Julio Ernesto Martinez v. Eric Holder, Jr.

Filing

REVISED OPINION filed [999285208] amending and superseding prior opinion Originating case number: A095-042-745 Copies to all parties.. [12-2424]

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REVISED OPINION
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2424

JULIO ERNESTO MARTINEZ, a/k/a Julio Martinez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
------------------------AMERICAN IMMIGRATION LAWYERS ASSOCIATION,
Amicus Supporting Petitioner.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued:

October 31, 2013
Revised Opinion Filed:

Decided:

January 23, 2014

January 27, 2014

Before NIEMEYER and WYNN, Circuit Judges, and Louise W.
FLANAGAN, United States District Judge for the Eastern District
of North Carolina, sitting by designation.

Petition granted in part and denied in part and case remanded
for further proceedings by published opinion.
Judge Niemeyer
wrote the opinion, in which Judge Wynn and Judge Flanagan
joined.

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ARGUED:
Maureen A. Sweeney, UNIVERSITY OF MARYLAND CAREY LAW
SCHOOL, Baltimore, Maryland, for Petitioner.
Oluremi da RochaAfodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Benjamin Richard Casper, UNIVERSITY OF
MINNESOTA SCHOOL OF LAW, Minneapolis, Minnesota, for Amicus
Supporting Petitioner.
ON BRIEF:
Alison D. Yoder, Student
Attorney, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW, Baltimore,
Maryland, for Petitioner.
Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, Blair T. O'Connor, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Andres
C. Benach, BENACH RAGLAND L.L.P., Washington, D.C.; Katherine
Evans, CASPER & EVANS, P.A., Minneapolis, Minnesota; Samuel
Johnson, Student Attorney, Holden Turner, Student Attorney,
Interprofessional Center For Counseling & Legal Services,
UNIVERSITY OF ST. THOMAS, Minneapolis, Minnesota, for Amicus
Supporting Petitioner.

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NIEMEYER, Circuit Judge:
Julio Ernesto Martinez, a citizen of El Salvador, who is
subject to removal from the United States because he entered
without authorization and, while in the United States, was given
a judgment of probation before verdict for marijuana possession,
requests

that

the

Attorney

General

withhold

removal

under

8

U.S.C. § 1231(b)(3), which places restrictions on removal to
countries where the alien’s life or freedom would be threatened.
He

claims

Salvatrucha

that

as

a

former

gang

(“MS-13”),

member

he

is

a

of

the

member

of

violent
a

Mara

“particular

social group,” as would qualify for withholding of removal under
§ 1231(b)(3), and that he would be killed if sent back to El
Salvador because he renounced his membership in MS-13.
these

circumstances,

Convention

Against

he

also

Torture

requests

(“CAT”),

relief

contending

Based on

under

the

that

the

government of El Salvador would acquiesce in his torture at the
hands of MS-13.
The immigration judge (“IJ”) and the Board of Immigration
Appeals (“BIA”) rejected Martinez’s arguments, concluding that
being a “former member[] of a gang in El Salvador” is not an
“immutable
could

characteristic”

qualify

for

of

a

particular

withholding

of

social

removal,

group

that

since

the

characteristic “result[ed] from the voluntary association with a
criminal gang.”

The IJ and the BIA also found that Martinez’s
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claim for relief under the CAT was not supported by sufficient
evidence.
We

conclude

that

Martinez’s

proposed

particular

social

group of former MS-13 members from El Salvador is immutable for
withholding

of

removal

purposes

in

that

the

only

way

that

Martinez could change his membership in the group would be to
rejoin MS-13.

We hold therefore that the BIA erred in its

ruling declining -- on immutability grounds -- to recognize the
particular

social

group

of

former

members

renounced their membership in the gang.

of

MS-13

who

have

Accordingly, we reverse

that ruling on immutability and remand Martinez’s application
for withholding of removal to permit the BIA to consider whether
Martinez’s
requirements

proposed
for

social

group

withholding

of

satisfies

removal.

the

On

other

Martinez’s

application for protection under the CAT, we affirm.

Despite

Martinez’s claim to the contrary, we conclude that the IJ and
the BIA sufficiently considered the relevant evidence.

