Filed: Jul. 23, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _ No. 13-1491 _ JORGE SOLOMON-MEMBRENO, a/k/a Jorge Mauricio Membreno; FATIMA MARLENE VILLANUEVA-MEMRENO, Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. _ On Petition for Review of an Order of the Board of Immigration Appeals _ Argued: May 14, 2014 Decided: July 23, 2014 _ Before NIEMEYER and WYNN, Circuit Judges, and Robert J. CONRAD, Jr., United States District Judge for the Western District of North Carolina
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _ No. 13-1491 _ JORGE SOLOMON-MEMBRENO, a/k/a Jorge Mauricio Membreno; FATIMA MARLENE VILLANUEVA-MEMRENO, Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. _ On Petition for Review of an Order of the Board of Immigration Appeals _ Argued: May 14, 2014 Decided: July 23, 2014 _ Before NIEMEYER and WYNN, Circuit Judges, and Robert J. CONRAD, Jr., United States District Judge for the Western District of North Carolina,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_____________
No. 13-1491
_____________
JORGE SOLOMON-MEMBRENO, a/k/a Jorge Mauricio Membreno;
FATIMA MARLENE VILLANUEVA-MEMRENO,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
_____________
On Petition for Review of an Order of the Board of Immigration
Appeals
_____________
Argued: May 14, 2014 Decided: July 23, 2014
_____________
Before NIEMEYER and WYNN, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
______________
Affirmed by unpublished opinion. Judge Conrad wrote the opinion
in which Judge Niemeyer and Judge Wynn joined. Judge Wynn wrote
a concurring opinion.
______________
ARGUED: Ivan Yacub, Falls Church, Virginia, for Petitioners.
Liza S. Murcia, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondents. ON BRIEF: Rachel Petterson, LAW OFFICE
OF IVAN YACUB, Falls Church, Virginia, for Petitioners. Stuart
F. Delery, Assistant Attorney General, Anthony C. Payne, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division,
Washington D.C., for Respondent.
_____________
CONRAD, District Judge:
Petitioners Jorge Solomon-Membreno (Jorge) and Fatima
Marlene Villanueva-Membreno (Fatima) (collectively: the
siblings) are siblings who are natives and citizens of El
Salvador. They appeal a final order from the Board of
Immigration Appeals (BIA) affirming denial of their claims for
asylum and withholding of removal by an Immigration Judge (IJ).
Though related, the claims of the siblings are not identical.
Jorge claims that he fears violent persecution by gang members
because of his membership in a self-described social group of
“young Salvadoran students who expressly oppose gang practices
and values and wish to protect their family against such
practices.” Fatima bases her claim on her membership in a
social group composed of “young female students who are related
to an individual who opposes gang practices and values.”
Focusing primarily on Jorge’s claim, the BIA affirmed denial on
the grounds that they were too amorphous to qualify as a
“particular social group,” and were therefore not cognizable
under the Immigration and Nationality Act (INA). We agree and
affirm.
I.
A.
The rapid growth of violent gangs such as MS—13 has proved
nothing short of a tragedy for those living in Central America.
2
Like a malign specter, the reach of MS—13 extends from city to
town to countryside and oppresses the daily lives of innumerable
people through intimidation, harassment, and staggering acts of
violence. The son of the president of Honduras is among those
who have been killed by MS—13. Countless more victims have been
beaten, raped, or tortured at the hands of gang members; yet
still more endure lives constricted by fear of such fates.
Despite aggressive measures by national authorities, gang
violence continues more or less unabated. 1 At the local level,
authorities too often lack the resources, ability, or resolve to
combat MS—13 effectively, still less to protect citizens and
their families. For too many, the only way to escape the gang
is to flee home altogether. 2 This is the unhappy backdrop to
this case.
B.
1
A recent study conducted by the World Bank supports a finding that
Guatemala, Honduras, and El Salvador have the highest homicide rates in the
world, approaching 100 persons per 100,000 in certain areas. Crime and
Violence in Central America: A Development Challenge, at 3, (2011), available
at: http://issuu.com/world.bank.publications/docs/crime_and_violence_in_
central_america_en (saved as an ECF Opinion Attachment).
