Reyes v. Lynch

• Decision Date: 30 November 2016
• Docket Number: No. 14-70686,14-70686
• Parties: Wilfredo Garay Reyes, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

842 F.3d 1125

Wilfredo Garay Reyes, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

No. 14-70686

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2016, Seattle, Washington

Filed November 30, 2016

Anne Dutton (argued) and Zachary A. Albun, Student Attorneys; Benjamin Richard Casper, Supervising Attorney; University of Minnesota Law School, Center for New Americans, Federal Immigration Litigation Clinic, Minneapolis, Minnesota; Alma David, Global Justice Law Group, PLLC, Seattle, Washington; for Petitioner.

W. Manning Evans (argued) and Susan B. Green, Senior Litigation Counsel; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

L. Rachel Lerman, Barnes & Thornburg LLP, Los Angeles, California; Chris Bayh, Barnes & Thornburg LLP, Indianapolis, Indiana; for Amicus Curiae Harvard Immigration and Refugee Clinical Program.

Fatma E. Marouf, Associate Professor of Law, Las Vegas, Nevada, as and for Amicus Curiae Immigration Clinic, University of Nevada, Las Vegas, William S. Boyd School of Law.

Brook Dooley and Sophie Hood, Keker & Van Nest LLP, San Francisco, California, for Amici Curiae Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Center for Gender & Refugee Studies, and American Immigration Lawyers Association.

Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Consuelo M. Callahan, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

Wilfredo Garay Reyes, a native and citizen of El Salvador, petitions for review of a precedential Board of Immigration Appeals ("BIA") opinion in Matter of W–G–R– , 26 I. & N. Dec. 208 (BIA 2014), wherein the BIA dismissed Garay's appeal from an Immigration Judge's ("IJ") denial of Garay's applications for withholding of removal and relief from removal under Article 3 of the Convention Against Torture ("CAT relief").¹ Garay claims he is entitled to withholding of removal because, if removed to El Salvador, he will more likely than not face persecution on account of his membership in a particular social group consisting of "former members of the Mara 18 gang in El Salvador who have renounced their gang membership" and, alternatively, a group consisting of deportees from the United States to El Salvador. Garay also maintains that he is entitled to CAT relief because he faces a clear probability of torture from the Mara 18 gang, Salvadoran death squads, and Salvadoran government actors.

We have jurisdiction under 8 U.S.C. § 1252. We deny Garay's petition in connection with his claims for withholding of removal. We conclude that the BIA's articulation of its "particularity" and "social distinction" requirements for demonstrating membership in a "particular social group" are entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We also conclude that the BIA reasonably determined that Garay's proposed particular social groups of "former members of Mara 18" and "deportees from the United States to El Salvador" are not cognizable. However, because the IJ committed legal error and the BIA employed an impermissible standard of review in assessing Garay's request for CAT relief, we grant Garay's petition with respect to the denial of his CAT claim.

I

A

In 2000, at the age of seventeen, Garay joined the Mara 18 gang in El Salvador. Upon joining Mara 18, Garay participated in three to five robberies of wealthy ranchers. Four months after Garay joined the gang, a new and more violent leader, named Francisco, took over, and the gang committed a string of armed bank robberies under his leadership. Garay, armed with a gun, served as a driver for two or three heists.

Disenchanted with Francisco's leadership style and not wishing to be further involved in bank robberies, Garay decided to leave the gang after being a member for less than a year. Garay went into hiding, moving to another town. Garay feared retribution or reprisals from Francisco, who had previously announced that anyone trying to leave could be punished with beatings or death.

After Garay fled, Francisco found Garay and shot him in the leg. Some months later, Garay was confronted in a billiard hall by machete-wielding assailants. He defended himself with his own machete and a handgun. In late 2000, Garay had his gang tattoo removed. Shortly thereafter, Garay left El Salvador and made his way to the United States.

Garay entered the United States without inspection in May 2001, at age eighteen. Now thirty-three years old, Garay has a wife and two daughters. There is no indication that Garay has been involved with gangs since entering the United States.

