed to
the ground and beaten. His beating caused Andres to scream loudly,
and one of the men pistol-whipped Andres in the face. Andres’s
scream and the accompanying commotion prompted people in the
neighborhood to emerge from their homes, and the men fled in their
car. As they departed, they told Castillo-Arias that things would only
get worse for him and his family. Castillo-Arias then took his son to a
clinic, where he needed reconstructive surgery to repair his mouth and
jaw.

The Castillos went to Castillo-Arias’s parents’ home in the
northern section of Cali for the rest of the month. Castillo-Arias
attempted to rent his bakery while they were away, but his lessees
were intimidated by individuals who would inquire about him, and on
more than one occasion, a lessee was harmed after he refused to
3
divulge information regarding Castillo-Arias’s whereabouts. Although
Castillo-Arias had never been involved in politics and had never
testified against the cartel in a drug trial, Meza recommended that
Castillo-Arias go into hiding and, ultimately, leave Colombia.2 After
Castillo-Arias made two trips to the United States in 1995, the
Castillos entered the United States in February 1996 as B-2 visitors
for pleasure with authorization to remain in the country until August
8, 1996.

....

On December 10, 1996, in accordance with 8 U.S.C. §
1229(a)(1), the Immigration and Naturalization Service (“the INS”)
issued show cause orders to the Castillos, charging them under 8
U.S.C. § 1227(a)(1)(B) with having remained in the United States for
a longer time than permitted. At the show cause hearing, the Castillos
admitted the factual allegations in the show cause orders and
conceded the charge of deportability. At that time, through counsel,
they requested relief from deportation in the form of asylum,
withholding of deportation, or at the very least, voluntary departure.3

Following a hearing on their requests for relief, [the IJ] denied
the Castillos’ applications for asylum and withholding of deportation.
Initially, the IJ noted that an alien is eligible for asylum under 8
U.S.C. § 1158(b)(1) only if he or she is a “refugee,” which is defined
as an alien who is unable or unwilling to return to his or her country
of origin because of “persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). The IJ concluded that even if the Castillos have a
fear of harm, that harm does not arise on account of race, religion,
nationality, membership in a particular social group, or political
opinion. Instead, the IJ concluded, the threat to the Castillos was

2
Meza left Colombia for Spain, and it appears that Davila may have been
murdered.
3
It also appears that Castillo-Arias, on behalf of his entire family, had filed an
application for asylum with the INS before the show cause orders were issued.
4
based on “retaliation” or “retribution” due to Castillo-Arias’s
voluntary decision to be an informant against the cartel. (Admin Rec.
at 103, 104). On this basis, the IJ denied the Castillos’ applications
for asylum. And because the Castillos failed to meet the lower burden
of proof for establishing eligibility for asylum, the IJ denied
withholding of deportation because they could not satisfy the higher
burden of proof to qualify for such relief. See 8 U.S.C. § 1253(h)(1)
(1994); Al Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001).
The IJ granted the Castillos’ requests for voluntary departure and
entered an alternative order of deportation to Colombia.

The Castillos timely filed an appeal to [the BIA]. On appeal,
Castillo-Arias and his family argued that they qualified as “refugees”
under 8 U.S.C. § 1101(a)(42)(A) because they suffered a well-
founded fear of persecution based on (1) a political opinion imputed
to Castillo-Arias by the drug cartel and (2) his membership in a
particular social group, namely, a group composed of non-criminal
informants. The BIA rejected their first argument, holding that the
people who threatened the Castillos did so “out of personal motives
and not due to any political opinion imputed to [Castillo-Arias].”
(Admin. Rec. at 9.) Although the BIA did not separately address their
claim based on membership in a particular social group, the BIA
ultimately concluded that the record contained insufficient evidence
that there was any motivation other than revenge for the aid Castillo-
Arias provided to the government, and wrote that “[w]e agree with the
Immigration Judge’s well-reasoned decision that the respondents have
failed to adequately establish that they suffered past persecution or
that they have a well-founded fear of persecution on account of a
ground protected under the Immigration and Nationality Act.” (Id. at
8-9.) As a result, the BIA affirmed the IJ’s decision and dismissed the
appeal.

