Arteaga v. Mukasey
Decision Date | 27 December 2007 |
Docket Number | No. 05-70368.,05-70368. |
Citation | 511 F.3d 940 |
Parties | Jean Pierre ARTEAGA, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
Genevieve Holm and Jonathan Robbins, United States Department of Justice, Civil Division, Washington, DC, for respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-085-513.
Before: STEPHEN S. TROTT and JOHNNIE B. RAWLINSON, Circuit Judges, and SAMUEL P. KING,** Senior Judge.
Abraham Lincoln, one of our nation's wisest presidents and most able lawyers, had an incisive way of illustrating a point about the meaning of language as used in the law. He would ask, "If you call a dog's tail a leg, how many legs does a dog have?" He would then reject the usual answer "five" with the statement that calling a tail a leg doesn't make it a leg, "the answer is still four." We find useful in Part IV A. of this opinion President Lincoln's admonition not to become misled by expansive and abstract definitions of the term "social group" to the extent that the application of such a definition fails to comport with the manifest legislative purpose of the law and its language.
Jean Pierre Arteaga, a long-time lawful permanent resident of the United States, faces removal to El Salvador. He petitions for review of a decision of the Board of Immigration Appeals dismissing his appeal from an immigration judge's ("IJ") order finding him removable as an alien convicted of an aggravated felony and of an offense related to a controlled substance, and denying him withholding of removal and relief under the Convention Against Torture ("CAT"). Before this court Arteaga argues, inter alia, that because he is marked with indelible tattoos indicating his gang membership and may therefore be persecuted by rival gang members if returned to his home country, he qualifies for withholding of removal under 8 U.S.C. § 1231(b)(3) as a member of a "social group." He defines this group variously as "American Salvadorian U.S. gang members of a Chicano American street gang," and as former members of the same. We have jurisdiction to address this question pursuant to 8 U.S.C. § 1252(a)(2)(D),1 and we hold that Arteaga does not qualify for withholding of removal as a member of a social group.
Moreover, the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) requires us to dismiss the portion of Arteaga's petition based on his claim that his conviction under California Vehicle Code § 10851(a) does not constitute an aggravated felony.
We deny the remainder of his petition because, Arteaga's arguments notwithstanding, 1) he is not a national of the United States, 2) he is not entitled to relief under the CAT, and 3) the IJ who presided over his hearing was not biased.
At the age of four, Arteaga's parents brought him from El Salvador to the United States, where he was admitted as a lawful permanent resident. He lived in Los Angeles, and when he was fourteen years old joined a malignant Mexican street gang called "New Hall 13." As a New Hall 13 member, Arteaga would go "gang banging," participating in violent fights involving knives and guns, and going into rival-gang neighborhoods to find rivalgang members to beat up or run over with a vehicle. In removal proceedings, he testified that his participation in gang activity made him a target for violent attacks by rival gangs.
Arteaga testified that while some members of his gang committed crimes, such as trading in drugs and stealing, he did not. However, Arteaga was convicted in California Superior Court of 1) possession of methamphetamine in violation of California Health and Safety Code § 11377(a), 2) unlawful driving and taking of a vehicle in violation of California Vehicle Code § 10851(a), and 3) possession of a concealed weapon in violation of California Penal Code § 12025(a)(2). He was sentenced to two years for each conviction, the sentences to run concurrently. Subsequently, the Department of Homeland Security charged Arteaga with removability as an alien convicted of an aggravated felony and an offense related to a controlled substance.2
At his hearing before the IJ, Arteaga argued that he was not a removable alien because he was a "national of the United States." He testified that he had applied for citizenship in 1995 when he was nineteen years old, but his application was denied due to outstanding traffic tickets, and he never reapplied. Arteaga never took the oath of citizenship. The IJ ruled that Arteaga (1) was not a national because he was not born in the United States or a territory of the United States, (2) was not the child of an individual born in the United States or a territory of the United States, and (3) his presence in the United States did not make him a national. The IJ ruled also that while Arteaga's drug conviction was not an aggravated felony, his conviction pursuant to California Vehicle Code § 10851(a) was, and therefore the only forms of relief available to him were withholding of removal and protection under the CAT.
In support of his argument that he qualified for withholding and CAT relief, Arteaga presented documentary evidence, including two written statements from an El Salvadoran magistrate, showing that the El Salvadoran government, like other central American governments, has duly enacted "Mano Duro" laws aimed at cracking down on gang violence. According to the evidence, an alien removed from the United States to El Salvador will be detained for seventy-two hours if suspected of gang affiliation while undergoing a registration process prescribed by the Mano Duro laws. Arteaga testified that he could not clothe himself to adequately conceal all of his tattoos, which cover a substantial portion of his body including his head, hands, and arms, and which mark him as a gang member. Therefore, Atreaga argued, he would be unable to conceal his identity as a member of New Hall 13, and if removed to El Salvador would be placed in detention, where rival gang members would identify and kill him.
