409 F.3d 1177 (9th Cir. 2005), 02-71656, Thomas v. Gonzales

Docket Nº:02-71656.
Citation:409 F.3d 1177
Party Name:Michelle THOMAS; David George Thomas; Tyneal Michelle Thomas; Shaldon Waide Thomas, Petitioners, v. Alberto R. GONZALES, [*] Attorney General, Respondent.
Case Date:June 03, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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409 F.3d 1177 (9th Cir. 2005)

Michelle THOMAS; David George Thomas; Tyneal Michelle Thomas; Shaldon Waide Thomas, Petitioners,

v.

Alberto R. GONZALES, [*] Attorney General, Respondent.

No. 02-71656.

United States Court of Appeals, Ninth Circuit

June 3, 2005

Argued and Submitted En Banc Dec. 14, 2004.

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Errol I. Horwitz and Edward M. Bialack, Law Offices of Errol I. Horwitz, Woodland Hills, California, for the petitioners.

Daniel Meron, Principal Deputy Assistant Attorney General, and Anne Murphy, Attorney, Department of Justice, Washington, D.C., for the respondent.

Deborah Anker, Nancy Kelly, and John Willshire, Women Refugees Project, Harvard Immigration and Refugee Clinic, Boston, Massachussetts, for the amicus curiae.

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

Before: SCHROEDER, Chief Judge, REINHARDT, O'SCANNLAIN, RYMER, KLEINFELD, HAWKINS, SILVERMAN, GRABER, WARDLAW, PAEZ, and BEA, Circuit Judges.

WARDLAW, Circuit Judge:

Michelle, David, Shaldon, and Tyneal Thomas, natives and citizens of South Africa, appeal the decision of the Board of Immigration Appeals ("BIA"), summarily affirming the Immigration Judge's ("IJ's") denial of their application for asylum and withholding of removal.

We review this case en banc to reconcile our intracircuit conflict on the question of whether a family may constitute a "particular social group" for the purposes of 8 U.S.C. § 1101(a)(42)(A). We hold that family membership may constitute membership in a "particular social group," and thus confer refugee status on a family member who has been persecuted or who has a well-founded fear of future persecution on account of that familial relationship. We also overrule Estrada-Posadas v. U.S. INS, 924 F.2d 916 (9th Cir. 1991), and its progeny, to the extent that they hold that a family may not constitute a "particular social group"; we defer to the BIA's view of kinship ties as giving rise to social group membership, expressed in In re Acosta, 19 I. & N. Dec. 211, 1985 WL 56042 (BIA 1985), and elsewhere; and we join the univocal view of our sister circuits that a family may make up a particular social group.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant the Thomases' petition and remand to the BIA for further proceedings.

I. BACKGROUND

We substantially adopt the factual recitation by the original panel majority in its now-withdrawn opinion.

Michelle Thomas, her husband David Thomas, and their two children, Shaldon Thomas and Tyneal Thomas, are citizens and natives of South Africa. They entered the United States as visitors at Los Angeles, California, on May 28, 1997. Within one year of their arrival, they filed requests for asylum pursuant to § 208 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158. Michelle Thomas is the principal asylum applicant; David, Shaldon, and Tyneal are derivative applicants.

At a hearing on December 2, 1998, the petitioners conceded their removability and requested asylum and withholding of removal. On May 12, 1999, the IJ held an evidentiary hearing. Michelle Thomas was the only petitioner who testified at the hearing.

The Thomases came to the United States to avoid threats of physical violence and intimidation to which they were subjected because of abuses committed by Michelle's father-in-law, "Boss Ronnie," who was a foreman at Strongshore Construction in Durban, South Africa. Boss Ronnie was and is a racist who abused his

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black workers both physically and verbally.

At the hearing, Michelle testified about a number of events that support the Thomases' fears. The first took place in February 1996, when the family dog was poisoned. At that time they did not connect the incident with Boss Ronnie's abusive and racist conduct. The next month, their car was vandalized and its tires slashed, though nothing was taken out of the car. The police came, took fingerprints, and patrolled the area but did nothing else. The Thomases told Michelle's father-in-law about the incident. Boss Ronnie told them that he had just had a confrontation with his workers and that the family should buy a gun.