Castillo-Arias v. U.S. Att’y Gen., No. 02-12125, slip op. at 2-7 (11th Cir. 25

Aug. 2003) (per curiam) (certain footnotes omitted or renumbered).

5
 In that prior appeal, we held that the facts of the case were essentially

undisputed, and the only issue was the application of the INA. Castillo-

Arias, No. 02-12125, slip. op. at 7. We affirmed the BIA’s conclusion that

Castillo-Arias was not persecuted on account of his political opinion. Id. at

11-12. However, we held that the BIA’s conclusion that Castillo-Arias was

targeted by the cartel solely out of revenge was not supported by substantial

evidence. Id. at 12-13. Though there was evidence of revenge, a reasonable

factfinder would be compelled to conclude that Castillo-Arias produced

evidence that the harm was motivated by his membership in a group

composed of noncriminal informants. Id. at 13. We then remanded the case

to the BIA to decide the sole issue here on appeal, i.e., if noncriminal

informants constitute a “particular social group” within the meaning of the

phrase in the INA, 8 U.S.C. § 1101(a)(42)(A). Castillo-Arias, No. 02-

12125, slip op. at 14-15.

On remand, the BIA concluded that noncriminal informants did not

constitute a “particular social group.” The BIA relied on Matter of Acosta,

19 I. & N. Dec. 211, 233-34 (BIA 1985), overruled on other grounds by

Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987), as authority for

the premise that a “‘particular social group’” refers to persons who “‘share a

common, immutable characteristic.’” R1 at 54 (quoting Matter of Acosta,
6
19 I. & N. Dec. at 233). Reiterating Acosta, the BIA stated that members of

a particular social group are those persons with a “‘shared characteristic. . .

such as sex, color, or kinship ties, or in some circumstances . . . a shared

past experience such as former military leadership or land ownership.’” Id.

(quoting Matter of Acosta, 19 I. & N. Dec. at 233). The BIA noted that this

characteristic “‘must be one that the members of the group either cannot

change, or should not be required to change because it is fundamental to

their individual identities or consciences.’” Id. (quoting Matter of Acosta,

19 I. & N. Dec. at 233). It is only in these circumstances that membership in

a “particular social group” becomes comparable to the other grounds listed

in the statute. Id. While reiterating its continued adherence to the Acosta

formulation, the BIA’s decision also referenced guidelines from the United

Nations High Commissioner for Refugees (“UNHCR”), which define a

particular social group as

[a] group of persons who share a common characteristic other
than their risk of being persecuted, or who are perceived as a
group by society. The characteristic will often be one which is
innate, unchangeable, or which is otherwise fundamental to
identity, conscience or the exercise of one’s human rights.

Id. at 55 (citing UNHCR, Guidelines on International Protection:

“Membership of a particular social group” within the Context of Article

1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status
7
of Refugees, ¶ 11, U.N. Doc. HCR/GIP/02/02 (May 7, 2002) [hereinafter

“UNHCR Guidelines”]).

The BIA then considered whether Castillo-Arias’s past acts were “the

kind of shared past experience that constitutes membership in a particular

social group.” Id. at 57. In applying the Acosta formulation, the BIA listed

two major considerations: (1) immutability and (2) social visibility. Id. at

57-59. In analyzing immutability, the BIA conceded that “[a] past

experience is, by its very nature immutable, as it has already occurred and

cannot be undone.” Id. at 57. The BIA noted, however, that this fact “does

not mean that any past experience that may be shared by others suffices to

define a particular social group for asylum purposes.” Id.