2
The plague that is MS—13 is not limited to Central America but has made
significant inroads into the United States. A complete list of federal
criminal cases involving MS—13 members would be prohibitively long. A
cursory sample, however, reveals something of the breadth of the gang’s
criminal activity. See e.g., U.S. v. Palacios, 677 F.3d 234 (4th Cir. 2012)
(murder in aid of racketeering); U.S. v. Umana,
750 F.3d 320 (4th Cir. 2014)
(two counts of murder while using firearm); U.S. v. Lobo-Lopez, 468 Fed.
Appx. 186 (4th Cir. 2012)(conspiracy to commit murder in aid of
racketeering); U.S. v. Rivera, 405 F.Supp.2d (E.D.Va. 2005) (killing a person
aiding a federal investigation); U.S. v. Martinez,
978 F. Supp. 2d 177
(E.D.N.Y. 2013) (multiple counts of murder); U.S. v. Escobar, 462 Fed. Appx.
58 (2d Cir. 2012) (use of explosives to commit a felony); U.S. v. Ramos-
Carillo, 511 Fed. Appx. 739 (10th Cir. 2013) (conspiracy to distribute
methamphetamine).
3
The facts, summarized briefly, are taken from the
administrative record. The siblings grew up in their
grandmother’s house in Sensuntepeque, El Salvador, a town
containing the presence of the MS-13 gang. The gang members were
easily recognizable to the residents of the town as they wore
distinct tattoos and perpetrated frequent acts of violence on
members of the community, including robbery, assault, and arson.
At some point during his adolescence, MS-13 members tried to
recruit Jorge, but he refused to join as he did not approve of
their activities.
In May 2003, when she was eleven years old, Fatima was
attacked while walking home from school. Taking a shortcut
through a wooded area, she heard unfamiliar voices, was seized
from behind, was struck by a blow to the side of her face, and
fell unconscious. She awoke to find her blouse ripped, her
chest exposed, and her shirt raised. She felt pain in her
stomach, believed she had been raped, and thought MS-13 members
responsible as they had previously made sexual comments to her
and threatened to “get her.”
Jorge was eighteen years old at the time. When Fatima
explained to him that she believed she had been raped by gang
members, Jorge, accompanied by two friends, confronted the gang
members in a location where they frequently congregated. As
townspeople watched, Jorge yelled at the gang members, who
4
responded by punching and kicking him. After a few minutes,
Jorge ran home to safety, but did not call the police as he
believed they would do nothing. Thereafter, the siblings lived
in constant fear of the gang, eventually moving in with their
aunt for several months before returning to their grandmother’s
home as their aunt’s house was too crowded. Returning to
Sensuntepeque, they confined themselves to their grandmother’s
house for fear of encountering the gang members.
Jorge was the first of the siblings to flee El Salvador,
leaving Fatima with her grandmother. Several months later,
Fatima awoke to find that her grandmother’s house had caught
fire. Although she did not have conclusive proof, Fatima
believed that MS—13 started the fire and filed a police report
with the local authorities stating as much.
In March 2004, Jorge entered the United States near Tecate,
California, where he was promptly served by the Department of
Homeland Security (DHS) with a Notice to Appear (NTA) in removal
proceedings. In August 2004, Fatima entered the United States
near Hidalgo, Texas, and the following month the DHS served her
with a similar notice. Jorge admitted the allegations in the NTA
and conceded removability, but requested relief in the form of
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). At a later hearing, the IJ
joined Jorge’s and Fatima’s cases, including their applications
5
for asylum and withholding of removal.
C.
On May 2, 2007, the IJ granted the Petitioners’
applications for asylum, finding that they provided sufficient
evidence to support their claims. Specifically, the IJ found
Jorge’s particular social group as “young Salvadoran students
who expressly oppose gang practices and values and wish to
protect their family against such practices,” and Fatima’s
social group as “young female students who are related to an
individual who opposes gang practices and values.”
