Garcia-Callejas v. Holder

• Decision Date: 24 January 2012
• Docket Number: No. 11–1084.,11–1084.
• Citation: 666 F.3d 828
• Parties: Juan Antonio GARCIA–CALLEJAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

666 F.3d 828

Juan Antonio GARCIA–CALLEJAS, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–1084.

United States Court of Appeals, First Circuit.

Submitted Nov. 10, 2011.Decided Jan. 24, 2012.

Robert M. Warren on brief for petitioner.

Anthony P. Nicastro, Senior Litigation Counsel, Tony West, Assistant Attorney General, Civil Division, and Dana M. Camilleri, Office of Immigration Litigation, Civil Division, Department of Justice, on brief for respondent.

Before BOUDIN, LIPEZ and HOWARD, Circuit Judges.

PER CURIAM.

Juan Antonio Garcia–Callejas, a native and citizen of El Salvador, challenges a 2009 decision by the Board of Immigration Appeals (“the Board”) denying his application for withholding of removal. Garcia–Callejas was born in El Salvador and entered the United States illegally on or about May 9, 2006. The Department of Homeland Security brought removal proceedings. 8 U.S.C. § 1182(a)(6)(A)(i) (2006). Garcia–Callejas conceded removability and filed an application for withholding of removal and Convention Against Torture (“CAT”) protection.¹ See 8 C.F.R. §§ 1208.16– 18 (2011).

At the hearing before an immigration judge (“IJ”) Garcia–Callejas' central claim was that he would be harmed by criminal gangs, prevalent in El Salvador, whose attempts to recruit him he had resisted before he left for the United States. He also asserted that the gangs would perceive him as wealthy because of his time in the United States and therefore subject him to further threats and violence. The IJ held that his fear was genuine, but that there was neither a sufficient likelihood of harm nor was the feared harm directed at a statutorily protected social group. The Board affirmed on the latter ground without reaching the former.

As Garcia–Callejas frames his claim, he must establish that his “life or freedom would be threatened ... because of [his] ... membership in a particular social group.” 8 U.S.C. § 1231(b)(3)(A). Here, the category to which Garcia–Callejas seeks to assign himself, whether as target of gang recruitment or a returnee perceived as wealthy, does not constitute a “social group” under the Board's precedents, which have several times been affirmed by this court. This is so regardless of the degree of threat (or lack of it) and the government's responsibility (or lack of it) for the alleged threat.

The Board and the courts have grappled regularly with the meaning and application of the “social group” concept as used in the statute; the “social group” concept, like companion categories in the statute not here in issue (“race, religion, nationality ... or political opinion,” 8 U.S.C. § 1231(b)(3)(A)), aims to identify those whom the statute is designed centrally to protect. There are criteria, but they are inherently rather general. E.g. Scatambuli v. Holder, 558 F.3d 53, 58–60 (1st Cir.2009).²

Accordingly, guidance is most easily obtained from their application in particular cases where such precedents exist. And here our own decisions are directly in point. We have previously rejected the proposed social group of “young women recruited by gang members who resist such recruitment” in El Salvador. Mendez–Barrera v. Holder, 602 F.3d 21, 27 (1st Cir.2010); see also Larios v. Holder, 608 F.3d 105, 108–09 (1st Cir.2010) ( “young Guatemalan men recruited by gang members who resist such recruitment”); Díaz Ruano v. Holder, 420 Fed.Appx. 19, 21–22 (1st Cir.2011) (unpublished opinion) (“young male[s] sought out for information and recruitment by the criminal gang of Guatemala”).

We have also rejected social groups based solely on perceived wealth, even if signaling an increased vulnerability to crime. Sicaju–Diaz v. Holder, 663 F.3d 1, 4 (1st Cir.2011); see also Perez–Valenzuela v. Holder, 363 Fed.Appx. 759, 760 (1st Cir.2010) (unpublished opinion) (“Guatemalan m [e]n ... perceived by gang members to have disposable money available”); López–Castro v. Holder, 577 F.3d 49, 54 (1st Cir.2009) (“hostile treatment based on economic considerations”).

These decisions, in turn, are consistent with established Board precedent, In re E–A–G–, 24 I. & N. Dec. 591 (BIA 2008); In re S–E–G–, 24 I. & N. Dec. 579 (BIA 2008); In re A–M–E & J–G–U–, 24 I. & N. Dec. 69 (BIA 2007), and the Board is entitled to deference on its reasonable interpretations of ambiguous statutory language, such as that in issue here. Scatambuli, 558 F.3d at 58; see also Sicaju–Diaz, 663 F.3d at 4 (citing INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

On this appeal, Garcia–Callejas has (impermissibly) adjusted, although modestly, the definition of his proposed...