Analogizing noncriminal informants to occupations like the police or

military, the BIA stated that “we do not afford protection based on social

group membership to persons exposed to risks normally associated with

employment in [such] occupations.” Id. (citing Matter of Fuentes, 19 I. &

N. Dec. 658 (BIA 1988)). While noting that a former member of the

national police could conceivably demonstrate membership in a particular

social group, the BIA cautioned that “if a former police officer were singled

out for reprisal, not because of his status as a former police officer, but

because of his role in disrupting particular criminal activity, he would not be
8
considered, without more, to have been targeted as a member of a particular

social group.” Id. The BIA further concluded that those who accept such

employment are aware of the risks involved in the disruption of criminal

activity. Id. Similarly, the BIA noted that those who inform on criminal

activity are also aware of similar dangers. It also dismissed the distinction

between compensated informants and uncompensated, civic-minded

informants as “not particularly helpful in addressing the question of who is

deserving of protection under the asylum law.” Id. at 57.

In analyzing social visibility, the BIA stressed that its “other decisions

recognizing particular social groups involved characteristics which were

highly visible and recognizable by others in the country in question.” Id. at

58. The BIA noted that the two illustrations provided in Acosta, “‘former

military leadership and land ownership’––are also easily recognizable

traits.” Id. (quoting Matter of Acosta, 19 I. & N. Dec. at 234). Once again

referencing the UNHCR Guidelines, the BIA stated that while “‘persecutory

action toward a group may be a relevant action in determining the visibility

of a group in a particular society,’” the social group was not meant to be a

catch-all and “‘cannot be defined exclusively by the fact that it is targeted

for persecution.’” Id. (quoting UNHCR Guidelines ¶¶ 2, 14 (emphases in

original)).
9
 With regard to confidential informants, the BIA noted that “the very

nature of the conduct at issue is such that it is generally out of the public

view,” and it thereby concluded that informants lacked the necessary social

visibility to be recognized as a “particular social group.” Id. In ultimately

denying Castillo-Arias’s appeal and affirming the IJ’s decision, the BIA

raised additional concerns about the numerosity and inchoateness of

informants and noted that the cartels have been known to target the

population in general in order to intimidate potential witnesses and anyone

perceived to have interfered with its operations. Id. at 59. The Castillos

then timely appealed the BIA’s decision.

II. DISCUSSION

A. Standard of Review

To the extent that the BIA’s decision was based on a legal

determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244,

1247-48 (11th Cir. 2001). However, as we noted in our previous decision,

“[de novo] review of the BIA’s interpretation is informed by the principle of

deference articulated in Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).” Castillo-

Arias, No. 02-12125, slip op. at 9-10.

10
 The Supreme Court has established a two-step process for reviewing

an agency’s interpretation of a statute which it administers. Chevron, 467

U.S. at 842-44, 104 S. Ct. at 2781-82. First, if congressional purpose is

clear, courts and administrative agencies “must give effect to the

unambiguously expressed intent of Congress.” Id. at 842-43, 104 S. Ct. at

2781. A second level of review, however, is triggered when “the statute is

silent or ambiguous with respect to the specific issue.” Id. at 843, 104 S. Ct.

at 2782. “In such a case, a court may not substitute its own construction of a

statutory provision for a reasonable interpretation made by the administrator

of an agency.” Id. at 844, 104 S. Ct. at 2782; see also INS v. Aguirre-

Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 1445 (1999) (“[T]he BIA

should be accorded Chevron deference as it gives ambiguous statutory terms

concrete meaning through a process of case-by-case adjudication.”

(quotations omitted)); Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d

1320, 1327 n.4 (11th Cir. 2001) (“The degree of deference is especially great

in the field of immigration.”). An agency’s interpretation is deemed

reasonable unless it is “arbitrary, capricious, or clearly contrary to law.”

Alabama Power Co. v. Fed. Energy Regulatory Comm’n, 22 F.3d 270, 272

(11th Cir. 1994).