I
Martinez was born in San Miguel, El Salvador, in 1980 and
lived there until he entered the United States unlawfully in
2000.
In March 2006, when Martinez was stopped while driving his
friend’s car with a malfunctioning brake light, the police found

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a

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marijuana

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blunt

in

a

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dashboard

compartment

of

the

car.

Although Martinez denied any connection with the marijuana, he
pleaded to probation before judgment in December 2007.
Even before Martinez’s marijuana charge was resolved, the
Department

of

Homeland

proceedings

against

him

Security
based

on

had
his

initiated
illegal

removal

entry.

It

subsequently closed the proceedings because Martinez agreed to
serve as a confidential informant, assisting the FBI in making
controlled

purchases

of

drugs

and

fake

green

cards.

When

Martinez was stopped again in May 2011 for a traffic offense,
the

Department

of

Homeland

Security

recalendared

the

removal

proceedings, concluding that Martinez was “no longer useful as a
confidential

informant.”

In

the

reopened

proceedings,

the

government added a charge that Martinez was subject to removal
as

an

alien

convicted

of

a

controlled

substance

offense.

Martinez conceded that he was subject to removal, but he sought
relief

from

removal

on

the

ground

that

his

life

would

be

endangered should he be returned to El Salvador.
At the hearing before the IJ, Martinez testified that his
stepfather died when he was 12 years old and that, at the age of
14, he befriended a group of older boys who had also lost family
members.
together.

The group went to parties, drank, and smoked marijuana
Martinez later learned, however, that some of the

boys who had recruited him into this group were also associated
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with MS-13, although the group itself had no association with
that gang.

This status changed, however, when several members

of MS-13 were deported from the United States and arrived in
Martinez’s

neighborhood.

Martinez’s

group

was

then

“incorporated” into the larger MS-13 gang structure, which, to
some extent, was involuntary.
MS-13

arrivals

informed

him

Martinez testified that the new
and

his

friends

that

they

were

“already . . . part of MS-13” and that they had no option but to
join the gang.

Martinez, who was now 15, agreed to undergo MS-

13’s initiation rite of a beating that lasts 13 seconds.
Soon after Martinez’s induction into MS-13, the deportees
killed the original leaders of Martinez’s group of friends and
became the gang’s new leaders.

They ordered Martinez to get

tattoos signifying his allegiance to MS-13, which he did.

They

also ordered him to extort money from members of the community,
which

he

refused

to

do.

Because

of

his

disobedience,

leaders of the gang beat Martinez on a weekly basis.

the

Martinez

testified that he never “committed any crimes for the gang,”
although he conceded that he did participate once in the beating
of

a

fellow

Thereafter,
disciplinary

gang

member

however,

he

beatings,

for
also

which

failing
refused

to
to

consequently

further beatings.

6

follow
join

in

subjected

orders.
those
him

to

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held

weekly

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meetings

for

members

in

the

local

community and monthly general meetings, which were attended by
thousands of members from across El Salvador.

Martinez attended

most

when

of

these

attend.

meetings,

and

he

was

beaten

he

did

not

At the meetings, the leaders would discuss who was part

of the gang and who was not.

They also informed the membership

as to who had the “green light,” which indicated that the member
was to be executed.

A principal reason for receiving the green

light was attempting to leave MS-13.

Indeed, two of Martinez’s

friends who attempted to leave the gang were killed.
By
“tired

the
of

time
[the]

Martinez

reached

beatings”

that

the
he

age

had

of

been

16,

he

became

receiving

for

refusing to obey the leaders, and he decided to leave MS-13.
Accordingly, he stopped attending its meetings.

Several weeks

later,

“Psycho,”

he

encountered

his

local

asked him where he had been.

group

leader,

who

When Martinez told Psycho that he

wanted to leave the gang, Psycho responded that there was “only
one

way

to

get

out,”

implying

by

death.

When

Martinez

nonetheless insisted that he was quitting, gang members beat him
and

stabbed

him,

leaving

him

for

dead.

Martinez

survived,

however, and, after leaving the hospital, went to live with a
cousin in Intipucá, which is about an hour’s drive south of San
Miguel.

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Intipucá,

Martinez

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covered

house only to go to work.

his

tattoos

and

left

his

Two months later, however, MS-13

members found him and shot at him from a car.

Multiple bullet

fragments struck Martinez, and he was again hospitalized for
several weeks.

