Mayorga-Vidal v. Holder, Jr.
Filing
OPINION issued by Kermit V. Lipez, Appellate Judge; David H. Souter, Associate Supreme Court Justice and Jeffrey R. Howard, Appellate Judge. Published. [09-1208]
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Entry ID: 5626594
United States Court of Appeals
For the First Circuit
No. 09-1208
HENRY EDGARDO MAYORGA-VIDAL,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Souter,* Associate Justice,
and Howard, Circuit Judge.
Ilana Greenstein, with whom Maureen O' Sullivan, Jeanette Kain
and Kaplan, O'Sullivan & Friedman, LLP were on brief, for
petitioner.
Corey L. Farrell, Attorney, Office of Immigration Litigation,
United States Department of Justice, Civil Division, with whom Tony
West, Assistant Attorney General, Civil Division and Greg D. Mack,
Senior Litigation Counsel, were on brief, for respondent.
March 16, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
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HOWARD, Circuit Judge. In 2002, petitioner Henry Edgardo
Mayorga-Vidal, a native and citizen of El Salvador, attempted to
enter the United States without authorization. He was detained and
placed in removal proceedings, where he initially denied that he
was removable.
He also sought asylum, withholding of removal and
protection under the Convention Against Torture ("CAT").
In
support of his asylum and withholding requests, Mayorga-Vidal
claimed that he would suffer future persecution if returned to his
homeland, based on two statutorily-protected grounds. See 8 U.S.C.
§ 1101(a)(42)(A).
The first was his purported membership in a
"particular social group," defined by him as young Salvadoran men
who
have
resisted
gang
recruitment
unavailable to protect them.
See id.
and
whose
parents
are
The second ground was his
alleged anti-gang, pro-establishment "political opinion." See id.
He sought CAT relief on the ground that, if repatriated, he would
face gang violence for which the government would be responsible.
All three requests for relief failed before both the Immigration
Judge
(IJ)
and
the
Board
of
Immigration
Appeals
Mayorga-Vidal now petitions for judicial review.
(BIA),1
and
After a careful
review of the final agency orders and the underlying record, we
deny the petition.
1
This case was heard by different IJs on two occasions and
also was twice reviewed by the BIA.
Both IJs credited the
petitioner's factual account, and these findings were left
undisturbed by the two BIA decisions.
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I.
We
summarize
the
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Background
facts
as
provided
in
the
decisions and as otherwise undisputed by the parties.
Vidal was born in El Salvador in 1984.
agency
Mayorga-
By 1998, his parents had
left the country for the United States, leaving him in the care of
his aunt and other family.
the
wake
of
the
country's
Many parents made a similar choice in
civil
war,
and
El
Salvador
later
experienced wide-spread gang problems.
Mayorga-Vidal's family life in his aunt's household was
less than ideal, and, apparently, none of the extended family
members took an interest in caring for him.
Around the time that
Mayorga-Vidal was 14 or 15 years old, gang members of the "Mara 18"
approached him in the street and attempted to recruit him, but he
declined to join their ranks.
friends, the gang fled.
Upon the arrival of some of his
This encounter would not be the last.
Different members of the Mara 18 approached him on several more
occasions, demanding that he join the gang, and when he refused,
they would tell him to be "very careful."
During one encounter,
the gang members threatened to beat him, and, still, he declined
gang membership.
At one point, a neighbor recommended to Mayorga-Vidal
that he join a church group as an alternative to membership in a
street gang and as a means of keeping himself safe from gang
intimidation.
He did so and participated in church activities for
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about a year and a half.
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During this time, his contact with gang
members was minimal because he avoided situations that would force
an encounter.
Some contact occurred, however, when Mayorga-Vidal
visited some of his cousins who were active gang members.
In
2001,
the
petitioner
experienced
his
final
confrontation with the Mara 18, during which gang members told him
that if they ever found him alone they would kill him.
The gang's
threats resonated with Mayorga-Vidal because he and his family
believed that the Mara 18 had killed his cousin who had been a
member of a rival gang.
