Pirir-Boc v. Holder

Citation750 F.3d 1077
Decision Date07 May 2014
Docket NumberNo. 09–73671.,09–73671.
PartiesOliverto PIRIR–BOC, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

OPINION TEXT STARTS HERE

Roger S. Green (argued) and Jenny Tsai, Green & Tsai, San Francisco, California, for Petitioner.

Dawn S. Conrad (argued), Sarah L. Vuong, and Kimberly A. Burdge, Trial Attorneys; Song Park, Senior Litigation Counsel; Tony West and Stuart F. Delery, Assistant Attorneys General; Emily Anne Radford, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A200–033–237.

Before: STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges, and WILLIAM K. SESSIONS, District Judge.*

OPINION

REINHARDT, Circuit Judge:

Oliverto Pirir–Boc (Pirir–Boc) was granted asylum by the Immigration Judge (“IJ”) based on his well-founded fear of persecution as a member of a particular social group characterized as individuals “taking concrete steps to oppose gang membership and gang authority.” The Board of Immigration Appeals (“BIA”) vacated the grant of asylum on the ground that Pirir–Boc's “purported social group lacks the requisite particularity and social visibility.” Pirir–Boc filed a petition for review. After briefing was complete, this court issued the en banc decision, Henriquez–Rivas v. Holder, 707 F.3d 1081, 1083 (2013) (en banc), holding that “witnesses who testify against gang members” may be cognizable as a particular social group for the purposes of asylum. We then ordered supplemental briefing in this case. Three days before oral argument, the BIA issued two published decisions designed to clarify its interpretation of the phrase “particular social group”: Matter of W–G–R–, 26 I. & N. Dec. 208 (2014), and Matter of M–E–V–G–, 26 I. & N. Dec. 227 (2014). We hold that these two decisions do not affect the validity of Henriquez–Rivas, and we remand Pirir–Boc's petition to the BIA for consideration in light of WG–R, ME–VG–, and Henriquez–Rivas.

I

The IJ granted Pirir–Boc asylum after finding his testimony credible. Pirir–Boc is a native and citizen of Guatemala who identifies as Cakchiquel, an indigenous minority ethnic group, and did not learn Spanish until age 10. He was recruited by the Mara Salvatrucha, a violent Central American gang, but refused to join. His younger brother, however, joined the gang and pledged himself to it for life. Pirir–Boc viewed the Mara Salvatrucha as “criminals who rape women and rob people and disapproved of his brother's decision to join. Within the hearing of members of the Mara Salvatrucha, Pirir–Boc told his brother that he must leave the gang. Pirir–Boc was eventually able to help his brother defect and move to their grandparents' village, three hours away.

After his brother left the gang, members of the Mara Salvatrucha came looking for Pirir–Boc at his home several times. He sent his wife and small child away and went into hiding in the cliffs. Gang members continued to look for him at all hours, but he evaded them by not returning home. When Mara Salvatrucha members had not come to his house for eight days, Pirir–Boc returned. Ten or eleven gang members caught him and beat him severely, telling him that [he has] to die.” He continues to suffer effects from that beating.

Out of the “fear of losing [his] life” and never being able to “sleep in [his] own house” again, Pirir–Boc fled Guatemala with his younger brother. His wife subsequently informed him that the Mara Salvatrucha was still looking for him in Guatemala.

The IJ found Pirir–Boc eligible for asylum based on his past persecution and his well-founded fear of future persecution “on account of his membership in a particular social group of persons taking concrete steps to oppose gang membership and gang authority.” 1 She found that Pirir–Boc “took specific action to dissuade his brother from continuing in his membership in a criminal gang” and,

by taking this action, allied himself with a particular social group of persons directly in opposition to gang activities and gang membership. Although [Pirir–Boc] does not belong to an organization, per se, the Country Reports and background material ... indicate that there are concerted efforts in Guatemala to combat gang activity. The Court notes that voluntarily associating oneself with a group may be evidence of membership in a particular social group.

The IJ also found that Pirir–Boc “has been visible and outspoken in his actions against the gang.” In addition, she found that the authorities in Guatemala were unwilling or unable to protect him. The IJ did not consider whether Pirir–Boc was eligible for relief under the Convention Against Torture (“CAT”), noting that he had not applied for such relief.