On review, the BIA sustained the DHS’s appeal in July 2009,
and remanded the record to the IJ for further adjudication
consistent with its opinion. The BIA concluded that the IJ’s
decision conflicted with the holdings of the intervening cases
of Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) and Matter
of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008); consequently, the
IJ’s findings that the Petitioners belonged to particular social
groups and that they had a well-founded fear of persecution
based on such membership, did not square with the BIA’s
decisions in similar cases. For this reason, the BIA determined
that the Petitioners failed to meet both the lower burden of
proof to establish asylum as well as the more rigorous clear
probability standard for withholding of removal. Nonetheless,
the BIA remanded the case so that the IJ could consider two
6
alternate claims brought by Petitioners, namely a claim for
asylum based on alternate political opinion and for protection
under the Convention Against Torture (CAT).
On remand, the Petitioners withdrew their political opinion
and CAT claims. Instead, citing this Court’s opinion in
Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2012) as
intervening law, they requested that the IJ adjudicate anew
their claims for asylum based on their respective particular
social groups. Not persuaded, the IJ denied their claims,
finding them to be in conflict with existing BIA precedent.
Reviewing the case for the second time, the BIA in March
2013 affirmed the IJ’s denial and dismissed Petitioners’ claims
for asylum. In so holding, the BIA examined Petitioners’ claims
in light of recent decisions from this Court, distinguishing the
facts of this case from those in Crespin-Valladares, where the
family of the petitioner was more readily identifiable as the
asylum petitioner and his uncle agreed to testify at the trial
of gang members who had killed a relative. 632 F.3d at 126. In
contrast, the BIA likened the facts of this case to those in
Zelaya v. Holder,
668 F.3d 159 (4th Cir. 2012) where this Court
found that young Honduran males who refused to join gangs, had
notified the authorities of gang harassment tactics, and had a
readily identifiable tormentor within the gang did not
constitute a cognizable social group.
7
Accordingly, the BIA issued a final order of deportation,
which this Court now reviews.
II.
Section 106(a) of the Immigration and Nationality Act vests
federal appellate courts with jurisdiction to review “final
orders of deportation.” 8 U.S.C. § 1252(a)(1). Final orders are
entered only after all administrative remedies have been
exhausted; thus, final orders in deportation proceedings are
generally made by the BIA following appeal from the immigration
judge. See Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.
2004). Where, as in this case, the BIA issued its own opinion
without adopting the IJ’s opinion in whole or in part, review by
this Court is limited to the BIA’s opinion. Martinez v. Holder,
740 F.3d 902, 908 n.1 (4th Cir. 2014). The BIA’s decision,
therefore, constitutes the final order of removal, and we review
that opinion and not the opinion of the IJ. The BIA’s legal
determinations, including its interpretation of the INA and
other regulations, are reviewed de novo. See Li Fang Lin v.
Mukasey,
517 F.3d 685, 691-92 (4th Cir. 2008).
Individuals qualify for asylum if they demonstrate that
they are subject to persecution or have 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). This Court upholds the denial of an
8
asylum claim unless such denial is “manifestly contrary to law
and an abuse of discretion.” Zelaya, 668 F.3d at 165 (quoting 8
U.S.C. § 1252(b)(4)(D)).
The BIA recognizes a particular social group when it
satisfies three criteria: (1) its members share common,
immutable characteristics; (2) the common characteristics give
its members social visibility; and, (3) the group is defined
with sufficient particularity to delimit its membership. Lizama
v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) (internal citations
omitted). After Lizama was issued, the BIA clarified the term
“social visibility” to mean “social distinction,” as the former
term risked misapprehension as merely ocular or actual
visibility, whereas the latter directs focus on the full range
of qualities capable of rendering a group distinct within a
society. Matter of W-G-R-, 26 I. & N. Dec. 2008 (BIA Feb. 7,
2014).
III.
The discrete question in front of us is whether the
following groups qualify as particular social groups:
(Jorge): “young Salvadoran students who expressly
oppose gang practices and values and wish to protect
their families against such practices”; and
(Fatima): “young female students who are related to an
individual who opposes gang practices and values.”
In addressing this question, our analysis is directed by
9
numerous prior decisions of this Court and the BIA, which have
examined the proposed social groups of persons seeking asylum
due to persecution at the hands of MS-13.
The BIA has found that a group comprised of Salvadoran
youth who have been recruited by MS—13, but resisted joining was
too amorphous to qualify as a particular social group as “the
motivation of gang members in recruiting and targeting young
males could arise from motivations quite apart from any
perception that the males in question were members of a class.”
Matter of S-E-G-, 24 I. & N. at 585. Similarly, a class of
young persons perceived to be affiliated with gangs based on the
incorrect perceptions of others likewise cannot be identified as
a particular social group. Matter of E-A-G-, 24 I. & N. at 596.
In Lizama, this Court declined to recognize a proposed
social group consisting of “young, Americanized, well-off
Salvadoran male deportees with criminal histories who oppose
gangs.” 629 F.3d at 447. In reaching this conclusion, the Court
found that factors such as wealth, Americanization and
opposition to gangs were amorphous characteristics that failed
“to provide an adequate benchmark for determining group
membership” as such factors did not “embody concrete traits that
would readily identify a person as possessing these
characteristics.”
Id. (internal citations omitted). This Court
followed the exact same line of reasoning in Zelaya, finding
10
that a proposed group comprised of young, Honduran males who
refused to join MS—13, notified the authorities about harassment
tactics, and had an identifiable tormentor within MS—13, was too
amorphous a class to satisfy the particularity requirement. 668
F.3d at 166 (citing
Lizama, 629 F.3d at 447).
In Crespin-Valladares, by contrast, this Court found that a
social group consisting of family members of persons who
actively oppose gangs in El Salvador by agreeing to be
prosecutorial witnesses constituted a particular social group.
The discrete issue in Crespin-Valladares centered upon the class
of family members rather than the actual persons who agree to
serve as witnesses. Nonetheless, the Court did not view these
classes in isolation from each other, observing that: “we can
conceive of few groups more readily identifiable than the family
. . . [and] [t]his holds particularly true for Crespin’s family,
given that Crespin and his uncle publicly cooperated with the
prosecution of their relative’s murder.” Crespin-Valladares, 632
F.3d at 126.
Petitioners contend that the BIA erred by expanding on
Crespin-Valladares insofar as that opinion was limited to the
discrete question of eligibility of the family members as a
particular social group. Although they are correct that the
holding in Crespin-Valladares ventures no further than to
recognize the status of family members per se as a particular
11
social group, and that the opinion offers no account of how the
manifold forms of opposition to gangs might inform the
boundaries of a particular social group, it does not naturally
follow that such considerations are beyond the purview of a
reviewing court. Crespin-Valladares establishes that the family
members constitute a particular social group by virtue of their
relationship to persons who agree to testify at trial against
gang members. Reading this case as mandating that the claims of
family members be viewed in isolation to one another risks
yielding the absurd result whereby family members of persons
testifying at trial might qualify as a particular social group
while the persons testifying do not.
Subsequent decisions from this Court have laid to rest any
doubts about the implications of the holding in Crespin-
Valladares. Quoting language from a concurring opinion from the
Ninth Circuit, Judge Floyd, joined by Judge Davis, addressed
this issue in Zelaya, stating that:
It should be noted that the proposed social group in
Crespin [Crespin-Valladares] included only family
members of [prosecution witnesses against gangs] and
not the witnesses themselves. However, to my mind, if
the family members or witnesses are deemed socially
visible and particular, the witnesses themselves—a
more particular and socially visible and smaller class
of people—must, a fortiori, meet those requirements as
well.
668 F.3d at 169 (quoting Henriquez-Rivas v. Holder, No-09-
71571, 449 Fed.Appx. 626, 632 n.5
2011 WL 3915529, at *5
n.5 (9th Cir. Sept. 7, 2011)) (unpublished).
