Matter of E-a-G-
| Decision Date | 30 July 2008 |
| Docket Number | Interim Decision No. 3618. |
| Citation | 24 I&N Dec. 591 |
| Parties | Matter of E-A-G-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated May 3, 2005, an Immigration Judge found the respondent removable but granted his application for asylum pursuant to section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (2000 & Supp. V 2005). The Department of Homeland Security ("DHS") has filed a timely appeal contesting the Immigration Judge's grant of asylum. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings and for the entry of a new decision.
The respondent, a native and citizen of Honduras, conceded removability in proceedings before the Immigration Judge but requested relief based on his claim of persecution. At his hearing, the respondent testified that his eldest brother was a member of the Mara Salvatrucha ("MS") gang in Honduras for 3 months and was shot and killed in 2001 at the age of 16 by members of a rival gang, "The 18," during a "gang war." He indicated that the person primarily responsible for his brother's death was a person nicknamed "The Spy," and that he believed that his mother had filed a police report about the killing. He stated that "The Spy" was subsequently arrested by the police, but that he was unsure whether it was because of his brother's death or other reasons, as "The Spy" had committed many other crimes. He indicated that he did not know whether anyone in his family had ever followed up on the crime report filed after his brother's death.
Similarly, the respondent testified that a second brother subsequently joined the MS at age 18 and was killed by other members of the MS in 2003 at age 19, after only 5 or 6 months of membership. According to the respondent, his second brother was killed because he became a Christian and left the MS, which the gang would not allow. He indicated that his grandparents filed a police report, and that he believed that this case was still open, with the Honduran police still investigating the death. The respondent testified that he was approached by his cousin, an MS member, on several occasions and asked if he wanted to join the MS, but the respondent said no each time, to which his cousin replied, "No problem."
The respondent indicated that following the deaths of his brothers, persons he believed to be gang members issued written and oral threats to his mother on three occasions telling her to take the family and leave their home. However, he testified that he did not know why they wanted the family to leave. The respondent stated that following a threat in 2004, all of his family except him left for another town, but he remained behind in school. The respondent did not claim to have experienced any harm or threats of harm while he remained behind, and he noted that his mother and the rest of the family moved back to their hometown a few months later, as they discovered that there was a lot of gang violence in the other town as well. He indicated that the last threat his mother received was in 2005, in the form of a note telling her to vacate her home within 3 months. However, he testified that she did not leave as instructed, and that nothing has since happened to her or any other family members as a result.
The Immigration Judge found the respondent to be credible. She determined that while the respondent had not experienced any past persecution in Honduras, he had met his burden of showing that he has a well-founded fear of persecution on account of a protected ground under the Act. The Immigration Judge specifically found that the respondent would be targeted for persecution by gang members because of his "youth and affiliation or perceived affiliation with gangs," as well as his imputed political opinion. The Immigration Judge indicated that because she was granting asylum, she did not find it necessary to reach the issues of the respondent's eligibility for withholding of removal pursuant to section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (2000), and for protection under the United Nations 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"), pursuant to 8 C.F.R. § 1208.16(c)(2) (2005).
The Immigration Judge found, and we agree, that the respondent did not experience any past persecution in Honduras. Neither party argues otherwise on appeal. However, we disagree with the Immigration Judge's determination that the respondent has sustained his burden of showing that he has a well-founded fear of persecution in Honduras on account of a protected ground under the Act. Sections 101(a)(42)(A), 208(b)(1)(B) of the Act, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B) (2006).
The Immigration Judge found that the respondent was a member of the particular social groups of "young persons who are perceived to be affiliated with gangs (as perceived by the government and/or the general public)" and "persons resistant to gang membership ( to join when recruited)." To establish that he is a member of a "particular social group," an applicant must show that he is a member of a group of persons sharing a common characteristic that they either cannot change or should not be required to change because it is "fundamental to their individual identities or consciences." Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352 (5th Cir. 2002) ().
In a decision published as a companion to this case, we set forth in some detail the history of the evolving case law at both the Board and the various Federal circuit courts of appeals concerning particular social groups, and the reader is referred to that decision for a more in-depth historical overview. See Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) (). In recent years, we have issued a line of cases reaffirming the particular social group formula set forth in Matter of Acosta, supra, and providing further clarification regarding its proper application. See Matter of A-T-, 24 I&N Dec. 296 (BIA 2007) (); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74-75 (BIA 2007) (); Matter of C-A-, 23 I&N Dec. 951, 959-61 (BIA 2006) (), aff'd, Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190 (11th Cir. 2006), cert. denied sub nom. Castillo-Arias v. Gonzales, 127 S. Ct. 977 (2007). In each of these cases, we emphasized that the purported group's social visibility—i.e., the extent to which members of a society perceive those with the characteristic in question as members of a social group—is of particular importance in determining whether an alien is a member of a claimed particular social group. See, e.g., Matter of C-A-, supra ().
In Matter of A-T-, supra, at 303, we expressed skepticism that young Bambara women who oppose arranged marriage "have the kind of social visibility that would make them readily identifiable to those who would be inclined to persecute them," and thus declined to find such a particular social group. Similarly, in Matter of A-M-E- & J-G-U-, supra, at 74-75, we found that the respondents had failed to establish that their status as "affluent Guatemalans" gave them sufficient social visibility to be perceived as a group by society. Finally, in Matter of C-A-, supra, at 960, we indicated that government informants were insufficiently recognizable as a group to others, noting that the very nature of the conduct of confidential informants is such that it is generally out of the public view.
Applying these standards, we find that the particular social group identified by the Immigration Judge as "persons resistant to gang membership" lacks the social visibility that would allow others to identify its members as part of such a group. Persons who resist joining gangs have not been shown to be part of a socially visible group within...
To continue reading
Request your trial