Rivera-Barrientos v. Holder

• Decision Date: 11 January 2012
• Docket Number: No. 10–9527.,10–9527.
• Parties: Minta Del Carmen RIVERA–BARRIENTOS, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.United Nations High Commissioner for Refugees, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

666 F.3d 641

Minta Del Carmen RIVERA–BARRIENTOS, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.United Nations High Commissioner for Refugees, Amicus Curiae.

No. 10–9527.

United States Court of Appeals, Tenth Circuit.

Jan. 11, 2012.

J. Shawn Foster, Law Offices of J. Shawn Foster, LLC, Salt Lake City, UT, for Petitioner.

Michael C. Heyse (Mary Jane Candaux, Assistant Director, and Edward E. Wiggers, Trial Attorney, with him on the brief) Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

Pamela Goldberg and Kaitlin Kalna Darwal, on brief for United Nations High Commissioner for Refugees, Washington, DC, for Amicus Curiae in support of Petitioner.

Before TYMKOVICH, BRORBY, and MATHESON, Circuit Judges.

TYMKOVICH, Circuit Judge.

Minta del Carmen Rivera Barrientos suffered a brutal attack at the hands of gang members in her native country of El Salvador. She escaped to the United States and now seeks asylum. She contends she is eligible for asylum under 8 U.S.C. § 1158 because she has faced past persecution on account of her political opinion—opposition to gangs—and her membership in a particular social group—young females who have resisted gang recruitment. The BIA argues that the attack was not on account of her political opinion and that she is not a member of a cognizable social group. Because the BIA's interpretation of the applicable statute is not unreasonable, we conclude the agency did not abuse its discretion in finding that Rivera Barrientos was ineligible for asylum.

Exercising jurisdiction under 28 U.S.C. § 1252(a), we therefore AFFIRM the BIA's decision.

I. Background

Rivera Barrientos is a native of a small town in El Salvador. While living there, she routinely witnessed acts of violence and crime committed by members of the Mara Salvatrucha street gang (MS–13).

In August 2005, members of MS–13 approached Rivera Barrientos and asked her to join the gang. She refused, stating, “No, I don't want to have anything to do with gangs. I do not believe in what you do.” Agency R. at 879. They told her: “[i]f you don't want to join with us, if you don't participate with us, if you are against us, your family will pay.” Id. Gang members continued to harass her and pressure her to join the gang over the next few months.

In January 2006, Rivera Barrientos came upon five gang members while walking alone to the bus station. They again demanded that she join the gang, and again she refused, stating that she disapproved of the gang's activities. One of them put a knife to her throat and they forced her into a car, blindfolded her, and drove her to a field. After dragging her out of the car, the gang members asked Rivera Barrientos if she had changed her mind, and she told them she had not. The gang members then began kissing her. When she struggled to escape, one of them smashed her in the face with a beer bottle. Three of the gang members then brutally raped her. Afterwards, they told her that she had to join the gang, and that if she talked to the police they would kill both her and her mother. Rivera Barrientos did not report the rape because she feared the gang members would follow through with their threats, and she did not believe the police could protect her.

Rivera Barrientos did not leave her house for several days after the attack. During this time, gang members appeared at her house on approximately five occasions demanding to speak with her and repeating their intention to recruit her. Id. at 226. Rivera Barrientos's mother lied and told them she did not know where Rivera Barrientos was. Two weeks later, Rivera Barrientos's brothers sent her money, and she left El Salvador for Mexico by bus. She subsequently was apprehended by immigration officials while trying to illegally cross the border into the United States. Rivera Barrientos's mother reports that gang members have come back to the house looking for Rivera Barrientos multiple times since she left.

The Department of Homeland Security initiated removal proceedings against Rivera Barrientos for being an alien present in the United States without having been admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). She conceded the charge of removability, but filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), based on her attack at the hands of MS–13 members.

After a hearing, the Immigration Judge (IJ) found Rivera Barrientos's testimony as to the events that took place in El Salvador was credible. Nonetheless, the IJ denied each of the claims and issued an order for removal. The IJ concluded, in relevant part, that Rivera Barrientos's claim for asylum lacked merit because she failed to establish past persecution on account of her political opinion or membership in a particular social group. On appeal, the BIA affirmed the IJ's decision.

II. Discussion

Rivera Barrientos appeals the denial of her claim for asylum. She renews her claims that she was persecuted on account of her political opinion and her membership in a particular social group, and asserts that she is therefore a refugee eligible for asylum.

A. Standard of Review

“Our scope of review directly correlates to the form of the BIA decision.” Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir.2007). Where, as here, “a single BIA member issues a brief order, affirming ... the IJ's order ... such an order constitutes the final order of removal ... and thus this Court will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance.” Id. When the BIA has failed to address a ground that appears to have substance, we should not reverse on that ground, but instead remand. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.2005); see INS v. Ventura, 537 U.S. 12, 16–17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

We review the BIA's findings of fact under a substantial-evidence standard. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004). Under this standard, “[t]he BIA's findings of fact are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Hang Kannha Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir.2004) (quotation omitted).

We review the BIA's legal conclusions de novo. Elzour, 378 F.3d at 1150. But the BIA's interpretations of ambiguous provisions in the Immigration and Nationality Act (INA) are entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Niang, 422 F.3d at 1196 (“The Supreme Court has instructed that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.”).

If the BIA's construction is reasonable, Chevron requires that we accept this construction, “even if the agency's reading differs from what the court believes is the best statutory interpretation.” Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). This standard of review is not more searching where the agency's decision is a change from prior policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1810, 173 L.Ed.2d 738 (2009). In making this change, the agency need not make clear “why the original reasons for adopting the displaced rule or policy are no longer dispositive” or “why the new rule effectuates the statute as well as or better than the old rule.” Id. (quotations and alterations omitted).

B. Statutory Framework

To be eligible for asylum, an alien must establish by the preponderance of the evidence that he or she is a refugee. 8 C.F.R. § 1208.13. The INA defines a “refugee” as an alien unable or unwilling to return to the country of origin “ 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) (emphasis added).

An applicant may obtain refugee status in one of three ways. First, through evidence of a well-founded fear of future persecution. Krastev v. INS, 292 F.3d 1268, 1270 (10th Cir.2002). Second, through a showing of past persecution, which gives rise to a rebuttable presumption of a well-founded fear of future persecution. Id. at 1270–71. And finally, through a showing of past persecution so severe as to provide a compelling argument against removal, even though there is no danger of future persecution on the basis of a protected ground. Id. at 1271.

Where, as here, the applicant pursues the second of these paths, a showing of three elements is required: “(1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either unable or unwilling to control.” Niang, 422 F.3d at 1194–95. “For persecution to be ‘on account of’ [a statutorily protected ground], the victim's protected characteristic must be central to the persecutor's decision to act against the victim.” Id. at 1200.

An alien who shows past persecution meeting these requirements is presumed to have a well-founded fear of future persecution, and is therefore eligible for asylum. But the government may rebut this presumption and prevent the grant of asylum if it shows the following by the preponderance of evidence: (1) there has been a “fundamental change” in circumstances, such that the applicant no longer has a well-founded fear of persecution; or (2) the applicant could avoid future persecution by relocating to another part of the applicant's country. § 1208.13(b)(1)(i).

C. Persecution on Account of Political Opinion or Social Group

1. Political Opinion

Rivera Barrientos first claims she was assaulted by MS–13 members on...