He did not report his encounters to the
police out of fear of gang retaliation. Five months after his last
gang
encounter,
February 2002.
Mayorga-Vidal
left
for
the
United
States
in
He was 17 years old at the time.
At his removal hearing, Mayorga-Vidal gave his personal
account, and he presented expert testimony and documentary evidence
about country conditions in El Salvador.
The evidence showed that
gang violence was a pervasive problem in El Salvador, touching all
segments of the population.
Reports also indicated that the
government
to
had
made
efforts
combat
the
gang
stronghold,
including the creation of an anti-gang task force which deployed
hundreds of military personnel to high crime areas.
Despite such efforts, gang violence continued to be a
serious, wide-spread problem in El Salvador.
Two expert witnesses
testified that the Salvadoran police were ineffectual, with one
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stating that some police officers were actively involved in gang
activity.
One also testified that Mayorga-Vidal's status as a
youth without family support would make him a prime target for gang
recruitment, and that if he refused to join a gang he could be
threatened, intimidated, beaten, or killed.
Ultimately, the IJ found Mayorga-Vidal removable, denied
his requests for relief, and ordered him removed to El Salvador
(2004 IJ decision).
This decision was summarily affirmed by the
BIA (2005 BIA decision), and Mayorga-Vidal petitioned this court
for review.
Before appellate briefing was complete, however, on
the government's unopposed motion, the matter was remanded for the
agency to consider the claim of "political opinion" persecution, an
issue left undecided in the 2004 IJ decision.
the
evidence
from
the
first
hearing,
as
The IJ accepted all
well
as
additional
testimony from Mayorga-Vidal. The petitioner conceded removability
before the IJ, and after denying his claim of "political opinion"
persecution, the IJ again ordered Mayorga-Vidal removed (2007 IJ
decision).
In an order that included brief written analysis, the
BIA affirmed the second IJ's decision and also reaffirmed its
previous dismissal of Mayorga-Vidal's claim of "social group"
persecution (2009 BIA decision).
This timely petition followed.
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II. Discussion
We
review
the
agency's
findings
of
fact
under
a
deferential, "substantial evidence" standard, and we give respect
to its findings as long as they are supported by the record on the
whole.
Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009);
Touch v. Holder, 568 F.3d 32, 38 (1st Cir. 2009); see 8 U.S.C.
1252(b(4)(B).
De novo review is accorded to legal conclusions,
with some deference accorded the agency's statutory interpretation
in line with principles of administrative law.
Scatambuli, 558
F.3d at 58; see INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25
(1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467
U.S.
ambiguous,
837,
"we
842-43
uphold
(1984).
the
When
a
statute
implementing
is
agency's
silent
or
statutory
interpretation, provided it is 'reasonable' and consistent with the
statute."
Scatambuli, 558 F.3d at 58.
The procedural path of this case results in the following
review of the agency orders.
We review the 2009 BIA decision in
tandem with the 2004 IJ decision for the "particular social group"
claim of future persecution,2 and the 2009 BIA decision together
2
The entirety of the IJ's analysis in its 2004 decision
regarding the "social group"-based claims may be reviewable, given
the 2007 BIA summary affirmance of that decision.
The BIA,
however, revisited sua sponte the "social group" analysis in its
2009 decision, and we need not consider the extent to which this
decision may have supplanted the BIA's 2007 summary affirmance
because the reasons provided in its later decision adequately
supported its dismissal of the petitioner's claim of "social group"
persecution.
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with the 2007 IJ decision for the "political opinion" claim of
future persecution.
Our review of the CAT claim rests on the 2004
IJ decision as summarily affirmed by the 2005 BIA decision.
See,
e.g., Villa-Londono v. Holder, 600 F.3d 21, 23 (1st Cir. 2010)
(stating that where the BIA adopts portions of the IJ's decision
while adding its own comments, appellate court reviews both the
IJ's opinion and the BIA's decision).
