In re E-R-A-L-

• Decision Date: 10 February 2020
• Docket Number: Interim Decision #3976
• Citation: 27 I&N Dec. 767
• Parties: Matter of E-R-A-L-, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 767

Matter of E-R-A-L-, Respondent

Interim Decision #3976

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

February 10, 2020

(1) An alien's status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal.

(2) To establish a particular social group based on landownership, an alien must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and that the group is defined with particularity and is perceived to be socially distinct in the society in question.

(3) The respondent's proposed particular social groups—comprised of landowners and landowners who resist drug cartels in Guatemala—are not valid based on the evidence in the record.

FOR RESPONDENT: John Ayala, Esquire, Burbank, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Forstil, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, Acting Chairman; CREPPY and HUNSUCKER, Board Members.

MALPHRUS, Acting Chairman:

In a decision dated April 18, 2017, an Immigration Judge denied the respondent's applications for asylum and withholding of removal pursuant to sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2012), and for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"), but granted his request for voluntary departure. The respondent has appealed from that decision. The appeal will be dismissed, and voluntary departure will be reinstated.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala who is present in the United States without being admitted or paroled. After he was placed in removal proceedings, the respondent applied for asylum and related forms of relief and protection from removal. On November 6, 2014, the Immigration Judge denied his applications, and the respondent appealed.

On May 24, 2016, we remanded the record to the Immigration Court for further proceedings. At the remanded proceedings, the Immigration Judge accepted additional evidence, including proof of land ownership by the respondent's father, a December 2011 report titled "Criminal Organizations and Illicit Trafficking in Guatemala's Border Communities," and the Department of State 2015 country report on human rights practices in Guatemala.

The respondent testified below that he and his family lived in El Progreso, Guatemala. There, his family operated a farm on approximately 2 square kilometers of land that the respondent's grandfather had given to his father. The respondent and his four siblings farmed the land when they were not in school or studying.

On two occasions in 2008 members of the "Cuaches"¹ drug cartel approached the respondent and his father and threatened to kill them if they did not use their land to cultivate marijuana for the cartel. Approximately a month after the respondent's second encounter with the cartel, his father was fatally shot.

According to the respondent, the cartel also threatened his godfather and ordered him to cultivate drugs on his land. His godfather was killed in 2007. In 2008, the cartel shot and killed the godfather's 13-year-old son in front of the child's grandparents. The child's grandparents left the area, and the cartel appropriated his godfather's land. On September 1, 2008, the respondent left Guatemala and traveled to Mexico. He entered the United States on March 2, 2009. After the respondent entered this country, his family abandoned their land in Guatemala. His mother and sister have relocated to another part of Guatemala where they live without incident.

On remand, the respondent proposed the following social groups: (1) landowners, (2) landowners who resist drug cartels, and (3) members of the respondent's family.² The Immigration Judge concluded that neithergroup establishes the respondent's eligibility for asylum or withholding of removal under the Act. The Immigration Judge also concluded that the respondent was ineligible for protection under the Convention Against Torture. On appeal, the respondent challenges the Immigration Judge's conclusions in this regard and argues that his applications should be granted. For the reasons set forth below, we will affirm the Immigration Judge's decision.

II. ANALYSIS

An applicant seeking asylum or withholding of removal based on his or her membership in a particular social group 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." Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014); see also Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016).³

A. Asylum

1. Landownership as a Social Group

In Matter of Acosta, we indicated that "land ownership" may qualify as "a common, immutable characteristic" that defines a particular social group. 19 I&N Dec. 211, 233 (BIA 1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987). However, to establish that landownership is an immutable characteristic, an applicant must demonstratethat his or her ownership of land is "beyond the [applicant's] power . . . to change or is so fundamental to [his or her] identity or conscience that it ought not be required to be changed." Id. We further explained that harm against a landowner will only qualify as "persecution" for purposes of asylum if it is shown that landownership was a "characteristic [that the] persecutor sought to overcome." Id. at 222.

Moreover, even if a group of landowners shares an immutable characteristic, that group must also be defined with sufficient particularity and be perceived as distinct by the society in question. See Reyes, 842 F.3d at 1131. In other words, even in cases where the ownership of land renders a group immutable, its ultimate validity will depend on whether the particular facts, country and societal conditions, and individual circumstances establish "whether the group is discrete or amorphous, and whether the society in question considers 'landowners' as a significantly distinct group within the society." Matter of M-E-V-G-, 26 I&N Dec. at 241.

We have previously explained that

in an underdeveloped, oligarchical society, "landowners" may be a sufficiently discrete class to meet the criterion of particularity, and the society may view landowners as a discrete group, sufficient to meet the social distinction test. However, such a group would likely be far too amorphous to meet the particularity requirement in Canada, and Canadian society may not view landowners as sufficiently distinct from the rest of society to satisfy the social distinction test.

Id.

Thus, where the particular facts of a case indicate that landownership is linked with another protected ground—for example, political opinion, by exclusively limiting participation in governance and other political activities to landowners—a group of landowners is more likely to have definable boundaries and be viewed by the society in question as a distinct class of persons. See id.; cf. Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (recognizing "that persecutors are more likely to identify individual family members as part of a particular social group when familial ties are 'linked to race, religion, or political affiliation'" (citation omitted)). The same is true for a group of landowners who pose a threat to a cartel and its interests, given the group's social prominence or significance, political or otherwise.

Accordingly, an alien's status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal. To establish a particular social group based on landownership, an alien must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and thatthe group is defined with particularity and is perceived to be socially distinct in the society in question.⁴

We agree with the Immigration Judge that the respondent has not demonstrated that his proposed groups—landowners and landowners who resist drug cartels in Guatemala—are valid.⁵ See Matter of W-G-R-, 26 I&N Dec. 208, 210 (BIA 2014) (stating that "the ultimate determination whether a particular social group has been established is a question of law," which is reviewed under a de novo standard), vacated in part and remanded on other grounds, Reyes, 842 F.3d 1125; see also Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir. 2013) (per curiam). Neither group is defined by an immutable characteristic that is "beyond the [respondent's] power . . . to change or is . . . fundamental to [his] identity." Matter of Acosta, 19 I&N Dec. at 233. The respondent does not meaningfully dispute the Immigration Judge's finding that his ownership of his family's land could cease through "giving up" or selling that property. As noted, moreover, the respondent's family abandoned their land after the respondent left Guatemala.

The respondent's proposed social groups are also amorphous and lack particularity because they can encompass landowners of varying backgrounds, circumstances, and motivations. Arguably, his proposed groups could encompass anyone who owns any amount or type of land in Guatemala. In fact, the respondent conceded that the cartel wanted his family's land because it was conducive to growing drugs, and there is no indication that their land was unique in this respect. See Matter of A-B-, 27 I&N Dec. 316, 335 (A.G. 2018) ("Social groups defined by their vulnerability to private criminal...