B

On March 25, 2009, Immigration and Customs Enforcement ("ICE") issued a Notice to Appear, alleging that Garay was unlawfully present and should be removed. Garay conceded removability as charged. Garay, represented by counsel, testified before the IJ on January 14, 2010.

Following the hearing, the IJ issued an oral decision, in which he found Garay credible. The IJ pretermitted Garay's application for asylum because it had not been filed within a year of his entry into the United States.

Addressing Garay's withholding claim, the IJ concluded that, although Garay had been subjected to persecution in El Salvador, he had not established that he was persecuted on account of his membership in a particular social group consisting of "former members of Mara 18 in El Salvador who have renounced their gang membership." The IJ noted Garay's four-to-six month active membership in Mara 18 and reasoned that "[a]lthough the respondent has clearly indicated that he wishes to renounce his gang membership, he cannot disassociate himself from the volitional activities with which he was involved as a member of the Mara 18 gang." The IJ also noted that Garay had submitted background materials "which indicate that El Salvadoran gangs may have multiple motivations and modus operandi in their particular groups."

Denying Garay's withholding claim, the IJ cited Arteaga v. Mukasey , 511 F.3d 940 (9th Cir. 2007), and Matter of E–A–G– , 24 I. & N. Dec. 591 (BIA 2008), as authority for the proposition that membership in a violent criminal gang cannot serve as the basis for a particular social group. The IJ did not address whether Garay had demonstrated a nexus to his purported membership in a social group. The IJ also did not address Garay's alternative proposed social group of "deportees from the United States to El Salvador."

Addressing Garay's claim for CAT relief, the IJ noted that Garay had testified that he feared arrest by the police and that he could be subject to reprisals from his former fellow gang members if removed to El Salvador. The IJ concluded that Garay had not shown a likelihood that he would be arrested because Garay had failed to demonstrate that the police have been searching for him or that he had been charged with any crimes in El Salvador. Regarding reprisals from the gang, the IJ stated that Garay had "suggested in his written application for relief that if he is located by his former gang that he could be subject to various brutal forms of treatment, including having a tire placed on him being filled with gasoline." However, the IJ observed that Garay had not mentioned his fear of that specific threat during his hearing, but had "indicated that he believes that he would be killed by his former gang members." The IJ then stated that the materials Garay had submitted "contain little if any information concerning the treatment of former gang members such as [himself] upon their return to El Salvador beyond being killed." The IJ concluded that Garay had "failed to demonstrate by any standard that he would be subjected to torture."

The IJ ordered Garay removed to El Salvador. Garay timely appealed to the BIA.

C

On February 7, 2014, the BIA panel dismissed Garay's appeal in a precedential decision, Matter of W–G–R– , 26 I. & N. Dec. 208 (BIA 2014). In Matter of W–G–R– , and in a companion precedential decision issued the same day, Matter of M–E–V–G– , 26 I. & N. Dec. 227 (BIA 2014), the BIA clarified the requirements that an applicant for asylum or withholding of removal must satisfy in order to demonstrate membership in a particular social group. The applicant must "establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." M–E–V–G– , 26 I. & N. Dec. at 237 ; see also W–G–R– , 26 I. & N. Dec. at 212.

In Matter of W–G–R– , the BIA reviewed its historical efforts to construe the statutory term "particular social group" as it applies in asylum and withholding cases. 26 I. & N. Dec. at 209–10. The BIA explained that its articulation of the "particularity" and "social visibility" requirements was not a departure from or abrogation of its construction of a "particular social group" in Matter of Acosta , 19 I. & N. Dec. 211 (BIA 1985).² Id. at 211–12 (citing Henriquez – Rivas v. Holder , 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc)). Instead, the BIA explained, the requirements "clarified the definition of the term [‘particular social group’] to give it more ‘concrete meaning through a process of case-by-case adjudication.’ " Id. at 212 (quoting INS v. Aguirre – Aguirre , 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ). In Matter of W–G–R– , the BIA adhered to its previous holdings that "both particularity and social visibility are critical elements in determining" the cognizability of a particular social group, but re-named the "social visibility" criterion as "social distinction." Id.

The BIA observed that the term "particularity" is included in the plain language of the statute. Id. at 213. The BIA explained that "[t]he particularity requirement also derives from the concept of...