Noting that the crux of Arteaga's argument was the tattoos indicating his association with a criminal street gang, the IJ ruled that Arteaga was not a member of a social group as that concept has been incorporated in our laws providing for the possibility of asylum in our nation. The IJ denied CAT relief, finding that Arteaga did not present evidence showing that it was more likely than not he would be persecuted or tortured if removed to El Salvador. The IJ noted that one of the El Salvadoran magistrate's written statements said that due process was generally afforded individuals subject to Mano Duro laws, and that El Salvadoran government officials were not complicit in the abuses of persons housed in El Salvadoran jails.
Arteaga appealed to the BIA. Relying on Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985) ( ), the BIA agreed with the IJ's analysis and dismissed his appeal. Arteaga timely filed a petition for review in this court.
We have jurisdiction to review questions of law raised upon a petition for review, and review them de novo. See 8 U.S.C. § 1252(a)(2)(D); Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001). The BIA's statutory interpretation is entitled to deference, but the court is not obligated to accept an interpretation clearly contrary to the plain and sensible meaning of a statute. Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir.2003). The court reviews de novo the legal question of whether a petitioner is a national of the United States. Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 966 (9th Cir.2003). The BIA's findings underlying its determination that an applicant is not eligible for relief under the CAT are reviewed for substantial evidence. See Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004). Under the substantial evidence standard, the court upholds the BIA's determination unless the evidence in the record compels a contrary conclusion. Prasad v. INS, 101 F.3d 614, 616-17 (9th Cir.1996).
In the Ninth Circuit, a social group is defined abstractly as a group united by 1) a voluntary association which imparts some common characteristic that is fundamental to the members' identities, or 2) an innate characteristic which is so fundamental to the identities or consciences of its members they either cannot or should not be required to change it. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1092-93 (9th Cir.2000). This disjunctive definition reconciles the "voluntary association category" of social groups we recognized in Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986), with the requirement the BIA articulated in Matter of Acosta, 19 I. & N. Dec. at 233, that members of a social group exhibit some "immutable characteristic." Hernandez-Montiel, 225 F.3d at 1093. In Hernandez-Montiel, we explained that the Ninth Circuit's definition of voluntary associations qualifying as "social groups" is "similar to the Supreme Court of Canada's definition: ... groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake that association[.]" 225 F.3d at 1093 n. 6. In the Ninth Circuit, an individual may therefore be a member of a social group because of either certain innate characteristics or on the basis of certain voluntary associations. Further clarifying the definition of "particular social group," the BIA recently ruled that certain factors, including whether a group's shared characteristic gives members social visibility and whether the group can be defined with sufficient particularity to delimit its membership, should be considered in determining whether a particular social group exists. In re A-M-E, 24 I. & N. Dec. 69, 74-76 (BIA ...
To continue reading
Request your trial-
Ojo v. Garland
......Mukasey , 535 F.3d 98, 100 (2d Cir. 2008) ("[O]ur review is confined to those reasons for denying relief that were adopted by the BIA."). The government ... See, e.g., Yokoyama , 571 F. Appx at 14 ; Yue Hae Zhong , 346 F. Appx at 35 ; Arteaga , 511 F.3d at 945-46 ; Toussaint , 455 F.3d at 418 ; Elien , 364 F.3d at 397 ; Aranda-Hernandez , 95 F.3d at 980-81 ; Bastanipour , 980 F.2d ......
-
Zetino v. Holder
...... that he belongs to a `particular social group' within the meaning of section 101(a)(42)(A) of the Act." The BIA relied on our decision in Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007), where we held that a tattooed alien's membership in a violent criminal gang was not "social group" ......
-
Henriquez-Rivas v. Holder
...... The court held that to the extent that Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008), Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009), and related cases mischaracterized the "social visibility" ... See Barrios v. Holder, 581 F.3d 849, 855 (9th Cir. 2009); Ramos-Lopez, 563 F.3d at 858-59; Arteaga v. Mukasey, 511 F.3d 940, 944-45 (9th Cir. 2007). An en banc court can do many things, but it can't simply declare a question ......
-
Henriquez–Rivas v. Holder
...... The term “particular social group” is ambiguous. Donchev v. Mukasey, 553 F.3d 1206, 1215 (9th Cir.2009). The BIA first interpreted the term “particular social group” in Matter of Acosta, 19 I. & N. Dec. 211 ... See Barrios v. Holder , 581 F.3d 849, 855 (9th Cir.2009); Ramos–Lopez, 563 F.3d at 858–59; Arteaga......
-
Do I need to pin a target to my back? The definition of "particular social group" in U.S. asylum law.
...of the two-alternatives test and Chevron deference). This mixed approach can be better understood by looking at Arteaga v. Mukasey, 511 F.3d 940, 944-45 (9th Cir. 2007), which the Velasco-Cervantes court cited as the source for the proposition that the two-alternatives test is given content......
-
The invisible refugee: examining the Board of Immigration Appeals' "social visibility" doctrine.
...stating social visibility as a requirement and later characterizing it as a criterion to consider). (200.) E.g., Arteaga v. Mukasey, 511 F.3d 940, 945 (9th Cir. 2007) (citing A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74 (B.I.A. (201.) 23 I. & N. Dec. 951, 956, 960 (B.I.A. 2006) (citin......