11
 At issue in this case is the BIA’s interpretation of the statutory phrase

“particular social group.” Under the INA, an alien who arrives in or is

present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1).

The BIA, through the Attorney General, has the discretion to grant asylum if

the alien meets the INA’s definition of a “refugee.” See id. § 1158(b)(1)(A);

Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In addition,

the asylum applicant carries the burden of proving statutory “refugee” status.

Al Najjar, 257 at 1284. In relevant part, a “refugee” is

any person who is outside any country of such person’s
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection
of, that country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A) (emphasis added). With regard to withholding of

deportation (now removal), the Attorney General may not deport an alien if

his life or freedom would be threatened in that country because of “race,

religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1253(h)(1) (1994) (emphasis added) (now codified at 8

U.S.C. § 1231(b)(3)(A)).

12
 Congress did not directly speak on the issue of what constitutes a

“particular social group,” one of the five listed categories that qualify for

refugee status or withholding of deportation, within the meaning of the INA.

See 8 U.S.C. § 1101(a)(42)(A); id. § 1253(h)(1) (1994) (now codified at 8

U.S.C. § 1231(b)(3)(A)). Accordingly, we must follow the BIA’s

determination that noncriminal informants working against the Cali cartel

are not a social group under the INA unless the interpretation is

unreasonable, i.e., arbitrary, capricious, or clearly contrary to law. See

Alabama Power Co., 22 F.3d at 272.

B. Whether the BIA’s Interpretation Is Reasonable

The Castillos argue that the BIA’s interpretation of “particular social

group,” which excludes noncriminal informants working against the Cali

drug cartel, was unreasonable. In so doing, they contend that other social

groups that have qualified under the INA are neither more visible nor

recognizable than noncriminal informants or former informants. They

further assert that the BIA put forth contradictory rationales in concluding

that noncriminal informants do not qualify as a particular social group.

Additionally, they contend that Castillo-Arias’s family members have

suffered derivative persecution on the basis of his status as a noncriminal

informant.
13
 To date, we have not expressly reviewed, under Chevron, the BIA’s

legal definition of “particular social group.” There are six circuits who have

deferred to the Acosta formulation. See Thomas v. Gonzales, 409 F.3d

1177, 1184-87 (9th Cir. 2005) (en banc); Niang v. Gonzales, 422 F.3d 1187,

1199 (10th Cir. 2005); Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005);

Castellano-Chacon v. INS, 341 F.3d 533, 546-48 (6th Cir. 2003); Lwin v.

INS, 144 F.3d 505, 511-12 (7th Cir. 1998); Fatin v. INS, 12 F.3d 1233,

1238-40 (3d Cir. 1993). Two circuits, while not expressly deferring to the

BIA’s legal definition of “particular social group,” have viewed Acosta

favorably. See Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004)

(citing the Acosta formulation in support of including “family” within

“particular social group”); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352

(5th Cir. 2002) (citing to Acosta and restating the Acosta formulation). Two

other circuits, however, may differ in some respects with the general

definition as stated in Acosta. See Safaie v. INS, 25 F.3d 636, 640 (8th

Cir. 1994) (noting that the “principal concern [regarding a “particular social

group”] is a ‘voluntary associational relationship among the purported

members, which imparts some common characteristic that is fundamental to

their identity as a member of that discrete social group’” (citation omitted)),

superceded by statute on other grounds recognized by Rife v. Ashcroft, 374
14
F.3d 606, 614 (8th Cir. 2004); Gomez v. INS, 947 F.2d 660, 664 (2d Cir.

1991) (defining “a particular social group” as “comprised of individuals who

possess some fundamental characteristic in common which serves to

distinguish them in the eyes of a persecutor–or in the eyes of the outside

world in general”).

As an initial matter, we join our sister circuits who have deferred to

the BIA’s Acosta formulation of “particular social group.” The expertise

necessary to craft this definition is well within the BIA’s bailiwick and is

neither arbitrary, capricious, nor clearly contrary to law. See Alabama

Power Co., 22 F.3d at 272. We do not doubt the reasonableness of the

BIA’s requirement of a “common, immutable characteristic . . . [that] is

fundamental to [its members’] individual identities or consciences,” which is

consonant with the purposes that underlie the other four grounds for refugee

status or withholding of deportation under the INA. See Matter of Acosta,

19 I. & N. Dec. at 233-34. Furthermore, Acosta strikes an acceptable

balance between (1) rendering “particular social group” a catch-all for all

groups who might claim persecution, which would render the other four

categories meaningless, and (2) rendering “particular social group” a nullity

by making its requirements too stringent or too specific. Reference to the

UNHCR Guidelines by the BIA in elucidating the Acosta formulation is
15
permissible because the U.S. Supreme Court has held that Congress intended

to conform United States refugee law with the 1967 United Nations Protocol

Relating to the Status of Refugees. See INS v. Cardoza-Fonseca, 480 U.S.

421, 436-37, 107 S. Ct. 1207, 1215-16 (1987); see also Castellano-Chacon,

341 F.3d at 546-48 (noting that “[t]he UNHCR takes the Second Circuit’s

approach, in that the external perception of the group can be considered as

an additional factor” and that “[a]s the BIA continues to revise and evaluate

its own definition of a particular social group, our definition may evolve in

the same way as the BIA’s, with the caveat that the BIA must continue to

make a reasonable interpretation”).

We also apply Chevron deference to the BIA’s further articulation of

the Acosta formulation with regard to the eligibility of noncriminal

informants who work against the Cali cartel. See Aguirre-Aguirre, 526 U.S.

at 425, 119 S. Ct. at 1445; Cardoza-Fonseca, 480 U.S. at 448, 107 S. Ct. at

1221 (“In [the] process of filling any gap left, implicitly or explicitly, by

Congress, the courts must respect the interpretation of the agency to which

Congress has delegated the responsibility for administering the statutory

program.” (quotations omitted) (emphasis added)). In so doing, we conclude

that the BIA’s legal determination that noncriminal informants do not fall

within the Acosta formulation is also reasonable.
16
 Here, the BIA noted that Castillo-Arias’s activity as an informant is an

historic fact which is immutable, but is not necessarily an experience shared

by others that is sufficient to define a social group for asylum purposes. R1

at 57. Narcotics traffickers, such as the cartel, threaten “anyone and

everyone perceived to have interfered with, or who might present a threat to,

their criminal enterprises.” Id. at 59. For this reason, informants against the

cartel often intend to remain undiscovered. Id. at 58. Generally, those

informants who remain anonymous are not visible enough to be considered a

“particular social group,” as the very nature of the activity prevents them

from being recognized by society at large.

Thus, the social visibility of informants is different in kind from the

particular social groups that have been afforded protection under the INA.

See, e.g., Matter of V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997) (Filipinos

of mixed Filipino-Chinese ancestry); Matter of Kasinga, 21 I. & N. Dec.

357, 365-66 (BIA 1996) (young women of a particular tribe who were

opposed to female genital mutilation); Matter of Toboso-Alfonso, 20 I. & N.

Dec. 819, 822-23 (BIA 1990) (persons listed by the government as having

the status of homosexual); Matter of Fuentes, 19 I. & N. Dec. at 662 (former

members of the national police); Matter of Acosta, 19 I. & N. Dec. at 234

(former military leadership and land ownership). Insofar as informants share
17
some characteristics with former members of the national police, they are

nonetheless distinguishable. First, the BIA emphasized that it did not afford

protection to “persons exposed to risks normally associated with

employment in occupations such as the police or military.” R1 at 57.

Second, even if former members of the national police were targeted based

on their status as former police officers, the decision to afford protection

under the INA is situationally dependent. See R1 at 57 (“[A] former police

officer could conceivably demonstrate persecution based on membership in

a particular social group.”) (emphasis added).