Asylum and Withholding of Removal
To be eligible for asylum, an alien must establish that
he has a well-founded fear of future persecution if repatriated (a
showing of past persecution creates a rebuttable presumption of a
well-founded fear), on account of a statutorily-protected ground:
"race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. 1101(a)(42)(A); see MendezBarrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010) (providing legal
framework regarding past persecution, and explaining that a wellfounded fear of future persecution is one that is both subjectively
genuine and objectively reasonable).
An alien seeking withholding
of removal must meet a higher burden, proving he will more likely
than not suffer future persecution on account of one of the
enumerated protected grounds.
See Faye v. Holder, 580 F.3d 37, 41
(1st Cir. 2009); 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b)(2);
see also INS v. Stevic, 467 U.S. 407, 430 (1984).
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In his brief, the petitioner characterizes his future
persecution claim as follows: "[Mayorga-Vidal] does not claim that
being targeted for recruitment efforts constitutes persecution, but
that violent retribution for refusing to comply with those efforts
does."
Contending
petitioner
argues
that
that:
he
will
be
"Insofar
"branded
as
his
an
enemy,"
refusal
to
the
join
constitutes an expression of an anti-gang political opinion, the
Mara 18's retribution against him would clearly be political in
nature. Insofar as his vulnerability to targeting, recruitment and
attack is exacerbated by his status as a young man with no family
to
protect
him,
the
retribution
would
be
on
account
of
his
membership in a particular social group as well."
In its 2009 decision, the BIA held that Mayorga-Vidal had
not established past persecution, and the petitioner does not
challenge that conclusion.
The Board also affirmed the denial of
both the asylum and withholding of removal requests on the basis
that Mayorga-Vidal had not established that any potential future
persecution would be on account of his "proposed membership in a
particular social group of those opposed to gangs, or any anti-gang
'political opinion' the gangs might impute to [him]."
1. Social Group
The
term
"particular
social
group,"
8
U.S.C.
§
1101(a)(42)(A), is not defined by statute, and we accord deference
to the BIA's interpretation of the bounds of this phrase.
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See
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Mendez-Barrera, 602 F.3d at 25-26; Faye, 580 F.3d at 41; see also
Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006) (per curiam).
We
have accepted that a legally cognizable social group is one whose
members share a common, immutable characteristic that makes the
group socially visible -- that is, generally recognizable in the
community -- and sufficiently particular to define the group's
membership.
See Carvalho-Frois v. Holder, 667 F.3d 69, 73 (1st
Cir. 2012); see also Faye, 580 F.3d at 41.
Because discrete groups
meeting the immutable characteristic requisite -- such as racial or
ethnic groups,
see
8
U.S.C.
§ 1101(a)(42)(A)
--
are
already
independently afforded protected status, successful "stand-alone
social group claims are rather rare," Silva v. Ashcroft, 394 F.3d
1, 5 (1st Cir. 2005).
The BIA has defined a common, immutable characteristic as
"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," akin to the other four
protected grounds -- race, religion, nationality, and political
opinion.
In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); see
Scatambuli, 558 F.3d at 59 (identifying factors relied upon by the
BIA to determine whether a claimed social group constitutes a
legally cognizable one). Examples include an innate characteristic
such as sex, color, or kinship ties, or a shared past experience
such as former military leadership or land ownership.
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In re
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Acosta, 19 I. & N. Dec. at 233; see also In re C-A-, 23 I. & N.
Dec. 951, 955, 959-60 (BIA 2006) (discussing immutability based on
past experiences and collecting BIA cases illustrating a range of
recognized "particular social groups").
Additionally, societal perceptions are important.
The
BIA has underscored that "the extent to which members of a society
perceive those with the characteristic in question as members of a
social group" plays a meaningful part in discerning whether a
particular shared characteristic gives rise to a protected social
group.
In re E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008); see
Carvalho-Frois,
667
F.3d
at
73
(providing
that
the
common
characteristic must be one that enables the community, not just the
alleged persecutors, "readily to differentiate" members of the
group from the country's populace as a whole).
Especially
pertinent
here,
a
common,
immutable
characteristic properly bounds a protected social group only if it
is "sufficiently distinct" such that the proposed group would be
recognized as a "discrete class of persons."
