Sanchez-Trujillo v. I.N.S.

Decision Date15 October 1986
Docket NumberNo. 85-7609,SANCHEZ-TRUJILLO,85-7609
Citation801 F.2d 1571
PartiesLuis Alonzo, and Luis Armando Escobar-Nieto, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Marc Van Der Hout, San Francisco, Cal., Carolyn Patty Blum, Berkeley, Cal., for petitioners.

Ellen Lutz, Aclu Foundation of Southern Cal., Los Angeles, Cal., amicus curiae, for ACLU Foundation of Northern & Southern Cal., & Nat. Lawyers Guild, Seattle, Chapter.

Lauri Steven Filppu, Deputy Director, Joan E. Smiley, Atty., Dept. of Justice, Washington, D.C., for respondent.

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

Before CHOY, ALARCON and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Petitioners, Luis Alonzo Sanchez-Trujillo and Luis Armando Escobar-Nieto, citizens of El Salvador who entered the United States without inspection, applied for asylum and prohibition of deportation. They petition for review of a final order of the Board of Immigration Appeals ("BIA") denying their requests for relief from deportation on account of their membership in a purportedly persecuted social group of young, working class males who have not served in the military of El Salvador. The BIA also denied their claims based upon individual allegations of persecution on account of actual or imputed political opinion. We affirm the decision of the BIA, and deny the petition for review.

I BACKGROUND

The Immigration & Naturalization Service ("INS") instituted deportation proceedings against Sanchez and Escobar in June, 1980, and October, 1980, respectively The petitioners maintained that they were entitled to asylum and prohibition of deportation because they feared persecution as members of a "particular social group" consisting of young, urban, working class males of military age who had never served in the military or otherwise expressed support for the government of El Salvador. In his decision rendered September 7, 1982, the Immigration Judge ("IJ") found that such a large division of the population did not constitute a cognizable "social group" within the meaning of 8 U.S.C. Secs. 1101(a)(42)(A), 1253(h). Moreover, he concluded that mere group membership, without evidence of persecution directed at the individual petitioner, was not sufficient to maintain a claim for asylum or prohibition of deportation.

charging them with entry into the United States without inspection in violation of 8 U.S.C. Sec. 1251(a)(2). At their joint deportation hearing commencing April 12, 1982, both petitioners conceded deportability but indicated a desire to apply for asylum as refugees under 8 U.S.C. Sec. 1158(a). 1

In addition to his group membership claim, Sanchez alleged a fear of individual persecution based upon actual or imputed political opinion. 2 He testified that on four occasions, he, along with several others, had been briefly detained by government security officers to be searched for weapons and to inspect documents. These incidents did not result in any arrests. Sanchez had also been a member of a Catholic youth organization. Following demonstrations near the church, the priest who led the organization disappeared for a month and returned with bruises on his face. Finally, after his entry into the United States, Sanchez was briefly associated with an organization which protested conditions in El Salvador.

Escobar maintained a claim for relief from deportation by alleging a fear of persecution based upon political opinion. He testified that on one occasion, he had been attacked at night upon the streets of San Salvador by men traveling in a vehicle with government license plates. He was beaten and robbed, but then released. There was no apparent motive for the attack. In addition, he had been present at two demonstrations which had been violently dispersed by government security forces, although Escobar was not involved in the violence.

The IJ concluded that Sanchez and Escobar had failed to present sufficient evidence to establish a claim for asylum or prohibition of deportation based upon a fear that they would be singled out for persecution upon deportation.

On October 15, 1985, the Board of Immigration Appeals ("BIA") affirmed the IJ's findings, holding that status as a young, urban, working class male without military service did not constitute membership in a "particular social group" under the applicable statutes. The BIA further concluded that neither petitioner had established a "well-founded fear" of persecution to be eligible for asylum under 8 U.S.C. Sec. 1158(a) or a "clear probability of persecution" to warrant prohibition of deportation under 8 U.S.C. Sec. 1253(h). The BIA granted thirty days to the petitioners for voluntary departure.