In Matter of Fuentes, the BIA noted that mistreatment occurring

because of the status of being a former member of the national police “in

appropriate circumstances” could be found to be persecution on account of

membership in a particular social group. 19 I & N Dec. at 662 (emphasis

added). The only example provided in Fuentes as an appropriate

circumstance was when the former police officers would be targeted based

on their status after “hostilities have ceased.” See id. In this case, there is

no evidence that the Cali cartel has ceased its hostilities. Furthermore, there

is nothing in the record that would compel us to conclude that noncriminal

informants working against the Cali cartel warrant an exception to the

general rule that those who engage in risks similar to those of the police or
18
military, regardless of motive, do not receive protection as a particular social

group under the INA.

To the extent that there are noncriminal informants that do not keep

their activities secret, the BIA reasonably concluded that they still do not

constitute a “particular social group” under the INA because there is no

evidence that the cartel would treat them any differently from any other

person the cartel perceived to have interfered with its activities. The risk of

persecution alone does not create a particular social group within the

meaning of the INA, as virtually the entire population of Colombia is a

potential subject of persecution by the cartel. See R1 at 59. While they may

be recognizable after their activities have been disclosed to the cartel or to

society, their defining attribute is their persecution by the cartel. As stated

previously, “particular social group” should not be a “catch all” for all

persons alleging persecution who do not fit elsewhere. In restricting the

grounds for asylum and withholding of deportation based on persecution to

five enumerated grounds, Congress could not have intended that all

individuals seeking this relief would qualify in some form by defining their

own “particular social group.” See 8 U.S.C. § 1101(a)(42)(A); id. §

1253(h)(1) (1994) (now codified at 8 U.S.C. § 1231(b)(3)(A)). Accordingly,

19
the BIA’s conclusion that noncriminal informants were not visible enough to

be considered a social group was reasonable.

We now turn to the BIA’s additional concerns regarding the

numerosity and inchoateness of noncriminal informants. We believe that

these concerns are valid. See Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th

Cir. 2005) (holding that Colombian business owners who rejected demands

from narcotics traffickers are “too broad to qualify as a particularized social

group” because “[t]here is no unifying relationship or characteristic to narrow

this diverse and disconnected group”). Moreover, despite the Castillos’s

assertions, there is nothing contradictory in concluding that a group of

informants are, for purposes of the INA, both not visible enough, and, at the

same time, potentially too numerous or inchoate. The fact that a

characteristic or association is shared by a large number of people does not

mean that either society at large, let alone other members within that same

group, will recognize that characteristic or association. This is especially so

when the characteristic or association is inherently secretive. Because we

conclude that the BIA’s interpretation of the INA is reasonable with regard to

noncriminal informants, we need not determine whether Castillo-Arias’s

family has suffered derivative persecution on that basis.

20
 As we are required to do, we have given the requisite deference to the

BIA’s interpretation of the INA. However, we are dismayed that these

petitioners, who risked their lives and the safety of their families to assist our

nation’s allies in the “war on drugs,” have been ignored by our nation. We

regret that Congress has not deemed it appropriate to craft some legislative

relief for these individuals and those similarly situated. Perhaps the

compelling facts in this case and its troublesome resolution might be the

impetus for such relief.

III. CONCLUSION

Having previously concluded that the Castillos’s eligibility for asylum

and withholding of deportation turned upon whether noncriminal informants

working against the Cali cartel constitute a “particular social group” within

the meaning of the INA, we remanded this action to the BIA. On remand

from our court, the BIA concluded that noncriminal informants do not

constitute a “particular social group” under the INA. Back on appeal, we

conclude that the BIA’s interpretation of the INA was reasonable.

Notwithstanding their very sympathetic personal circumstances, the Castillos

are ineligible for asylum or withholding of deportation. PETITION

DENIED.

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