& N. Dec. 579, 584 (BIA 2008).
In re S-E-G-, 24 I.
In other words, the proffered
characteristic must provide a clear demarcation, "permit[ting] an
accurate separation of members from non-members"; an amorphous
feature will not satisfy this requirement.
Ahmed v. Holder, 611
F.3d 90, 94 (1st Cir. 2010); In re S-E-G-, 24 I. & N. Dec. at 584.
Consequently, loose descriptive phrases that are open-ended and
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that
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invite
subjective
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interpretation
are
not
particular to describe a protected social group.
Entry ID: 5626594
sufficiently
See Ahmed, 611
F.3d at 94; Mendez-Barrera, 602 F.3d at 27.
Discerning the parameters of a cognizable social group is
not always a straightforward task, especially when the proposed
shared immutable characteristic comprises a common life experience
or
circumstance,
demarcation.
rather
than
an
innate
trait
or
physical
Nevertheless, an examination of precedent provides
sufficient guidance in this case.
See Garcia-Callejas v. Holder,
666 F.3d 828, 829 (1st Cir. 2012).
Mayorga-Vidal identifies his purported social group as
"young Salvadoran men who have already resisted gang recruitment
and whose parents are unavailable to protect them."
however,
on
many
occasions
rejected
social
group
We have,
status
for
purported groups bearing similar hallmarks -- namely, youth who are
resistant to gang membership.
See id. at 830 (collecting cases
that decline protected social group status for young Salvadoran men
or women recruited by gang members or those who resist such
recruitment); see, e.g., Diaz v. Holder, No. 11-1125, 2012 WL
372664, at *2 (1st Cir. Feb. 7, 2012); Socop v. Holder, 407 F.
App'x 495, 498 (1st Cir. 2011); Mendez-Barrera, 602 F.3d at 26-27;
Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010).
Recently, we
displayed several BIA cases that are consistent with this approach.
See Garcia-Callejas, 666 F.3d at 830.
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The
purported
bulk
social
of
group
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the
--
Date Filed: 03/16/2012
characteristics
young
men
who
of
have
Entry ID: 5626594
Mayorga-Vidal's
resisted
gang
recruitment -- fall squarely within this governing authority, and
the BIA cited to its own precedent in this regard when affirming
the denial of asylum and withholding.
See In re S-E-G-, 24 I. & N.
Dec. at 585 (rejecting a petitioner's proposed social group of
young Salvadorans who resisted gang recruitment in part because it
represented
a
large,
diffuse
portion
of
society
with
characteristics simply too amorphous to readily distinguish the
boundaries of membership).
Although "particular social group"
status is a country-specific inquiry that involves underlying fact
finding, see Gonzales, 547 U.S. at 186-78; Faye, 580 F.3d at 41, we
have repeatedly deferred to the BIA's reasonable determination that
the features encompassing "youths who resist gang recruitment" are
simply too subjective and open-ended to describe a sufficiently
particular, legally cognizable social group. See, e.g., Diaz Ruano
v. Holder, 420 F. App'x 19, 22 (1st Cir. 2011) (per curiam);
Larios, 608 F.3d at 109; Mendez-Barrera, 602 F.3d at 27.
The same
analysis applies to this case, and we need not revisit it.
Mayorga-Vidal, however, seeks to distinguish his proposed
group by attributing a purported immutable characteristic that he
claims is sufficiently particular and socially visible:
the group
consists of those whose parents are unavailable to protect them.
According to the petitioner, the BIA improperly relied on prior BIA
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decisions and failed to consider the uncontroverted evidence that
a large segment of Salvadoran children were left behind when their
parents fled the country in the 1980s and 1990s due to civil war,
that the young males who consequently lack parental protection are
particularly vulnerable to gang recruitment, and that Salvadoran
society, the police, and gangs all view this distinct, vulnerable
population as prime candidates for gang recruitment.
The record
does not bear out these criticisms.
