Cantarero v. Holder
| Decision Date | 31 October 2013 |
| Docket Number | No. 12–1624.,12–1624. |
| Citation | 734 F.3d 82 |
| Parties | Kevin Fabricio Claros CANTARERO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Timothy J. Nutter, with whom Law Office of Timothy J. Nutter was on brief, for petitioner.
Matthew B. George, Trial Attorney, Office of Immigration Litigation, with whom Stuart F. Delery, Acting Assistant Attorney General and Mary Jane Candaux, Assistant Director were on brief, for respondent.
Before LYNCH, Chief Judge, HOWARD and KAYATTA, Circuit Judges.
Kevin Fabricio Claros Cantarero (“Claros”), a citizen and native of El Salvador, is an ex-member of a violent criminal street gang based in the United States. Claiming that he would face persecution and torture on account of his former gang membership if repatriated, Claros applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). An Immigration Judge (“IJ”) denied his applications, and the Board of Immigration Appeals (“BIA”) affirmed. We deny his petition for review.
Claros entered the United States without inspection in 2004, when he was twelve years old. He came to join his parents, who had arrived in 1992 and who became beneficiaries of the Temporary Protected Status program.1 He has lived here continuously since then.
In April 2010, the Bureau of Immigration and Customs Enforcement (“ICE”) took Claros into custody 2 and served him with a Notice to Appear charging him as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”). See8 U.S.C. § 1182(a)(6)(A)(i). Claros conceded removability and applied for asylum, withholding of removal, and relief under the CAT.
At an evidentiary hearing before an IJ, Claros testified that he joined the East Boston arm of the 18th Street gang when he was sixteen years old. The 18th Street gang is a prominent violent criminal gang that is active throughout the United States and Latin America. See Luz E. Nagle, Criminal Gangs in Latin America: The Next Great Threat to Regional Security and Stability?, 14 Tex. Hisp. J.L. & Pol'y 7, 9 (2008). Claros learned that gang membership entailed engaging in a variety of illicit activities, including robberies, thefts, and drug dealing. He received several tattoos identifying him as a member of the 18th Street gang, some of which are prominently displayed.
Two years after joining the gang, Claros became afraid of the violent nature of gang life following a gang-related shooting in the area where he was partying one night. Soon afterward, Claros experienced a religious conversion and decided to leave the gang. Some members of his gang beat him as a result. The leader of the gang warned Claros that membership in the gang was a lifelong commitment and that if he tried to leave, the gang would kill him or members of his family.
Claros testified that he feared persecution in El Salvador on account of his former gang membership. Specifically, he feared reprisals from the Salvadoran branch of the 18th Street gang for his having renounced gang membership, as well as persecution at the hands of rival gangs and police authorities. He would become an easy target, argued Claros, because of his gang tattoos.
The IJ found that Claros had indeed joined the 18th Street gang in the United States and was sincere in his desire to leave the gang. The IJ, however, rejected Claros's argument that, as a former member of the gang, he is a member of a protected social group eligible for asylum or withholding of removal. Claros's claim under the CAT fared no better, as the IJ found no evidence that the government of El Salvador is more likely than not to torture Claros or to acquiesce in his torture.
The BIA agreed with the IJ and dismissed Claros's appeal. It found controlling the principles announced in Matter of E–A–G–, 24 I. & N. Dec. 591 (BIA 2008), where it held that individuals erroneously perceived as gang members cannot constitute a “particular social group” under the INA. As in Matter of E–A–G–, the BIA here was persuaded by the Ninth Circuit's rationale in Arteaga v. Mukasey, 511 F.3d 940, 945–46 (9th Cir.2007), that Congress could not have intended to offer refugee status based on an alien's membership in a violent criminal street gang in this country. The BIA noted that the Seventh Circuit recognized an ex-gang member as a member of a protected social group in Benitez Ramos v. Holder, 589 F.3d 426, 429–30 (7th Cir.2009), but it was unpersuaded, and concluded that our circuit would not require it to follow suit.
