Ramos-Lopez v. Holder

• Decision Date: 16 April 2009
• Docket Number: No. 06-72402.,06-72402.
• Citation: 563 F.3d 855
• Parties: Erik RAMOS-LOPEZ, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

563 F.3d 855

Erik RAMOS-LOPEZ, Petitioner, v. Eric H. HOLDER, Jr.,^* Attorney General, Respondent.

No. 06-72402.

United States Court of Appeals, Ninth Circuit.

Submitted April 11, 2008.^**

Submission Vacated and Deferred April 28, 2008.

Resubmitted March 5, 2009.

Filed April 16, 2009.

Juliann Bildhauer, Seattle, WA, for the petitioner.

Susan M. Harrison, Assistant United States Attorney, Seattle, WA, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098-919-259.

Before: A. WALLACE TASHIMA, M. MARGARET McKEOWN, and WILLIAM A. FLETCHER, Circuit Judges.

TASHIMA, Circuit Judge:

Petitioner Erik Ramos-Lopez ("Ramos"), a Honduran national, petitions for review of a Board of Immigration Appeals' ("BIA") order denying asylum and withholding of removal. An Immigration Judge ("IJ") credited as true Ramos' testimony that he refused recruitment into the Mara Salvatrucha ("MS-13"), a Central American gang, and that MS-13 members subsequently threatened to kill him. The dispositive issue in this case is whether Ramos suffered or has a well-founded fear of persecution on account of a particular social group—young Honduran men who have been recruited by the MS-13, but who refuse to join—or political opinion. The BIA recently determined that young Salvadoran men who have resisted recruitment into the MS-13 do not constitute a particular social group and that the refusal to join the MS-13 does not amount to a political opinion. In re S-E-G-, 24 I. & N. Dec. 579, 583, 589 (BIA 2008). Applying the principles of deference established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we defer to the BIA's decision with respect to social group and deny the petition.

I.

Ramos was born and raised in Puerto Cortes, Honduras. Ramos' problems with the MS-13 began in January 2004, when he was sixteen years old. During his first encounter with the MS-13, a gang member approached him and a friend outside of Ramos' home. The MS-13 member told them that "it was time to join," took out a gun, and told the boys to come with him to rob some people. When Ramos and his friend did not respond or move, the man warned them that if they "wanted to live, he would be waiting." Later that year, another MS-13 member returned to Ramos and his friend and again delivered the message that "it was time to join." The gang member showed the boys his gun and told them that they could either join the MS-13 or be killed.

In January 2005, Ramos fled to Mexico. He was detained by Mexican authorities and returned to Honduras the same month. After Ramos returned to Puerto Cortes, MS-13 members threatened to kill him or a member of his family if he tried to escape from Honduras again. He avoided further encounters with the MS-13 before fleeing Honduras in May 2005.

Ramos entered the United States on May 16, 2005. On May 17, 2005, he was detained by Border Patrol agents and served with a Notice to Appear, charging him with removability for being an alien present in the United States without being admitted or paroled. Ramos conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").¹ During his removal hearing, Ramos testified about his three encounters with MS-13 members in Puerto Cortes.

In response to questioning by the IJ, Ramos also testified that he did not join the MS-13 because he would have lost contact with his family, would have been obligated to steal, and "probably spend most of [his] life in jail." Of the group of Ramos' friends who were recruited by the MS-13, two joined the gang, one or two were killed, others were hiding in Honduras, and some fled to the United States. Ramos was afraid that MS-13 members would kill him, but he never went to the police for help. Two of Ramos' brothers, ages nineteen and twenty, remained in Puerto Cortes. The MS-13 did not bother the nineteen-year old, but started looking for the twenty-year old after Ramos fled. Ramos' twelve-year old brother lives with his parents, but has not had problems with the gang because he is too young. A sixteen-year old sister also lives with Ramos' parents.

The IJ found Ramos credible, but, even after crediting his testimony as true, denied asylum, withholding of removal, and protection under the CAT. The IJ held that Ramos could not establish eligibility for asylum or withholding because he did not face persecution on account of his membership in a cognizable social group or any political opinion. Alternatively, the IJ held that Ramos did not suffer past persecution or have a well-founded fear of future persecution.² The IJ further denied CAT relief because Ramos did not face a clear probably of torture in Honduras.

The BIA affirmed in a summary disposition. Ramos timely petitions for review of the denial of asylum and withholding of removal, but not the denial of CAT relief.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When, as here, the BIA summarily affirms the IJ's decision, we review the IJ's decision as the final agency action. 8 C.F.R. § 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review the IJ's legal determinations de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004).

The IJ's findings of fact "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ's findings of fact for substantial evidence. Halaim, 358 F.3d at 1131. Additionally, "[w]e accept [the petitioner's] testimony as true when, as here, the IJ found [him] to be credible." Id. (citing Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002)).

III.

Congress vested the Attorney General with the discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1)(A). The INA defines "refugee," in relevant part, as:

any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). While asylum is a discretionary form of relief, the Attorney General must grant withholding of removal if "the alien's life or freedom would be threatened" in the country to which he would be removed 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). Thus, to be eligible for either form of relief, the persecution feared must be on account of one of the five protected grounds. Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir.2007) (asylum); Nadarajah v. Gonzales, 443 F.3d 1069, 1081-82 (9th Cir. 2006) (withholding of removal).

A. Particular Social Group

Ramos' claims for asylum and withholding of removal are predicated, primarily, on his membership in a particular social group: young Honduran men who have been recruited by the MS-13, but who refuse to join. Recently, the BIA issued a precedential opinion in which it held that Salvadoran youth who have resisted gang recruitment are not a cognizable social group under the INA. In re S-E-G-, 24 I. & N. Dec. at 588.

We have not yet had the occasion to address whether the BIA's determination, in a published disposition, that a group is or is not a "particular social group" is entitled to Chevron deference. After Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc), however, our path is clear.

Generally, "[w]e accord Chevron deference where there is `binding agency precedent on-point (either in the form of a regulation or a published BIA case).'" Renteria-Morales v. Mukasey, 532 F.3d 949, 954 (9th Cir.2008) (quoting Kharana v. Gonzales, 487 F.3d 1280, 1283 n. 4 (9th Cir.2007), overruled on other grounds by Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc)). Chevron deference to published BIA decisions is appropriate "as[the BIA] gives ambiguous statutory terms `concrete meaning through a process of case-by-case adjudication.'" Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)).

We review de novo the BIA's interpretation of a statute other than the INA, but whether an "offense constitutes a `crime of moral turpitude' is governed by the same traditional principles of administrative deference we apply to the Board's interpretation of other ambiguous terms in the INA." Marmolejo-Campos, 558 F.3d at 911. In Marmolejo-Campos, we explained that "moral turpitude" is an "ambiguous phrase," id. at 909-10, and noted previous decisions in which we deferred to the BIA's construction of "other ambiguous terms," including "particularly serious crime," Miguel-Miguel v. Gonzales, 500 F.3d 941, 947-48 (9th Cir.2007), "conviction," Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.2001), and "persecution," Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc). Marmolejo-Campos, 558 F.3d at 911. Because we defer to precedential BIA decisions that give meaning to ambiguous terms, we there held that the BIA's construction of "moral turpitude" though a process of case-by-case adjudication is entitled to Chevron deference. Id. at 911.

"Particular social group," like "moral turpitude," is an amorphous term. The BIA defined the general contours of the term in In re Acosta as "a group of persons all of whom share a common, immutable characteristic." 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The BIA has expanded on this definition by directing courts to further consider a...