After recovering, Martinez went into hiding with

friends and family members.
MS-13 members once again found Martinez and once again shot
at

him.

This

time

he

managed

to

escape

without

injury.

Martinez left El Salvador to come to the United States in 2000,
entering without permission.

He believes that if he were to

return to El Salvador, MS-13 members would kill him.

Indeed, he

claims that while he has been in the United States, he has
refrained from going places where he might meet an MS-13 member,
such as Spanish nightclubs.
Based on his fear of bodily harm at the hands of MS-13,
Martinez sought several forms of relief from removal.
that

under

8

U.S.C.

withholding

of

removal

account

of

his

§

1231(b)(3),

because

membership

in

his

the

he

was

eligible

for

life

was

threatened

on

particular

former gang members from El Salvador.

He argued

social

group

of

He also argued that he

qualified for protection under the CAT because the Salvadoran
government would acquiesce in his torture should he be removed.
In

addition,

he

applied

for

temporary

protected

status.

Finally, as an alternative, he requested voluntary departure.
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Following a hearing, the IJ found Martinez credible but
nonetheless denied him all relief except for his application for
voluntary departure.
opinion,

also

On appeal, the BIA, in a single-member

rejected

Martinez’s

request

for

relief.

With

respect to his § 1231(b)(3) claim, the BIA defined Martinez’s
proposed

social

group

as

“former

members

of

a

gang

in

El

Salvador” and concluded that Martinez had not shown that this
group

had

a

“common,

immutable

characteristic”

because

the

“characteristic result[ed] from the voluntary association with a
criminal gang.”
Martinez

had

The BIA also affirmed the IJ’s conclusion that

not

demonstrated

that

the

Salvadoran

government

would acquiesce in his torture.
From the BIA’s final order of removal dated October 24,
2012, Martinez filed this petition for review.

II
“The courts of appeals are granted jurisdiction to review
final orders of removal, 8 U.S.C. § 1252(a)(1), and final orders
in cases such as the one before us are generally made by the BIA
following

appeal

Ashcroft,

378

from

F.3d

the

361,

decision

366

(4th

of

Cir.

the

IJ.”

2004);

Camara

accord

Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992).

v.

Huaman-

Situations

may arise when it is appropriate for this Court to review an
IJ’s opinion, such as when the BIA adopts the IJ’s decision

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without an opinion of its own, see Camara, 378 F.3d at 366, or
when the BIA adopts the IJ’s opinion and supplements it with
additional reasoning, see Barahona v. Holder, 691 F.3d 349, 353
(4th Cir. 2012).

In both such cases, the BIA has determined

that the IJ’s opinion will become -- in whole or in part -- the
final order of removal subject to review.
In
without

this

case,

adopting

therefore,

however,
the

constitutes

IJ’s
the

the

BIA

issued

opinion.
final

The

order

its

own

BIA’s
of

opinion

decision,

removal,

and

accordingly we review that opinion and not the opinion of the
IJ. 1

1

This Court has recently purported to review the decisions
of both the IJ and the BIA whenever they both issue opinions.
See, e.g., Singh v. Holder, 699 F.3d 321, 327 (4th Cir. 2012)
(“When, as here, the Board and an IJ issue decisions in a case,
we review both on appeal”); Kourouma v. Holder, 588 F.3d 234,
239-40 (4th Cir. 2009) (“When the BIA and the immigration judge
both issue decisions in a case, we review both decisions upon
appeal”).
We take those cases, however, to involve BIA
decisions that incorporated some part of the IJ’s opinion as
part of the BIA’s final order. See Camara, 378 F.3d at 366;
Huaman-Cornelio, 979 F.2d at 999 (“As a court of appeals, we
review only the findings and order of the BIA, not those of the
IJ. Section 106(a) of the Immigration and Nationality Act vests
us only with the jurisdiction to review ‘final orders of
deportation.’
Final
orders
are
entered
only
after
all
administrative remedies have been exhausted; thus final orders
in deportation proceedings come from the BIA, the highest
administrative tribunal” (citation omitted)).
Otherwise, they
would conflict with 8 U.S.C. § 1252(a)(1), which provides that
we may only review a “final order of removal.” An alien facing
removal may appeal to the BIA as of right.
8 C.F.R. §§
1003.1(b)(3), 1003.38(a), 1240.15.
The BIA reviews the IJ’s
legal conclusions de novo and its factual conclusions for clear
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Martinez’s

particular

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challenge

to

the

BIA’s

opinion

in

this case is directed against the BIA’s determination that, for
purposes

of

§

1231(b)(3),

“former

members

of

a

gang

in

El

Salvador” are not a “particular social group” as that term is
used in the statute, because members of the group do not have “a
common,

immutable

characteristic

where

that

characteristic

results from voluntary association with a criminal gang.”