In May 1996, human feces were thrown at the door of the Thomases' residence while they were at home. After hearing the noise, the Thomases saw people running away. Feces were also left outside their front and back gates at later times. The Thomases then had higher fencing installed and bars put on their windows; they got a guard dog and requested additional police patrols.

In December 1996, Michelle's life was threatened by a person wearing overalls bearing a Strongshore logo. In her words,

I was sitting on the veranda the one evening with my children playing in the front yard and a Black man had come up to me and asked me if I knew Boss Ronnie which was David's father and he said to me he'[d] come back and cut my throat. At that stage I'd taken the kids inside. The kids were very upset and I said to him we don't know him, he's just drunk. Let's go inside. At this stage I was really, really fearing for my life and I had told David on a number of occasions, please speak to his father which he did, but he was not interested in what we had to say.

In March 1997, Michelle was outside of her gate, on the way to the store, when four black men approached her and tried to take her daughter from her arms. As she testified, "[T]hey surrounded me and the next thing I knew is that they were trying to get Tyneal out [of] my arms. I held her tight and fell to the ground with her...." The men ran off after Michelle's neighbor came out of his house in response to Michelle's screaming. One of the men wore Strongshore overalls. After this incident Michelle was afraid that "they were going to come back and either kill one of us or take one of my children." It was at that point that Michelle decided that she needed to leave South Africa.

Michelle's brother-in-law had his house broken into and his car vandalized several times, and he and his family had received threats. Michelle believed that her family, rather than her father-in-law, had become the subject of attacks because her father-in-law owned weapons and lived in what was essentially a "fortress," so the attackers could not get to him. In addition to the evidence of particular attacks on their family, the Thomases also submitted evidence of the widespread crime problem in South Africa.

The IJ did not make an adverse credibility finding, 1 but nevertheless denied the Thomases' request for asylum and withholding of removal, finding that Michelle failed to meet her burden of proving that she and her family suffered persecution in South Africa based "on any of the five statutory grounds, whether it is race or political opinion." Although the asylum application indicated both membership in a social group and political opinion as grounds for relief, and did not identify

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"race," the IJ did not expressly reference "membership in a particular social group." The BIA affirmed the decision of the IJ without opinion, and the Thomases petitioned for review. A divided three-judge panel held that the Thomases suffered past persecution as a result of their family membership, granted the petition, and remanded for further consideration of, among other things, whether the government was unable or unwilling to control the violence against the Thomases.

II. STANDARD OF REVIEW

We review the BIA's "factual determinations, including its finding of whether an applicant has demonstrated a 'well-founded fear of persecution,' ... for substantial evidence." Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We also review the BIA's decision to withhold deportation for substantial evidence. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir. 1995). "The substantial evidence standard of review is highly deferential to the Board." Pedro-Mateo, 224 F.3d at 1150 (quotations and citations omitted). "We review the BIA's determination of purely legal questions regarding the Immigration and Nationality Act de novo." Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir. 2003) (citations omitted). However, "[t]he BIA's interpretation of immigration laws is entitled to deference." Id. at 862. Because the BIA summarily affirmed the IJ's decision, we review the IJ's decision as the final agency determination. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003).

III. DISCUSSION

A. Eligibility for Asylum and Withholding of Removal

The Attorney General may grant asylum to an alien who is a refugee. 8 U.S.C. § 1158(b)(1). "A refugee is an alien who is unable to return to his home country 'because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.' " Ding v. Ashcroft, 387 F.3d 1131, 1136 (9th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)).

To establish eligibility for withholding of removal, under 8 U.S.C. § 1231(b)(3)(A), a petitioner must establish a "clear probability," Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000), that the petitioner's "life or freedom would be threatened" upon return because of "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). An applicant has established a "clear probability" of persecution, and "is entitled to withholding of removal ... if it is more likely than not that he or she will be persecuted based on one of the protected grounds if returned to the country of removal." Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir. 2003). Once the petitioner satisfies the standard, withholding of removal is mandatory. 8 U.S.C. § 1231(b)(3)(A). As in the context of asylum, "[a]...

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