685 F.3d 511 (5th Cir. 2012), 11-60147, Orellana-Monson v. Holder

Docket Nº:11-60147.
Citation:685 F.3d 511
Opinion Judge:EDITH BROWN CLEMENT, Circuit Judge:
Party Name:Jose Vladimir ORELLANA-MONSON; Andres Eduardo Orellana-Monson, Petitioners, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
Attorney:Aaron Michael Streett, Baker Botts, L.L.P., Houston, TX, for Petitioners. Rachel Louise Browning, Tangerlia Cox, Gregory Michael Kelch, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.
Judge Panel:Before HIGGINBOTHAM, GARZA and CLEMENT, Circuit Judges.
Case Date:June 25, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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685 F.3d 511 (5th Cir. 2012)

Jose Vladimir ORELLANA-MONSON; Andres Eduardo Orellana-Monson, Petitioners,

v.

Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 11-60147.

United States Court of Appeals, Fifth Circuit.

June 25, 2012

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Aaron Michael Streett, Baker Botts, L.L.P., Houston, TX, for Petitioners.

Rachel Louise Browning, Tangerlia Cox, Gregory Michael Kelch, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

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

Before HIGGINBOTHAM, GARZA and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Salvadoran citizens Jose Orellana-Monson and his brother Andres entered the United States on October 22, 2005. They were charged with being in the United States without having been admitted or paroled and claimed asylum because of Jose's political opinions and membership in a particular social group. The Board of Immigration Appeals (" BIA" ) rejected this argument. The Orellana-Monsons appeal. We reject their claim and affirm the ruling of the BIA.

FACTS AND PROCEEDINGS

The Petitioners' argument revolves around a particularly violent and aggressive gang, Mara 18, which is widespread in Jose and Andres's area of El Salvador. The boys, ages 11 and 8 at the time of their initial escape from El Salvador, allege that they would have been subjected to repeated harassment and violence if they had remained in their hometown.

Mara 18, also known as the 18th Street Gang, operates throughout the United States, Central America, and Mexico. El Salvador has lenient juvenile justice laws, and Salvadoran gangs recruit teenagers. Gangs encourage juvenile criminal activity, and they train new members in crimes such as drug dealing and murder. The gangs operate openly in El Salvador.

Before fleeing El Salvador, the boys lived with their maternal grandmother, her husband, and several other relatives in Zacatecoluca. The boys' mother, Teresa Turcios, left El Salvador for the United States in 2001 after an earthquake destroyed her residence and caused her to lose her job. She lives in Houston on temporary protected status with her husband Freddy, also a Salvadoran national with temporary protected status. Teresa did not marry Jose and Andres's natural father, a habitual criminal who played no role in the boys' lives.

According to Petitioners, one of Mara 18's local leaders, a man Jose knew only as Juan, lived directly across the street from the boys. Juan attempted to recruit Jose, who responded that he was unsure whether he wanted to be a gang member. He was afraid to flatly refuse. Juan threatened to kill Jose and his family. Juan returned one night when Jose was home alone and forced Jose at gunpoint to rob a jewelry store.

The boys' grandmother arranged for the boys to flee to the United States. The boys' uncle took them to the U.S./Mexico border where a friend helped them swim across the Rio Grande. The boys waited next to a Border Patrol truck until they were discovered and phoned their mother from the local immigration office.

The Orellana-Monsons maintained that they were refugees eligible for asylum because they would be persecuted on account of their membership in a particular social

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group. Jose contended that he is a member of a social group consisting of Salvadoran males, ages 8 to 15, who have been recruited by Mara 18 but have refused to join due to a principled opposition to gangs. Andres contended that he belongs to a social group consisting of siblings of members of Jose's social group or, alternatively, family members of Jose and that Mara 18 likely would impute Jose's anti-gang political opinion to him.

Jose testified that he was morally and conscientiously opposed to Mara 18 because membership in the gang meant harming and robbing other people. He feared the members of Mara 18 " [b]ecause they were very bad and [he] had to do what they told [him]." Andres testified that he had not been recruited by Mara 18 due to his age and that, while he does not want to join a gang, he believed Mara 18 would eventually attempt to recruit him. Moreover, Andres believed gang members would kill him if he refused to join.