12
For this reason, the BIA did not err in comparing
unfavorably Jorge’s public confrontation with the public
testimony of gang members at issue in Crespin-Valladares. In
fact, this Circuit drew the same comparison in Zelaya, a case
involving a proposed social group comprised of young, Honduran
males who refused to join MS-13, notified the authorities about
harassment tactics, and had an identifiable tormentor within the
gang. Finding that the proposed group failed the particularity
requirement, Judge Floyd stated the following:
Thus while I agree that Zelaya’s proposed social group
is insufficiently particular, I reach this conclusion
not because the members of the proposed social group
lack kinship ties, but rather because the
characteristics of the group are, in my view, broader
and more amorphous than a group consisting of
individuals who have testified for the government in
formal prosecutions of gangs.
Zelaya, 668 F.3d at 169.
Indeed, all of this is a somewhat technical prelude to the
most important distinction in this case, namely particularity.
A particular social group must have “particular and well
established boundaries.” Zelaya, 668 F.3d at 166. Here, the
proposed social groups lack well-established boundaries; that is
to say they provide no means to distinguish among the panoply of
actions a person might take in opposition to MS—13. Instead,
the proposed groups regard as an undifferentiated class all
conceivable forms of public opposition to gangs, to include, for
13
example, the filing of a police report, making statements
against the gang to local media, participation in a city-wide
protest against the gang, or, as discussed during oral
arguments, public criticism of gang activity by a bishop during
a religious service. While different in material respects, all
of these are acts of public opposition to gangs falling squarely
within the proposed social group. Like Zelaya, the proposed
group is too amorphous as it fails “to provide an adequate
benchmark for determining group membership.” 629 F.3d at 447.
IV.
For the foregoing reasons, we affirm the BIA’s order
denying Petitioners’ claims for asylum.
AFFIRMED
14
WYNN, Circuit Judge, concurring in the judgment:
I agree with the majority’s conclusion that the siblings’
proposed social groups are not particular enough to render them
eligible for asylum. I further agree that we should deny the
petition for review. Put simply, Zelaya v. Holder, 668 F.3d 159
(4th Cir. 2012), and Lizama v. Holder,
629 F.3d 440 (4th Cir.
2011), dictate the outcome here. In those cases, we held that
“opposition to gangs [is an] amorphous characteristic[]” that
cannot be used to determine group membership,
Lizama, 629 F.3d
at 447, and that “[r]esisting gang recruitment is similarly
amorphous,”
Zelaya, 668 F.3d at 166. Jorge’s one public
altercation with gang members does not turn him or his sister
into members of any “particular social group” that is eligible
for asylum under 8 U.S.C. § 1101(a)(42)(A).
Although I think that we should clear up the “lingering
confusion regarding the implications of our holding in Crespin-
Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011),”
Zelaya, 668
F.3d at 169 (Floyd, J., concurring in judgment), this case is
not the vehicle for doing so. In Crespin-Valladares, we held
that family members of those who testify against gangs are
members of a “particular social group.”
Crespin-Valladares, 632
F.3d at 126. We did not reach the question of whether
prosecution witnesses, themselves, constitute a particular
social group. Like Judge Floyd and Judge Davis, I would read
15
Crespin-Valladares “to indicate that such a group satisfies [the
relevant criteria] in the same manner that family members of
prosecution witnesses against gangs do.” Zelaya, 668 F.3d at
169 (Floyd, J., concurring in judgment) (quotation marks
omitted).
Of course, such a reading has no bearing on the outcome of
this case. Even if we were to assume that prosecution witnesses
are members of a “particular social group,” Jorge’s conduct in
publicly confronting several gang members on one occasion is
analogous to the conduct in Zelaya, which consisted of twice
contacting the police. Id. at 166. Because Fatima’s proposed
social group—“young female students who are related to an
individual who opposes gang practices and values”—is derivative
of the insufficiently particular social group of her brother,
her petition for review must fail as well.
16