The

parties agree that this presents us with a question of law.
We

review

interpretation
novo.

of

BIA’s
the

legal

INA

and

determinations,
any

attendant

including

regulations,

its
de

See Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th

Cir. 2008).
Chevron

the

But in conducting our review, we generally give

deference

to

the

BIA’s

statutory

interpretations,

recognizing that Congress conferred on the BIA decisionmaking

error. Id. § 1003.1(d)(3). As such, “there is no ‘final order’
until the Board acts.”
Cruz-Funez v. Gonzales, 406 F.3d 1187,
1190 (10th Cir. 2005).
Thus, where the BIA issues an opinion
without adopting the IJ’s opinion in whole or in part, this
Court can only review the BIA’s opinion.
Every other circuit
has come to the same conclusion. Romilus v. Ashcroft, 385 F.3d
1, 5 (1st Cir. 2004); Yan Chen v. Gonzales, 417 F.3d 268, 271
(2d Cir. 2005); Brandao v. Att’y Gen., 654 F.3d 427, 429 n.4 (3d
Cir. 2011); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997);
Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007);
Begzatowski v. INS, 278 F.3d 665, 669 n.5 (7th Cir. 2002); Aung
Si Thu v. Holder, 596 F.3d 994, 998 (8th Cir. 2010); Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006); Uanreroro v.
Gonzales, 443 F.3d 1197, 1203-04 (10th Cir. 2006); Rodriguez v.
U.S. Att’y Gen., 735 F.3d 1302 (11th Cir. 2013) (per curiam);
Gutierrez-Rogue v. INS, 954 F.2d 769, 772 (D.C. Cir. 1992).
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power to decide such questions of law.
Aguirre,

526

U.S.

415,

424

(1999);

See INS v. Aguirre-

Chevron,

U.S.A.,

Inc.

v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
This is true even when the BIA “gives ambiguous statutory terms
‘concrete

meaning

adjudication.’”
v.

a

process

of

case-by-case

Aguirre-Aguirre, 526 U.S. at 425 (quoting INS

Cardoza-Fonseca,

deference,

through

however,

480
is

U.S.

421,

accorded

448
only

(1987)).
when

an

Chevron
“agency’s

interpretation is rendered in the exercise of [its] authority
[to make rules carrying the force of law].”
Co.

v.

Barnhart,

472

F.3d

148,

166

(4th

A.T. Massey Coal
Cir.

2006)

(citing

United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)).
not,

then

the

interpretation

is

“beyond

the

Chevron

If

pale.”

Mead, 533 U.S. at 234.
Because the decision in this case was issued by a single
BIA member, it does not constitute a precedential opinion, as a
precedential opinion may only be issued by a three-member panel.
See 8 C.F.R. § 1003.1(g) (“By majority vote of the permanent
Board members, selected decisions of the Board rendered by a
three-member panel or by the Board en banc may be designated to
serve as precedents in all proceedings involving the same issue
or

issues”

(emphasis

added));

see

also

id.

§ 1003.1(e)(6)

(“Cases may only be assigned for review by a three-member panel
if the case presents one of these circumstances . . . (ii) the
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establish

regulations,

or

precedent

procedures

Pg: 13 of 24

construing
. . .”).

the

When

meaning
issuing

of
a

laws,

single-

member, nonprecedential opinion, the BIA is not exercising its
authority to make a rule carrying the force of law, and thus the
opinion is not entitled to Chevron deference.