Teresa Turcios testified that Jose and Andres would have no place to live if they were returned to El Salvador. According to Turcios, the boys' grandmother is elderly and caring for her ailing husband, whose care takes most of the grandmother's time. The boys have no relatives in El Salvador outside of Zacatecoluca. In an affidavit, the boys' grandmother swore that Mara 18 members had come to her house asking about Jose and Andres and threatened to kill her.

PRIOR PROCEEDINGS

This case has a long procedural history including a prior argument before this court. Initially, the Immigration Judge (IJ) found the evidence to be credible but determined that Jose and Andres were ineligible for asylum because the Salvadoran government was attempting to rein in the gangs; because the boys had not been persecuted; because the boys did not qualify as members of any particular social group; and because there was no indication Jose had any political opinions.

The BIA, in a single-member opinion, dismissed the Orellana-Monsons' appeal. The BIA determined that there was no evidence that Juan, the Mara 18 gang member, was motivated to harm Jose on any protected ground. The BIA stated that acts of criminal coercion did not constitute persecution on account of one of the protected grounds required to establish a claim for asylum or withholding of removal. The BIA did not explicitly analyze whether the Orellana-Monsons were members of relevant social groups for asylum purposes.

The Orellana-Monsons appealed to this court, where we initially denied their petition for review because they had failed to demonstrate that they were members of any particular social group and failed to show that opposition to gangs constitutes a political opinion. Orellana-Monson v. Holder, 332 Fed.Appx. 202, 203-04 (5th Cir.2009) (unpublished) (per curiam). The Orellana-Monsons petitioned for rehearing en banc, contending that this court erred by using the BIA's analysis in In re S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008), an opinion which they argued was rendered moot— and possibly nonprecedential— when the parties jointly moved for, and obtained, an administrative remand. According to the Orellana-Monsons, reliance on In re S-E-G- constituted a drastic change in this court's standard for determining what constitutes a particular social group. This court treated the petition for en banc rehearing as a petition for panel rehearing, and the panel granted the motion for rehearing and withdrew the original opinion. Orellana-Monson v. Holder, No. 08-60394 (5th Cir. Dec. 17, 2009) (unpublished order). The panel heard oral

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argument, vacated the BIA's decision and remanded the case for the BIA to explain the basis for its decision. The court stated:

It is unclear from the BIA's decision whether it concluded (1) that the Orellanas have not established a protected ground— that they are members of particular social groups; (2) that even if the Orellanas' alleged social groups are cognizable under the INA, there is not sufficient evidence that they fear persecution because of their membership in those social groups; or (3) both.

Orellana-Monson v. Holder, No. 08-60394, slip op. at 4 (5th Cir. Mar. 15, 2010) (unpublished) (per curiam).

On remand, the BIA, in a single-member ruling, determined that Salvadoran young adults who were subjected to, and who rejected, recruitment efforts of gangs, and the families of such young adults, did not possess the social visibility and particularity to constitute " membership in a particular social group." The BIA explained that Jose and Andres did not possess characteristics that would cause others to recognize them as members of the claimed social groups. Moreover, the proposed social groups were overly broad and therefore lacked the requisite particularity. Because they failed to satisfy the burden of showing past persecution on an enumerated ground, the Orellana-Monsons were not entitled to a presumption of holding a well-founded fear of future persecution. They also failed to independently establish a well-founded fear of persecution on an enumerated ground. The BIA determined that the Orellana-Monsons could not satisfy the burden for obtaining asylum; could not satisfy the higher standard for withholding; and could not satisfy the standard for relief under the Convention Against Torture (CAT). The BIA dismissed the Orellana-Monsons' appeal. The Orellana-Monsons filed a timely petition for review.

STANDARD OF REVIEW

We review only the BIA's decision, " unless the IJ's decision has some impact on the BIA's decision." Wang v. Holder, 569 F.3d 531, 536 (5th Cir.2009). Here, the BIA issued its own opinion and elaborated on its own reasoning so this court must review the BIA's decision. This court reviews the BIA's legal conclusions de novo " unless a conclusion embodies the [BIA's] interpretation of an ambiguous provision of a statute that it administers; a conclusion of the latter type is entitled to the deference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council. " Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.2006). Under Chevron, when reviewing an agency's construction of a statute that it administers, a court must determine first whether Congress has directly spoken to the question at issue. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d...

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