In affirming the IJ's dismissal of the claims based on
social
group,
the
BIA
did
not
ignore
the
evidence,
as
the
petitioner contends, but rather adopted the IJ's analysis and
followed supportive BIA precedent.
See In re S-E-G-, 24 I. & N.
Dec. 579; In re E-A-G-, 24 I. & N. Dec. 591.
The IJ's decision, in
turn, reflects several reasons for declining to extend protected
social group status to the proffered characteristics urged by the
petitioner.
The
IJ
found
that
the
petitioner's
proffered
group
profile was "too broad and encompasses too large a percentage of
the population."
In so doing, the IJ followed prior BIA authority
setting forth that "simply identify[ing] the common characteristic
of a statistical grouping of a portion of the population at risk"
is not enough to create a "particular social group."
See In re
Sanchez and Escobar, 19 I. & N. Dec. 276, 285 (BIA 1985).
In
considering the record before it, the IJ found that the evidence
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did not establish that "young men without familial support are
viewed as members of a distinct social group," and that the
characteristics of "the claimed group do not define its members."
This reasoning is supported by the record, is in keeping with
governing authority, and displays a reasonable construction of the
statutory category "particular social group."
By his own admission, Mayorga-Vidal's situation is "far
from unique among Salvadoran children" in a country "swarming with
unsupervised, uncared-for young people."
Throughout his brief, he
points to evidence that the familial-based vulnerability to gangrecruitment shared by many young Salvadoran males has a variety of
causes, ranging from parents fleeing the country or dying during
the civil war, to youth who are being raised by a single mother or
are victims of domestic violence.
He further identifies evidence
that many youth are vulnerable to gang recruitment because they are
not well-protected by the community at large.
At bottom, the
evidence supports the conclusion that the gangs are opportunistic
and prey upon vulnerable youth without regard for the particular
cause of weakness.
Not only does the determination of social group status
require an appropriate evidentiary foundation, but also recognition
of a statutorily-protected particular social group requires more
than evidence of a broad social grouping based on a general
immutable characteristic, even if the grouping bears some measure
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of identifiable boundaries.
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See, e.g., Civil v. I.N.S., 140 F.3d
52, 56 (1st Cir. 1998) (despite "ample documentary evidence that
young people in Haiti were not exempted from the general violence
and unrest that occurred in the aftermath of Haiti's military coup,
[Haitian alien] presented no evidence that such persons constitute
anything other than a general demographic segment of the troubled
Haitian population"). This is just the type of evidentiary concern
expressed by the IJ and adopted by the BIA in this case.
Moreover,
for its part, the BIA also relied on In re E-A-G- in which it had
previously rejected a Honduran citizen's request for social group
status for "persons resistant to gang membership (refusing to join
when recruited)," partly because the evidence failed to establish
the existence and visibility of a persecuted group beyond a general
showing of "statistical or actuarial groups," or "artificial group
definitions."
24 I. & N. Dec. at 595.
Reliance on this precedent
was sound.
The
broad
and
diffuse
nature
of
the
petitioner's
purported social grouping also stems from the loose and open-ended
nature of the profile that he urges.
His label of youth "whose
parents are unavailable to protect them" -- i.e., "lacking in
parental protection" -- invites subjective interpretation.
Here,
Mayorga-Vidal's parents left him in the care of his aunt and other
family -- conduct which could be thought to afford him parental
protection through the substitute care of other family members.
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And yet, the aunt apparently neglected this expected task, leaving
him unprotected and vulnerable to gang-recruitment. While some may
view the loss of parental protection as due to his parents leaving
the country, others might justifiably lay blame on the petitioner's
aunt for failing in her substitute parental role.
Leaving to one
side the apparent assumption that Mayorga-Vidal's familial-based
vulnerability would continue once he is back in his homeland, this
one illustration drawn from the record demonstrates that a "lack of
parental protection" inquiry involves too much subjectivity. It is
not hard to paint the myriad difficulties that would be encountered
in attempting to objectively distinguish between vulnerable youths
lacking in supervision and those not.