Accord Arobelidze

v. Holder, 653 F.3d 513, 520 (7th Cir. 2011); Carpio v. Holder,
592 F.3d 1091, 1097 (10th Cir. 2010); Quinchia v. U.S. Att’y
Gen., 552 F.3d 1255, 1258 (11th Cir. 2008); Rotimi v. Gonzales,
473 F.3d 55, 57 (2d Cir. 2007); Garcia–Quintero v. Gonzales, 455
F.3d 1006, 1012 (9th Cir. 2006); see also De Leon-Ochoa v. Att’y
Gen., 622 F.3d 341, 350 (3d Cir. 2010) (agreeing with the Ninth
Circuit

that

whether

an

precedential
agency

value

decision

is

is

the

accorded

key

determinant

Chevron

in

deference).

Therefore, the BIA’s interpretation of § 1231(b)(3) in the case
before us is not entitled to Chevron deference.
That
opinion

is

any

not

to

say

that

consideration.

we

Even

will
in

not

the

accord

absence

the
of

BIA’s

Chevron

deference, we have concluded that we can rely on the agency’s
opinions

as

a

“body

of

experience

and

informed

which we may “properly resort for guidance.”

judgment”

to

A.T. Massey Coal,

472 F.3d at 168 (quoting Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944)).

But even that modest deference depends upon “the

thoroughness evident in [the BIA’s] consideration, the validity
of

its

reasoning,

its

consistency
13

with

earlier

and

later

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pronouncements, and all those factors which give it power to
persuade.”

Id. (quoting Skidmore, 323 U.S. at 140).

III
While Martinez agrees that his circumstances subject him to
an order of removal, he claims that the BIA erred in denying him
relief under § 1231(b)(3)(A), which provides in relevant part
that the Attorney General may not remove an alien, even though
otherwise removable, “if the Attorney General decides that the
alien’s life or freedom would be threatened in [the country of
removal]

because

of

the

alien’s

race,

religion,

nationality,

membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A) (emphasis added); see also Camara, 378
F.3d at 367. 2

The statute does not define “particular social

group,” and there is little legislative history on the matter.
See Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993).
has,

however,

meeting

three

defined

“particular

criteria:

“(1)

2

social
its

group”

members

as

share

The BIA
a

group

common,

This exception to removal is limited, however, and the
alien may nonetheless be removed if (1) he engaged in
persecution on account of an individual’s “race, religion,
nationality, membership in a particular social group, or
political opinion”; (2) he has been convicted of a “particularly
serious crime” in the United States and is a “danger to the
community”; (3) “there are serious reasons to believe [he]
committed a serious nonpolitical crime outside the United
States”; or (4) “there are reasonable grounds to believe that
[he] is a danger to the security of the United States.”
8
U.S.C. § 1231(b)(3)(B).
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immutable characteristics, (2) the common characteristics give
its members social visibility, and (3) the group is defined with
sufficient particularity to delimit its membership.”
Holder,

629

F.3d

440,

447

(4th

Cir.

2011)

Lizama v.

(emphasis

added).

While we have endorsed both the immutability and particularity
criteria, see id. (affirming under both of these criteria), we
have

explicitly

declined

to

determine

whether

the

social

visibility criterion is a reasonable interpretation of the INA,
see Zelaya v. Holder, 668 F.3d 159, 165 n.4 (4th Cir. 2012),
although

we

have

reviewed

the

BIA’s

application

of

this

criterion, see Temu v. Holder, __ F.3d __, No. 13-1192, 2014 WL
169932 (4th Cir. Jan. 16, 2014).
To meet the “immutability” criterion -- the only one at
issue in this petition for review -- members of a particular
social

group

must

share

a

characteristic

that

they

“either

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

to

their

individual

identities

or

consciences.”

Zelaya, 668 F.3d at 165 (quoting In re Acosta, 19 I. & N. Dec.
211, 233 (B.I.A. 1985), overruled in part on other grounds by In
re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987)) (internal
quotation

mark

omitted).

The

BIA

has

explained

that

“[t]he

shared characteristic might be an innate one such as sex, color,
or kinship ties, or in some circumstances it might be a shared

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experience

ownership.”

of

as

former

military

leadership

or

land

Acosta, 19 I. & N. Dec. at 233 (emphasis added).

Martinez
members

such

Pg: 16 of 24

contends
a

gang

that

in

El

his

proposed

Salvador”

group

meets

the

of

“former

immutability

requirement because he cannot change his status as a former gang
member except by rejoining MS-13, which he claims would violate
fundamental precepts of his conscience.
Neither

the

BIA

nor

the

government

seriously

contests

Martinez’s argument that he cannot change his status as a former
gang member.