Sanchez and Escobar seek review in this court of the BIA's decision as a final order of deportation under 8 U.S.C. Sec. 1105a.

II PERSECUTION BASED UPON SOCIAL GROUP MEMBERSHIP
A. Refugee Status Based Solely on Group Membership

An alien who can demonstrate that his individual circumstances present a "clear Some commentators have also contended that eligibility for asylum and prohibition of deportation may be premised solely upon the alien's membership in a racial, religious, ethnic, or social group which has been targeted for persecution. See, e.g., Helton, Persecution on Account of Membership in a Social Group as a Basis for Refugee Status, 15 Colum.Hum.Rts.L.Rev. 39 (1983); Blum, The Ninth Circuit and the Protection of Asylum Seekers Since the Passage of the Refugee Act of 1980, 23 San Diego L.Rev. 327, 353 (1986). The petitioners' principal claim for relief in this case is based upon the theory that they are representatives of an identifiable "social group" of young, urban, working class males of military age who have never served in the military or otherwise expressed support for the government. Since members of this "particular social group" are allegedly targeted for persecution as a class by the government of El Salvador, the petitioners claim their membership in this group is sufficient in itself to establish their eligibility for relief.

probability" or a "well-founded fear" of persecution based upon one of five statutory factors, "race, religion, nationality, membership in a particular social group, or political opinion," is eligible for prohibition of deportation or a discretionary grant of asylum. See 8 U.S.C. Secs. 1253(h), 1101(A)(42)(a). Ordinarily, an alien must establish, through specific, direct, and concrete evidence, that he personally would be singled out for persecution on account of one of these statutory factors, or that there is a reasonable possibility of such persecution.

Although no court has directly addressed this point, we previously have strongly indicated that, under the proper circumstances, a claim of persecution premised solely upon group membership could be maintained. In Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir.1985), we noted that a previous decision should not be read to suggest--

that membership in a persecuted group is insufficient in itself to require a finding of eligibility for asylum or an order prohibiting deportation. Such a suggestion would squarely contradict history. Few could doubt, for example, that any Jew fleeing Nazi Germany in the 1930's or 40's would by virtue of his or her religious status alone have established a clear probability of persecution.

Id. at 515-16 n. 6 (citation omitted).

Still, the claim made by the petitioners in this case, that of persecution based upon status as young urban males who have maintained political neutrality in El Salvador, has been repeatedly rejected by this court. See, e.g., Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (alien's "status as a young urban male unallied with either faction" in El Salvador was "not specific enough for political asylum"); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir.1984) (alien's "status as a 'young urban male' is not specific enough for asylum"); see also Vides-Vides v. INS, 783 F.2d 1463, 1467 (9th Cir.1986) (quoting Chavez, 723 F.2d at 1434).

The petitioners argue that these previous decisions are distinguishable because the aliens in those cases failed to present specific proof that the identified social group was indeed targeted for persecution by authorities in El Salvador. In contrast, the petitioners in this case submitted considerable evidence, through numerous witnesses and exhibits, in support of their claims for asylum and prohibition of deportation based upon group membership. It does appear that the aliens in our previous cases failed to proffer any evidence in support of their claims. Consequently, those decisions cannot be read to have conclusively resolved the issue raised by these petitioners in the instant case.

In determining whether the petitioners have established eligibility for relief premised upon group membership, four questions must be answered. First, we must decide whether the class of people identified by the petitioners is cognizable as a "particular social group" under the immigration statutes. See 8 U.S.C. Secs. 1101(a)(42)(A), 1253(h). Second, the petitioners must have established that they

                qualify as members of the group. 3   Third, it must be determined whether the purported "social group" has in fact been targeted for persecution on account of the characteristics of the group members.  Finally, we must consider whether such "special circumstances" are present to warrant us in regarding mere membership in that "social group" as constituting per se eligibility for asylum or prohibition of deportation. 4   See Chavez, 723 F.2d at 1434 (quoting Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982))
                
B. Cognizability as a "Particular Social Group"

The threshold question is whether the petitioners' class of young, urban, working class males constitutes that type of "particular social...

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