One wonders where and how
the "lack of parental protection" boundary can be legitimately
drawn based on objective criteria.
In relying on In re S-E-G-, the
BIA decision expresses a similar legitimate concern.
See In re S-
E-G-, 24 I. & N. Dec. at 585 (rejecting protected social group
status to "Salvadoran youths who have resisted gang recruitment,"
reasoning in part that characteristics such as "male children who
lack
stable
families
and
meaningful
adult
protection"
are
"amorphous because 'people's ideas of what those terms mean can
vary'").3
3
The
petitioner
challenges
the
IJ's
conclusion
that
"[t]emporary placement for care with relatives does not equate into
an immutable characteristic which is necessary to establish
membership in a particular social group."
He argues that this
finding signifies a miscalculation about his group profile. We
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Ultimately, the grouping advanced by the petitioner bears
amorphous or boundless features not unlike those that we have
previously
rejected
as
giving
rise
to
a
legally
cognizable
"particular social group." See, e.g., Garcia-Callejas, 666 F.3d at
830 (noting that "[w]e have rejected social groups based solely on
perceived wealth, even if signaling an increased vulnerability to
crime"); Faye, 580 F.3d at 42 (declining the alien's requested
social group
status
for
"adulterers
[having]
a
child
out
of
wedlock" as "too general" and "not sufficiently particular" because
it was too "difficult to identify" when the country's populace
would consider a woman with her experience, i.e., having a child
while married, as part of such a group).
The evidence does not compel a conclusion that there
exists a particular social group comprised of young Salvadoran
males who have resisted gang recruitment and are vulnerable to
gangs from a lack of parental or family protection.
The term
"particular social group," while ambiguous, has an aim, just as do
the
other
statutorily-protected
categories
such
as
race
and
religion. Not every shared characteristic -- including many common
disagree. The IJ's written decision reflects that when assessing
the propriety of the social grouping advocated by Mayorga-Vidal, he
considered what the petitioner classifies as his group's "critical"
immutable characteristics: "his rejection of gang culture[,] his
refusal to join it," and "[h]is status as a child, with absent
parents." The "temporary placement" statement simply reflects the
fact that the proffered social grouping partly rested on the
petitioner's specific circumstance of having been temporarily
placed under the care of other family members.
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life experiences that cannot be undone -- will give rise to a
cognizable social group.
See In re C-A-, 23 I. & N. Dec. at 958
(providing, "A past experience is, by its very nature, immutable,
as it has already occurred and cannot be undone.
However, that
does not mean that any past experience that may be shared by others
suffices
to
define
a
particular
social
group
for
asylum
purposes.").
The BIA's decision to decline to acknowledge protected
status for Mayorga-Vidal's proposed group profile is substantially
supported by the evidence and is a reasonable construction of the
statute. Accordingly, we accept it.
This holding is fatal to both
the petitioner's "social group"-based requests for asylum and for
withholding of removal.4
2. Political Opinion
Mayorga-Vidal next contends that the agency committed
legal error when rejecting his claim of future persecution on
account of his anti-gang, pro-establishment "political opinion."
He argues that the IJ erred in dismissing his claim merely because
4
In his reply brief, the petitioner argues for the first time
that, in recent decisions, the BIA's "particular social group"
analysis has departed from settled law by requiring members of a
proposed social group to demonstrate not only that they share an
immutable characteristic but also that the characteristic is
"literally visible to the naked eye" and recognizable to the
general population of the country from which they have fled. This
delayed argument is waived and we, therefore, decline to address
it.
See Ouk v. Keisler, 505 F.3d 63, 66 n.3 (1st Cir. 2007)
(issues raised by the appellant for the first time in the reply
brief are generally deemed waived).
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he was not a prominent gang critic or member of an organization
aimed at dismantling or suppressing gangs, and that the IJ thereby
failed to recognize that the petitioner had communicated his
political opinion to the gang members by refusing their efforts to
recruit him.
Challenging the BIA's decision, the petitioner
charges that it "engaged in no analysis whatsoever," and simply
followed its precedent without accounting for the "fundamentally
different" evidence before it.
These plaints lack merit.
The IJ found that the gang members' recruitment efforts
did not arise "out of a political animus," and also underscored two
evidentiary points:
first, while the petitioner testified to his
firmly held anti-gang opinion, he presented no evidence that he
expressed this opinion to the gang members during his encounters
with them; and second, he presented no evidence that he had made
his anti-gang opinion publicly known.
We discern no error in this
reasoning.
Political persecution may be grounded on an imputed
political opinion, whether or not the opinion is correctly or
incorrectly attributed to the alien.
F.3d 62, 65 (1st Cir. 1999).
See Vasquez v. I.N.S., 177
Nevertheless, evidence of mere
refusal to join a gang, without more, does not compel a conclusion
that the alleged persecutor viewed the alien's resistance as an
expression of a political opinion.
See In re E-A-G-, 24 I & N.
Dec. at 596; see also INS v. Elias-Zacarias, 502 U.S. 478, 481-82
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(1992) (rejecting notion that an alien's mere resistance to forced
guerilla conscription necessarily expresses a political opinion
hostile to the alleged persecutor). Here, the petitioner points to
no
evidence
compelling
a
conclusion
that
the
gang
members
understood that his mere refusal to join their ranks was an
expression of an anti-gang, pro-establishment political opinion.
See Vasquez, 177 F.3d at 65.
IJ's
finding
that
the
Indeed, the evidence supports the
gang's
strategic rather than political.
recruitment
agenda
was
simply
See id.; see also Tobon-Marin v.
Mukasey, 512 F.3d 28, 31 (1st Cir. 2008) (identifying range of
motives that may drive coercive conscription efforts); cf. Reyes
Beteta
v.
Holder,
406
F.
App'x.
496,
499
(1st
Cir.
2011)
(collecting cases holding that gang action motivated by extortion
is not equivalent to targeting a protected social group).
Finally, contrary to the petitioner's assertion, the BIA
adopted the analysis of the IJ, and the Board properly viewed two
of
its
prior
decisions
Mayorga-Vidal's case.
as
materially
indistinguishable
from
See In re S-E-G-, 24 I. & N. Dec. 579; In re
E-A-G-, 24 I. & N. Dec. 591.
Both prior BIA decisions dismissed
claims of political opinion persecution partly because the record
lacked evidence showing that the gangs would impute an anti-gang
political opinion to the alien's actions in refusing to join their
ranks, or showing that the gangs were motivated by any reason other
than increasing their size and influence.
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In re S-E-G-, 24 I. &
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Document: 00116348782
Page: 21
Date Filed: 03/16/2012
N. Dec. at 589; In re E-A-G-, 24 I. & N. Dec. at 597.
Entry ID: 5626594
The BIA's
reliance on these decisions was sound.
In the end, we discern no error in the agency's finding
that the petitioner failed to establish a well-founded fear of
future persecution on account of his political opinion.5
This
holding also dooms his request for withholding of removal.
Convention Against Torture
To prevail on a CAT claim, an applicant must prove that
he will more likely than not face torture upon repatriation.
See
Ahmed, 611 F.3d at 97-98; see also 8 C.F.R. §§ 1208.16(c)(2).
Torture involves "any act by which severe pain or suffering,
whether physical or mental . . . is intentionally inflicted on a
person . . . by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity."
8 C.F.R. § 1208.18(a)(1); see Limani v.
Mukasey, 538 F.3d 25, 32 (1st Cir. 2008).
It is "an extreme form
of cruel and inhuman treatment and does not include lesser forms of
5
The 2004 IJ decision also found there was no nexus between
the petitioner's encounters with gang members and his purported
membership in a "social group" based on his lack of parental or
family support. The IJ specifically found that the gang members'
conduct "can be attributed to other factors beyond [MayorgaVidal's] identification with this particular group," and that the
gang "threats are more closely linked with the gang's desire to
outnumber its rival gang as opposed to persecuting [Mayorga-Vidal]
for membership in a particular social group." This lack of nexus
finding was endorsed by the BIA in its 2009 decision and provides
additional support for the agency's dismissal of the petitioner's
"social group"-based claim of future persecution.
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cruel, inhuman or degrading treatment or punishment that do not
amount to torture."
8 C.F.R. § 1208.18(a)(2); see also 8 C.F.R. §
1208.18(a)(4)-(6).
Mayorga-Vidal argues that the IJ erroneously rejected his
CAT claim on the sole basis that he failed to prove that the
Salvadoran
government
had
actual
knowledge
of
his
specific
encounters with the gangs and of the specific future torture that
he fears will take place.
According to the petitioner, the IJ's
decision is flawed because government acquiescence only requires
proof that "government officials deliberately accept the group's
activities" such that the gangs may be considered "state actors."6
But see
8
C.F.R.
§
1208.18(a)(7)
("Acquiescence
of
a public
official requires that the public official, prior to the activity
constituting
torture,
have
awareness
of
such
activity
and
thereafter breach his or her legal responsibility to intervene to
prevent such activity.").
Regardless, the petitioner reads the
IJ's reasoning too narrowly. Properly read, the agency decision is
supported by the evidence and legally sound.
6
The petitioner cites to the BIA decision of In re S-V-, 22 I.
&
N. Dec. 1306 (BIA 2000), to support his view of the legal
contours for government acquiescence. This reliance is surprising
given the disdainful treatment of this BIA decision by several
circuits. See, e.g., Hakim v. Holder, 628 F.3d 151, 155-56 (5th
Cir. 2010); Marroquin-Ochoma v. Holder, 574 F.3d 574, 579 n.3 (8th
Cir. 2009); McIntosh v. I.N.S., 247 F. App'x 226, 227-28 (2d Cir.
2007); Silva-Rengifo v. Att'y Gen., 473 F.3d 58, 65-70 (3d Cir.
2007); Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006); Zheng
v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003).
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The IJ determined that the petitioner failed to establish
the government acquiesced to the gang's threatening conduct toward
him
in
the
past,
or
that
it
would
do
so
in
the
future.
Specifically addressing Mayorga-Vidal's past gang encounters, the
IJ noted that he "did not report the threats to the police or any
other
governmental
agency."
This
observation
supports
the
conclusion that the Salvadoran government lacked actual knowledge
of the gang's specific conduct toward Mayorga-Vidal.
Coupled with
other evidence reviewed by the IJ, it also supports the conclusion
that the petitioner failed to show that the government would
acquiesce to torture by gangs.
The IJ considered evidence that the government has been
taking concrete measures to combat gang violence. The record shows
that the government established an anti-gang task force, deploying
military
personnel
authorities
to
arrested
high
many
crime
areas,
individuals
and
pursuant
also
to
that
the
anti-gang
legislation. Although there was evidence some police officers have
engaged in gang-related activity, the record also supports the
conclusion that such individuals were arrested for their actions,
expelled from the police force, or otherwise held responsible for
their misconduct.
El Salvador's efforts at managing gang activity have not
been completely effectual.
The record, however, does not compel a
conclusion that the government has acquiesced in gang activities.
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Cf. Mendez-Barrera, 602 F.3d at 28 (holding that country conditions
reports, standing alone, failed to establish that the petitioner
would face a likelihood of government-sanctioned torture); Faye,
580 F.3d at 42 (affirming the agency's dismissal of a CAT claim
where
the
alien
failed
to
report
the
domestic
abuse
to
the
authorities or to otherwise display a sufficient link to the
government); Amilcar-Orellana v. Mukasey, 551 F.3d 86, 92 (1st Cir.
2008) (affirming the agency's dismissal of a Salvadoran alien's CAT
claim because substantial evidence supported the BIA's conclusion
that the government "is trying as best it can to control the
gangs").
Accordingly, we must accept the BIA's determination that
the petitioner has not established a likelihood of torture if he is
repatriated.
III. Conclusion
After
careful
review
of
decisions, we deny the petition.
-24-
the
record
and
the
agency
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