Rather, the BIA held that Martinez failed to show

that

“a

he

was

characteristic

member
where

of

that

a

group

with

a

characteristic

voluntary association with a criminal gang.”

common,
results

immutable
from

the

(Emphasis added).

And the government amplifies this position, asserting that “past
‘antisocial’ behavior is not an attribute or shared experience
that warrants protection under this country’s refugee laws.”
At the outset, we agree that Martinez’s membership in a
group that constitutes former MS-13 members is immutable.
Acosta,

19

I.

&

N.

Dec.

at

233

(listing

“former

See

military

leadership” as a prototypical particular social group); Gatimi
v. Holder, 578 F.3d 611, 615 (7th Cir. 2009) (former member of a
violent political group); Lukwago v. Ashcroft, 329 F.3d 157, 178
(3d Cir. 2003) (former child soldier).

Martinez has presented

extensive evidence that violence and criminality pervade MS-13,
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and we conclude, as has the Seventh Circuit, that it would be
“perverse” to interpret the INA to force individuals to rejoin
such gangs to avoid persecution.

See Ramos v. Holder, 589 F.3d

426, 430 (7th Cir. 2009); see also Urbina-Mejia v. Holder, 597
F.3d

360,

366

(6th

Cir.

2010)

(holding

that

former

gang

membership is an immutable characteristic). 3
The
whose

government

members

had

criminal conduct.

argues

that

formerly

the

INA

participated

disqualifies
in

groups

antisocial

or

Attaching this condition to qualification as

3

While the First Circuit has recently held that former gang
members are not a cognizable particular social group under
§ 1231(b)(3), see Cantarero v. Holder, 734 F.3d 82, 85-87 (1st
Cir. 2013), we do not find its reasoning persuasive here.
First, Cantarero is distinguishable from the present case
inasmuch as the court there applied Chevron deference to the
BIA’s decision and thus only determined that the BIA’s
interpretation
of
the
INA
was
not
“unreasonable
or
impermissible.” Id. at 85-86. Second, as we explain below, we
are not persuaded by Cantarero’s proposition that “Congress did
not mean to grant asylum to those whose association with a
criminal syndicate has caused them to run into danger.” Id. at
86. Congress was explicit in outlining the transgressions that
could
disqualify
an
alien
from
withholding
of
removal
protection, see § 1231(b)(3)(B), and “associat[ing] with a
criminal syndicate” is not on that list. Third, we are dubious
of the Cantarero court’s dire prediction that our holding today
will “offer an incentive for aliens to join gangs here as a path
to legal status.” 734 F.3d at 86. For this trick to work, the
alien would need to join a criminal gang, abandon it, and then
persuade the IJ that his “life . . . would be threatened” as a
result should he be removed.
8 U.S.C. § 1231(b)(3)(A).
The
facts of the present case illustrate the horrors gang members
face when they turn their backs on their comrades.
We doubt
that many aliens would risk their lives in this manner, and we
are confident in the ability of immigration judges to ferret out
charlatans who feign such danger.
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a “particular social group,” however, is untenable as a matter
of statutory interpretation and logic.
First,

nothing

categorically
social

in

cannot

group”

the

be

members

because

they

statute

have

antisocial or criminal conduct.
only

a

aliens

subset
from

of

antisocial

withholding

of

of

suggests
a

that

cognizable

previously

persons

“particular

participated

in

Rather, Congress has identified

conduct
removal,

that

would

defined

by

bar
the

eligible
alien’s

engaging in past persecution, committing a particularly serious
crime, or presenting a danger to the security of the United
States.

See 8 U.S.C. § 1231(b)(3)(B).

But Congress “has said

nothing about barring former gang members.”

See Ramos, 589 F.3d

at 430.
Moreover,

in

arguing

for

its

interpretation

that

a

particular social group may not include members who engaged in
past antisocial or criminal conduct, the government focuses on
the former status of membership in a gang, failing to recognize
a distinct current status of membership in a group defined by
gang apostasy

and

opposition

to

violence.

For

support,

the

government relies heavily on the decision in Arteaga v. Mukasey,
511

F.3d

940

(9th

Cir.