The government appealed the IJ's decision, and the BIA sustained the appeal and vacated the IJ's finding of eligibility. The BIA incorporated the IJ's fact-finding in its decision, noting that [t]he facts of this case are not in dispute.” It then applied intervening authority from the BIA and this court 2 to those facts and held that the purported social group of “those who have taken direct action to oppose criminal gangs” was not meaningfully distinguishable from Salvadoran “youths who have resisted gang recruitment, or family membersof such Salvadoran youth,” the group the BIA had rejected in Matter of S–E–G–, 24 I. & N. Dec. 579, 582 (2008). The BIA decided that [a]lthough the respondent was seen by gang members to tell his brother to leave the gang, his purported social group lacks the requisite particularity and social visibility” and reversed the IJ's finding of eligibility. The BIA denied Pirir–Boc's claim for withholding of deportation because he had failed to satisfy the less burdensome standard for asylum. The BIA also rejected Pirir–Boc's claim for relief under the Convention Against Torture, finding that he had “failed to establish a prima facie case for eligibility” for that type of relief.

III
A

A petitioner is eligible for asylum if he is determined to be a refugee within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42)(A). An individual qualifies as a refugee when he is “unable or unwilling to return to [his last country of residence] ... 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.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); Cordoba, 726 F.3d at 1108.

Pirir–Boc's petition involves the construction of the term “particular social group.” Since the BIA considered Pirir–Boc's petition, the term has been interpreted in an en banc decision of this court, Henriquez–Rivas v. Holder, 707 F.3d 1081 (2013), and in two published decisions by the BIA, W–G–R–, 26 I. & N. Dec. 208 (2014), and M–E–V–G–, 26 I. & N. Dec. 227 (2014). We first consider whether the BIA's new decisions affect the interpretation we set forth in Henriquez–Rivas, and conclude that Henriquez–Rivas remains valid in both holding and reasoning, with one minor qualification.

Prior to Henriquez–Rivas, the BIA defined “particular social group” as a group (1) that consisted of people who share an “immutable characteristic ‘so fundamental to one's identity that a person should not be required to abandon it,’ 3Henriquez–Rivas, 707 F.3d at 1084 (quoting Hernandez–Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000)); and (2) that had what the BIA called “social visibility” and “particularity.” Henriquez–Rivas, 707 F.3d at 1084–85. In S–E–G–, the BIA had found that a proposed social group of “Salvadoran youth who have been subjected to recruitment efforts by MS–13 and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang's values and activities” did not have “particularity” because it was too “amorphous,” and that it did not have “social visibility” because there was little evidence that such youths would be “perceived as a group by society.” Henriquez–Rivas, 707 F.3d at 1085;S–E–G–, 24 I. & N. Dec. at 584–85, 587.

In Henriquez–Rivas we considered whether witnesses who testify against gang members constitute a particular social group under the BIA's precedent. 707 F.3d at 1081. As in Pirir–Boc's case, the IJ found Henriquez–Rivas eligible for asylum but the BIA reversed that determination, holding that the proposed social group “lacks the requisite social visibility.” Id. at 1091. The BIA did not fully explain its position, but instead cited S–E–G– and other cases now subject to the revised standard of W–G–R– and M–E–V–G–. Id. We vacated the BIA's decision, holding that the BIA had “erroneously assumed” that the putative social group was not cognizable under its precedent, and that because of this erroneous assumption, the BIA had ignored “significant evidence” that Salvadoran society recognizes the group in question as a particular social group. Id. at 1092. We noted that the evidence before the BIA strongly suggested...

To continue reading

Request your trial
216 cases
  • Diaz-Reynoso v. Barr
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 Agosto 2020
    ...v. Holder , 683 F.3d 1164, 1169 (9th Cir. 2012). We review de novo the BIA's determinations on questions of law. Pirir-Boc v. Holder , 750 F.3d 1077, 1081 (9th Cir. 2014). We review for substantial evidence the BIA's factual findings, which "should be upheld ‘unless the evidence compels a c......
  • Gallardo v. Barr
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 6 Agosto 2020
    ...U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Pirir-Boc v. Holder , 750 F.3d 1077, 1081 (9th Cir. 2014). Thus, to define the elements of a generic "offense relating to obstruction of justice" under § 1101(a)(43)(S), we must fi......
  • Amaya v. Rosen
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 25 Enero 2021
    ...and in contrast to social distinction, it should not depend on "evidence" or society's perceptions. See, e.g. , Pirir-Boc v. Holder , 750 F.3d 1077, 1084 (9th Cir. 2014) (holding that social distinction requires a case-by-case evidentiary inquiry). That is not to suggest that whether a soci......
  • Vasquez-Rodriguez v. Garland
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 5 Agosto 2021
    ..."case-by-case determination[s] as to whether the group is recognized by the particular society in question." Pirir-Boc v. Holder , 750 F.3d 1077, 1084 (9th Cir. 2014). We conclude that the approach set forth in Matter of E-A-G- is inconsistent with the requisite fact-based analysis of propo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT