Mayorga-Vidal v. Holder

• Decision Date: 16 March 2012
• Docket Number: No. 09–1208.,09–1208.
• Parties: Henry Edgardo MAYORGA–VIDAL, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

675 F.3d 9

Henry Edgardo MAYORGA–VIDAL, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09–1208.

United States Court of Appeals, First Circuit.

Heard Feb. 2, 2010.Decided March 16, 2012.

Ilana Greenstein, with whom Maureen O' Sullivan, Jeanette Kain and Kaplan, O'Sullivan & Friedman, LLP were on brief, for petitioner.

Corey L. Farrell, Attorney, Office of Immigration Litigation, United States Department of Justice, Civil Division, with whom Tony West, Assistant Attorney General, Civil Division and Greg D. Mack, Senior Litigation Counsel, were on brief, for respondent.

Before LIPEZ, Circuit Judge, SOUTER,^* Associate Justice, and HOWARD, Circuit Judge.HOWARD, Circuit Judge.

In 2002, petitioner Henry Edgardo Mayorga–Vidal, a native and citizen of El Salvador, attempted to enter the United States without authorization. He was detained and placed in removal proceedings, where he initially denied that he was removable. He also sought asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). In support of his asylum and withholding requests, Mayorga–Vidal claimed that he would suffer future persecution if returned to his homeland, based on two statutorily-protected grounds. See 8 U.S.C. § 1101(a)(42)(A). The first was his purported membership in a “particular social group,” defined by him as young Salvadoran men who have resisted gang recruitment and whose parents are unavailable to protect them. See id. The second ground was his alleged anti-gang, pro-establishment “political opinion.” See id. He sought CAT relief on the ground that, if repatriated, he would face gang violence for which the government would be responsible. All three requests for relief failed before both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA), ¹ and Mayorga–Vidal now petitions for judicial review. After a careful review of the final agency orders and the underlying record, we deny the petition.

I. Background

We summarize the facts as provided in the agency decisions and as otherwise undisputed by the parties. Mayorga–Vidal was born in El Salvador in 1984. By 1998, his parents had left the country for the United States, leaving him in the care of his aunt and other family. Many parents made a similar choice in the wake of the country's civil war, and El Salvador later experienced wide-spread gang problems.

Mayorga–Vidal's family life in his aunt's household was less than ideal, and, apparently, none of the extended family members took an interest in caring for him. Around the time that Mayorga–Vidal was 14 or 15 years old, gang members of the “Mara 18” approached him in the street and attempted to recruit him, but he declined to join their ranks. Upon the arrival of some of his friends, the gang fled. This encounter would not be the last. Different members of the Mara 18 approached him on several more occasions, demanding that he join the gang, and when he refused, they would tell him to be “very careful.” During one encounter, the gang members threatened to beat him, and, still, he declined gang membership.

At one point, a neighbor recommended to Mayorga–Vidal that he join a church group as an alternative to membership in a street gang and as a means of keeping himself safe from gang intimidation. He did so and participated in church activities for about a year and a half. During this time, his contact with gang members was minimal because he avoided situations that would force an encounter. Some contact occurred, however, when Mayorga–Vidal visited some of his cousins who were active gang members.

In 2001, the petitioner experienced his final confrontation with the Mara 18, during which gang members told him that if they ever found him alone they would kill him. The gang's threats resonated with Mayorga–Vidal because he and his family believed that the Mara 18 had killed his cousin who had been a member of a rival gang. He did not report his encounters to the police out of fear of gang retaliation. Five months after his last gang encounter, Mayorga–Vidal left for the United States in February 2002. He was 17 years old at the time.

At his removal hearing, Mayorga–Vidal gave his personal account, and he presented expert testimony and documentary evidence about country conditions in El Salvador. The evidence showed that gang violence was a pervasive problem in El Salvador, touching all segments of the population. Reports also indicated that the government had made efforts to combat the gang stronghold, including the creation of an anti-gang task force which deployed hundreds of military personnel to high crime areas.

Despite such efforts, gang violence continued to be a serious, wide-spread problem in El Salvador. Two expert witnesses testified that the Salvadoran police were ineffectual, with one stating that some police officers were actively involved in gang activity. One also testified that Mayorga–Vidal's status as a youth without family support would make him a prime target for gang recruitment, and that if he refused to join a gang he could be threatened, intimidated, beaten, or killed.

Ultimately, the IJ found Mayorga–Vidal removable, denied his requests for relief, and ordered him removed to El Salvador (2004 IJ decision). This decision was summarily affirmed by the BIA (2005 BIA decision), and Mayorga–Vidal petitioned this court for review. Before appellate briefing was complete, however, on the government's unopposed motion, the matter was remanded for the agency to consider the claim of “political opinion” persecution, an issue left undecided in the 2004 IJ decision. The IJ accepted all the evidence from the first hearing, as well as additional testimony from Mayorga–Vidal. The petitioner conceded removability before the IJ, and after denying his claim of “political opinion” persecution, the IJ again ordered Mayorga–Vidal removed (2007 IJ decision). In an order that included brief written analysis, the BIA affirmed the second IJ's decision and also reaffirmed its previous dismissal of Mayorga–Vidal's claim of “social group” persecution (2009 BIA decision). This timely petition followed.

II. Discussion

We review the agency's findings of fact under a deferential, “substantial evidence” standard, and we give respect to its findings as long as they are supported by the record on the whole. Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.2009); Touch v. Holder, 568 F.3d 32, 38 (1st Cir.2009); see 8 U.S.C. § 1252(b)(4)(B). De novo review is accorded to legal conclusions, with some deference accorded the agency's statutory interpretation in line with principles of administrative law. Scatambuli, 558 F.3d at 58; see INS v. Aguirre–Aguirre, 526 U.S. 415, 424–25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When a statute is silent or ambiguous, “we uphold the implementing agency's statutory interpretation, provided it is ‘reasonable’ and consistent with the statute.” Scatambuli, 558 F.3d at 58.

The procedural path of this case results in the following review of the agency orders. We review the 2009 BIA decision in tandem with the 2004 IJ decision for the “particular social group” claim of future persecution,² and the 2009 BIA decision together with the 2007 IJ decision for the “political opinion” claim of future persecution. Our review of the CAT claim rests on the 2004 IJ decision as summarily affirmed by the 2005 BIA decision. See, e.g., Villa–Londono v. Holder, 600 F.3d 21, 23 (1st Cir.2010) (stating that where the BIA adopts portions of the IJ's decision while adding its own comments, appellate court reviews both the IJ's opinion and the BIA's decision).

Asylum and Withholding of Removal

To be eligible for asylum, an alien must establish that he has a well-founded fear of future persecution if repatriated (a showing of past persecution creates a rebuttable presumption of a well-founded fear), on account of a statutorily-protected ground: “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Mendez–Barrera v. Holder, 602 F.3d 21, 25 (1st Cir.2010) (providing legal framework regarding past persecution, and explaining that a well-founded fear of future persecution is one that is both subjectively genuine and objectively reasonable). An alien seeking withholding of removal must meet a higher burden, proving he will more likely than not suffer future persecution on account of one of the enumerated protected grounds. See Faye v. Holder, 580 F.3d 37, 41 (1st Cir.2009); 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b)(2); see also INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

In his brief, the petitioner characterizes his future persecution claim as follows: “[Mayorga–Vidal] does not claim that being targeted for recruitment efforts constitutes persecution, but that violent retribution for refusing to comply with those efforts does.” Contending that he will be “branded an enemy,” the petitioner argues that: “Insofar as his refusal to join constitutes an expression of an anti-gang political opinion, the Mara 18's retribution against him would clearly be political in nature. Insofar as his vulnerability to targeting, recruitment and attack is exacerbated by his status as a young man with no family to protect him, the retribution would be on account of his membership in a particular social group as well.”

In its 2009 decision, the BIA held that Mayorga–Vidal had not established past persecution, and the petitioner does not challenge that conclusion. The Board also affirmed the denial of both the asylum and withholding of removal requests on the basis that Mayorga–Vidal had not established that any potential future persecution would be on account of his “proposed membership in a particular social group of those opposed to...