Amaya v. Rosen

• Decision Date: 25 January 2021
• Docket Number: No. 19-1619,19-1619
• Citation: 986 F.3d 424
• Parties: Juan Carlos AMAYA, Petitioner, v. Jeffrey A. ROSEN, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

986 F.3d 424

Juan Carlos AMAYA, Petitioner,

v.Jeffrey A. ROSEN, Acting Attorney General, Respondent.

No. 19-1619

United States Court of Appeals, Fourth Circuit.

Argued: September 9, 2020

Decided: January 25, 2021

Amended: April 12, 2021

ARGUED: Abdoul Aziz Konare, KONARE LAW, Frederick, Maryland, for Petitioner. John Frederick Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Petition for review granted in part and denied in part and case remanded for further consideration consistent with this published opinion. Judge Quattlebaum wrote the opinion, in which Judge Thacker joined. Judge Richardson wrote a dissenting opinion.

QUATTLEBAUM, Circuit Judge:

An alien may seek to avoid deportation by showing a clear probability that, if deported, he will be persecuted because of his race, religion, nationality, political opinion or membership in a particular social group ("PSG"). Relevant here, if an alien claims he will be persecuted because of his membership in a PSG, that PSG must be "particular."

Juan Carlos Amaya, a citizen of El Salvador, seeks to avoid deportation to that country, fearing persecution on account of membership in the PSG "former Salvadoran MS-13 members."¹ Appellant's Br. at 13–16. For that reason, he argued to an immigration judge ("IJ") that his removal from the United States should be withheld.² After the IJ denied Amaya's claims, he appealed to the Board of Immigration Appeals ("BIA"). The BIA dismissed Amaya's appeal, determining that the "former Salvadoran MS-13 members" PSG was "too diffuse" to satisfy the particularity requirement. J.A. 4. Assuming we must afford Chevron deference to the BIA's decision, our question is whether we think the BIA's decision is reasonable. Because we do not, we grant the petition in part and remand on this ground.

I.

For context, we begin with a brief description of the law governing Amaya's theory of relief—withholding of removal. "Consistent with our country's obligations under international law, Congress has provided that a noncitizen may not be removed to a country" where he will be persecuted or tortured, regardless of the noncitizen's eligibility for asylum. Guzman Chavez v. Hott , 940 F.3d 867, 869 (4th Cir. 2019).

The withholding of removal statute provides relief from deportation if the noncitizen shows that his "life or freedom would be threatened ... because of ... race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). The noncitizen "must show a ‘clear probability of persecution’ on account of a protected ground." Djadjou v. Holder , 662 F.3d 265, 272 (4th Cir. 2011) (quoting INS v. Stevic , 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) ). This standard is more stringent than the asylum standard because once the noncitizen "establishes eligibility for withholding of removal, the grant is mandatory." See Gandziami-Mickhou v. Gonzales , 445 F.3d 351, 353–54 (4th Cir. 2006). Although the statute does not define "particular social group," the BIA has set forth three criteria: (1) immutability, (2) social distinction and (3) particularity. See Matter of M-E-V-G- , 26 I&N Dec. 227, 237 (BIA 2014). Particularity, which is the focus of this appeal, requires that a PSG has "discrete" and "definable boundaries—it must not be amorphous, overbroad, diffuse, or subjective." Id. at 239 ; accord Crespin-Valladares v. Holder , 632 F.3d 117, 125 (4th Cir. 2011).

II.

Turning now to the pertinent facts and procedural history, Juan Carlos Amaya, a thirty-seven-year-old native and citizen of El Salvador, comes before us with a reinstated removal order. Amaya first came to the United States in 2009 to escape the MS-13 gang, of which he claims he was formerly a member. The government removed Amaya to El Salvador in 2012 pursuant to an IJ's removal order after Amaya was convicted of second-degree assault. Shortly thereafter the same year, Amaya re-entered the United States without inspection. In 2017, U.S. Immigration and Customs Enforcement ("ICE") arrested Amaya at his home in Maryland. ICE reinstated Amaya's 2012 removal order pursuant to 8 U.S.C. § 1231(a)(5). Amaya expressed a fear of persecution and torture in El Salvador and was referred to an asylum officer for a "reasonable fear" determination. See 8 C.F.R. § 208.31(b). The asylum officer determined that Amaya possessed a reasonable fear of torture if removed to El Salvador and referred the case to an IJ for withholding proceedings. See 8 C.F.R. § 208.31(c), (e). There, Amaya sought withholding of removal based on his membership in the PSG "former Salvadoran MS-13 members." J.A. 431, 436–38.