Because Claros failed to establish that the persecution he anticipated in El Salvador was on account of a protected ground, the BIA held that he was ineligible for asylum and, by extension, for withholding of removal. The BIA also agreed with the IJ that Claros failed to show that he would more likely than not be tortured at the hands of the Salvadoran government, precluding his CAT claim. This timely appeal followed.
Persecution on the basis of “membership in a particular social group” is, along with persecution on the basis of race, religion, nationality, or political opinion, a ground for granting asylum or withholding of removal. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1), 1231(b)(3). Claros argues that former members of the 18th Street gang constitute a cognizable particular social group. The BIA rejected his claim on the grounds that membership in a violent criminal street gang cannot serve as the basis for protected-group status under the INA.
Where, as here, the BIA rejects an applicant's proffered social group on legal grounds, its decision is subject to de novo review. Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir.2004). Because we are confronted with a question implicating “ ‘an agency's construction of the statute which it administers,’ ” we follow Chevron principlesin our review of the BIA's decision. I.N.S. v. Aguirre–Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Accordingly, we first ask whether “the statute is silent or ambiguous with respect to the specific issue” before us; if so, “the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778.
The first question need not detain us long. The INA does not define the term “particular social group.” The term originated in the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, with no guidance in the legislative history as to its meaning. Sanchez–Trujillo v. I.N.S., 801 F.2d 1571, 1575 (9th Cir.1986). “Because of this indeterminacy in the drafting process, the United States, along with other developed countries, has had to struggle to give meaning to a term that has little pedigree of its own.” Henriquez–Rivas v. Holder, 707 F.3d 1081, 1095 (9th Cir.2013) (Kozinski, C.J., dissenting); see Fatin v. I.N.S., 12 F.3d 1233, 1238 (3d Cir.1993) (). Accordingly, our role in the process of interpreting this phrase is quite limited. We must uphold the BIA's interpretation, provided it is based on “a permissible construction of the statute.” Aguirre–Aguirre, 526 U.S. at 424, 119 S.Ct. 1439 (internal quotation marks omitted). We have no doubt that the BIA's decision in this case passes muster under this deferential standard.
The BIA first interpreted the phrase “particular social group” in Matter of Acosta as referring to “a group of persons all of whom share a common, immutable characteristic.” 19 I. & N. Dec. 211, 233 (BIA 1985). Recognizing that “a shared past experience” may be sufficient “in some circumstances,” the BIA noted that the “particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis.” Id. In subsequent decisions, the BIA elaborated that the proffered characteristic must make the group socially visible and sufficiently particular. See Matter of S–E–G–, 24 I. & N. Dec. 579, 582–83 (BIA 2008); see also Scatambuli v. Holder, 558 F.3d 53, 59–60 (1st Cir.2009) ().
Claros argues that his proposed group falls squarely within the BIA's definition of “particular social group” because the group is both socially visible and sufficiently particular. The BIA, however, did not rely on its social visibility criteria in rejecting Claros's claim. Indeed, the BIA cited extensively to its decision in Matter of E–A–G–, which rejected a social group composed of “young persons who are perceived to be affiliated with gangs” despite acknowledging that “[g]ang membership does ... entail some ‘social visibility.’ ” 24 I. & N. Dec. at 595. Rather, the BIA rejected Claros's proposed group on the grounds that recognizing former members of violent criminal gangs as a particular social group would undermine the legislative purpose of the INA. Like the court in Arteaga, the BIA held that it is inconceivable that “ ‘Congress, in offering refugee protection for individuals facing potential persecution through social group status, intended to include violent street gangs who assault people and who traffic in drugs and commit theft.’ ” Matter of E–A–G–, 24 I. & N. Dec. at 596 (quoting Arteaga, 511 F.3d at 945–46). In short, the BIA held that this type of shared past experience is not a cognizable group characteristic for the purposes of the INA.
We cannot say that the BIA's interpretation is either unreasonable or impermissible. See Arteaga, 511 F.3d at 944–46 (...
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