2007),

as

did

the

BIA.

That

case,

however, is materially distinguishable inasmuch as it affirmed
the BIA’s denial of withholding of removal from an alien who was
“still a gang member,” albeit no longer “active.”
18

Id. at 945.

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The court noted that gang membership should not be protected if
the

alien’s

shared

past

experience

as

“includes violent criminal activity.”
“We

cannot

conclude

that

a

member

Id.

Congress,

of

the

gang

The court continued,
in

offering

refugee

protection for individuals facing potential persecution through
social group status, intended to include violent street gangs
who assault people and who traffic in drugs and commit theft.”
Id. at 945-46.
We agree that current gang membership does not qualify as
an

immutable

characteristic

of

a

particular

social

support withholding of removal under § 1231(b)(3).

group

to

It is not

the case that current gang members “cannot change” their status
as gang members, as they can leave the gang.
Dec. at 233.
to

change

Nor do we think that they “should not be required

because

[gang

membership]

is

individual identities or consciences.”
“pervert

the

Acosta, 19 I. & N.

manifest

humanitarian

fundamental
Id.

purpose

to

their

To so hold would
of

the

statute.”

Arteaga, 511 F.3d at 946.
But Martinez is not a current gang member.

Rather, the

social group he has identified is defined by rejection of gang
membership and its attendant violence.

Martinez asserts that

his repudiation of gang membership, along with its violence and
criminality,

is

a

critical

aspect

should not be forced to change.

of

his

We agree.
19

conscience

that

he

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BIA

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alternatively,

Pg: 20 of 24

albeit

briefly,

justified

its

rejection of Martinez’s claim for withholding of removal on the
ground that the threats to his life were only an aspect of
internal gang discipline, citing In re McMullen, 19 I. & N. Dec.
90 (B.I.A. 1984).

McMullen was a member of the Provisional

Irish Republican Army (“PIRA”), and, while a member, he refused
to carry out a kidnapping job because he feared that the job
would not

be

successful.

Id.

at

94.

He

claimed

that

his

refusal to participate in the operation constituted a political
opinion for which the PIRA would persecute him if he returned to
Ireland.

Id.

The BIA found that McMullen’s refusal to commit

the kidnapping for fear of being caught “does not constitute [a]
political opinion.”

Id. at 95.

use

the

of

violence

. . . .

by

Having

elected

And it noted that the “internal

PIRA

does

to

not

constitute

participate

in

persecution

the

PIRA,

with

knowledge of its internal disciplinary policies, [McMullen] is
not now in a position to complain.”
The

BIA’s

reliance

on

In

re

Id.
McMullen

in

this

case

was

misplaced in that McMullen was still a member of the PIRA, and
his

fears

arose

from

a

disagreement

over

the

wisdom

of

a

particular criminal endeavor.

In rejecting his claim, the BIA

emphasized

assumed

that

McMullen

had

this

danger

inherent in membership when he joined the PIRA.

as

a

risk

Martinez, on

the other hand, withdrew from the MS-13 gang; he rejected the
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organization,
targeted
members

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its

violence,

because
of

of

MS-13,

his

and

Pg: 21 of 24

and

its

purposes.

membership

the

danger

rejection of gang membership.

in

he

the

faces

He

group
is

is
of

based

being
former
on

his

See In re C-A, 23 I. & N. Dec.

951, 958-59 (B.I.A. 2006) (distinguishing between threats that
inhere as a part of one’s profession and persecution as a result
of being a former member of that profession).
Accordingly, we conclude that the BIA erred as a matter of
law

in

group”

its
by

immutable

interpretation
holding

that

characteristic

of

the

former
of

a

phrase

gang

“particular

membership

particular

is

social

social
not

an

group

for

purposes of § 1231(b)(3).
Because we only reach the “immutability” criterion and do
not address
remand

any

other

Martinez’s

§ 1231(b)(3)(A)