At his immigration hearing, Amaya was the only witness to testify. He testified that gang members forced him to join the MS-13 gang in 2003 in El Salvador. Once he joined the gang, he paid them $25 weekly and attended meetings, but he did not commit any crimes for them. He received MS-13 tattoos on his arm and chest, some of which he later covered. Amaya testified that he left the gang in 2004 after his daughter was born and is no longer a member. He told some other members who did not have leadership positions that he was leaving the gang. Soon after, gang members began threatening Amaya. They told him they would kill him if they got the chance, and, if he were to go to the police, they would kill his family.

In 2005, Amaya testified that an MS-13 gang member shot Amaya in the foot. The shooter called Amaya a derogatory name referencing his former membership before shooting Amaya. That same day, Salvadoran police arrested the shooter. Amaya verified the identity of the shooter in custody for police. Shortly after Amaya left the hospital, two gang members threatened him at his home. They shoved a gun in his mouth and broke two of his teeth, threatening to kill him if he testified against the shooter. Because Amaya did not testify, the government released the shooter with a restraining order for Amaya's protection. Gang members continued to threaten Amaya for leaving the gang after the shooter's release.

Amaya testified that in 2007, Salvadoran police arrested him for killing three of his soccer friends. The police told Amaya a protected witness had accused him. Amaya alleges the police wanted to find him guilty so that they could imprison him with MS-13 gang members who would kill him. The Salvadoran government detained Amaya for over a year awaiting trial. At trial, the protected witness testified that a police officer had ordered him to accuse Amaya, so the judge released Amaya. In the following year, Amaya claims that gang members continued to threaten him and accuse him of betrayal. Amaya then fled to the United States.

After the U.S. government deported Amaya in 2012 following his assault conviction, he remained in El Salvador for about a month. First, Amaya stayed with his brother, but, after a few days, gang members identified Amaya, which he claimed put his brother's family at risk. Amaya then tried to stay with his sister and later his parents, but the same thing happened. After a childhood friend tipped Amaya off that gang members were planning to kill him, Amaya fled back to the United States.

The IJ denied Amaya's withholding claim and ordered him removed. The IJ found that Amaya was not a credible witness and that there was insufficient independent evidence to support his withholding claim.³ In the alternative, the IJ held that the PSG "former Salvadoran MS-13 members" lacked particularity and social distinction. As to particularity, the IJ cited the BIA's decision in Matter of W-G-R- , which rejected a similar PSG and guided that "former association ... will often need to be further defined with respect to the duration or strength" of participation to qualify as a PSG. J.A. 65 (quoting Matter of W-G-R- , 26 I&N Dec. 208, 221–22 (BIA 2014) ). The IJ noted that this Court had yet to reach the issue but also discussed the reasoning of the Ninth and Eleventh Circuits, both of which found W-G-R- reasonable. See Reyes v. Lynch , 842 F.3d 1125 (9th Cir. 2016) ; Gonzalez v. U.S. Attorney Gen. , 820 F.3d 399 (11th Cir. 2016). Turning to Amaya's PSG, the IJ explained that it was too amorphous and thus lacked particularity. The IJ also held that Amaya's PSG was not socially distinct because "it can be difficult for society to determine who belongs to the group." J.A. 67.

Amaya timely appealed the IJ's decision to the BIA, challenging each aspect of the IJ's decision. The BIA affirmed in a single-member decision, holding that even assuming Amaya were a credible witness, he did not show that he was a member of a cognizable PSG because his proposed PSG lacked particularity. The BIA endorsed the IJ's analysis, concluding that the PSG is "too diffuse and thus lack[s] the requisite particularity." J.A. 4. Because it disposed of the withholding claim solely on the particularity issue, the BIA did not address whether the PSG was socially distinct. Amaya timely petitioned this Court for review.

III.

At the outset, it is important to note what is not before us. Amaya challenges several aspects of his removal order and makes arguments relating to his PSG's social distinction, alleged past persecution and persecution nexus. Appellant's Br. at 8–13, 15–20. But even though we review the factual findings related to those decisions under the deferential substantial evidence standard, the BIA did not address any of those issues, and, accordingly, they are not part of the final order of removal. The Immigration and Nationality Act ("INA") limits this Court's jurisdiction to final orders of removal. 8 U.S.C. § 1252(a)(1). Thus, this Court may only reach issues decided by...