for

criteria

withholding
further

that

might

of

proceedings

be

removal

applicable,
claim

consistent

with

we

under
this

opinion. 4

4

While the “particularity” criterion remains an open
question for resolution on remand, we note that the Seventh
Circuit in Ramos, 589 F.3d at 431, did distinguish the
particularity of the class of inactive gang members at issue in
Arteaga from the class of former gang members that it was
considering.
We also note that we have yet to affirm the
statutory authority for the “social visibility” criterion.
See
Zelaya, 668 F.3d at 165 n.4; cf. Temu v. Holder, __ F.3d __, No.
13-1192, 2014 WL 169932, at *4-6 (4th Cir. Jan. 16, 2014)
(finding that the BIA had applied the “social visibility”
criterion too restrictively). Assuming without deciding that it
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IV
Martinez

also

contends

that

he

was

erroneously

denied

protection under the CAT because, if he were returned to El
Salvador, “the Salvadoran police [would] likely acquiesce in or
turn a willfully blind eye to the threat that [he would] be
tortured.”
that

He argues that the BIA ignored relevant evidence

supports

his

application

for

CAT

protection

--

in

particular, the evidence that “the police do not take seriously
what they perceive as gang-on-gang violence” and the evidence
that he “feared reporting the [gang] attacks to police.”
“To warrant CAT protection, an alien must prove, first,
that it is more likely than not that he will be tortured if
removed to the proposed country of removal and, second, that
this torture will occur at the hands of government or with the

is valid, however, we note that the BIA did not consider that
issue at all and the IJ failed to provide a sufficient
explanation for why the group of former gang members is
insufficiently socially visible for § 1231(b)(3) purposes.
See
SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[T]he process of
review requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained”).
The only relevant case cited by the IJ, In re S-E-G-, 24 I. & N.
Dec. 579, 582 (B.I.A. 2008), concerned non-gang members who
resisted gang recruitment efforts.
In the present case, there
was evidence that MS-13 held meetings in which the leadership
listed individuals who had the “green light” for leaving the
gang. On remand, the BIA should, if it applies this criterion,
explain why such evidence does not distinguish the present case
from the facts of In re S-E-G-.
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consent or acquiescence of government.”

Turkson v. Holder, 667

F.3d 523, 526 (4th Cir. 2012) (emphasis added) (citing 8 C.F.R.
§ 1208.16(c)(2)).

“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.” 8 C.F.R. § 1208.18(a)(7).
In this case, the IJ concluded that Martinez had not made
the

necessary

showing,

finding

that

because

Martinez

“never

reported the shooting or other threats to his life to the police
in

El

Salvador”

and

because

“country

condition

information

reflects that government officials in El Salvador are taking
some steps to address the difficult problem of gang violence
there,” he failed to show that the Salvadoran government would
acquiesce in his future torture.
grounds,

holding

that

“respondent

The BIA affirmed on similar
cannot

complain

that

the

Government did not prosecute his attackers because he never made
a report” and noting that the “Government of El Salvador has
made

attempts

to

reduce

or

control

gang

activity,”

citing

several reports about country conditions in El Salvador.
We presume that, in reaching these conclusions, the IJ and
the BIA reviewed the evidence presented to them and made their
decisions based on the relevant evidence.

See Larita-Martinez

v. INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000) (“[A]n alien
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attempting to establish that the Board violated his right to due
process by failing to consider relevant evidence must overcome
the presumption that it did review the evidence”); Man v. INS,
69 F.3d 835, 838 (7th Cir. 1995) (“[A]bsent evidence to the
contrary, we assume that the BIA reviewed the specific findings
of the immigration judge in light of the record”).
Martinez’s
country

claim

conditions

supported

by

the

that

evidence
record.

the

BIA

ignored

“the

in

the

record”

is

In

the

first

extensive

simply

instance,

the

not
IJ

recognized that “[Martinez] th[ought] that government officials
in El Salvador would look at him as if he still belonged to the
gang.”

She also made note of the “prevalence of gang violence

in El Salvador” and that “country condition information reflects
that government officials in El Salvador are taking some steps
to address the difficult problem of gang violence there.”

The

BIA similarly noted that El Salvador has attempted to control
gang violence, even citing the very reports that Martinez now
claims the BIA ignored.

It is apparent that the IJ and the BIA

reviewed the relevant evidence before them.

Accordingly, we

affirm the BIA’s decision to deny relief under the CAT.

PETITION FOR REVIEW GRANTED IN PART AND
DENIED IN PART; REMANDED FOR FURTHER
PROCEEDINGS

24