Mendez-Barrera v. Holder

• Decision Date: 15 April 2010
• Docket Number: No. 09-1903.,09-1903.
• Citation: 602 F.3d 21
• Parties: Yulma Marili MENDEZ-BARRERA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

602 F.3d 21

Yulma Marili MENDEZ-BARRERA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-1903.

United States Court of Appeals, First Circuit.

Submitted January 25, 2010.

Decided April 15, 2010.

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Gerald D. Wall and Greater Boston Legal Services on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Jamie M. Dowd, Senior Litigation Counsel, and Andrew N. O'Malley, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before LIPEZ, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Yulma Marili Mendez-Barrera, is a native and citizen of El Salvador. She seeks judicial review of an order of the Board of Immigration Appeals (BIA) denying her application for asylum, withholding of removal, and protection under Article III of the United Nations Convention Against Torture (CAT). After careful consideration we deny this petition.

The background facts are easily stated. The petitioner entered the United States illegally, through Mexico, on April 21, 2006. Approximately two weeks later, the Department of Homeland Security initiated removal proceedings against her.

Just before the expiration of the one-year filing deadline, see 8 U.S.C. § 1158(a)(2)(B), the petitioner sought asylum. Pertinently, the petitioner claimed that, if repatriated, she would face persecution by gang members in El Salvador on account of her religion, political opinion, and membership in a particular social group.

At a hearing before an immigration judge (IJ) on June 1, 2007, the petitioner conceded removability but pressed for asylum, withholding of removal, and protection under the CAT. She testified that, while in El Salvador, she engaged in many community activities, participated in athletics at her school, regularly attended a local church, and participated in political affairs. She claimed that her diverse community involvement made her a target for gang members. Beginning in 2003, gang members would stop her on the street and endeavor to recruit her, threatening sexual abuse if she did not acquiesce.

According to the petitioner, this was only the tip of the iceberg. She described two specific occasions on which gang members attacked her brother, ostensibly to pressure her to join their ranks. She also averred that gang members threw rocks at her family's home, causing the roof to buckle. By 2006, she no longer felt safe participating in her myriad community pursuits and, thus, fled from El Salvador.

At the conclusion of the hearing, the IJ found the petitioner credible, but denied relief due to a lack of corroborating evidence. In this regard, the only other evidence presented at the hearing, apart from the petitioner's testimony,¹ went to generalized accounts of country conditions in El Salvador (including accounts of gang violence).

The petitioner appealed. The BIA rejected her appeal, reasoning that, even if the IJ had overstated the need for corroboration, the petitioner still had not carried her burden of showing either past persecution or a well-founded fear of future persecution on account of a protected ground. In so holding, the BIA singled out the petitioner's claim that she was a member of a social group of "young women recruited by gang members who resist such recruitment." In the BIA's view, that claim failed because, in the asylum context, social group membership requires that the group have particular and well-defined boundaries and possess a recognized level of visibility. This timely petition for judicial review followed.

Although the BIA upheld the IJ's decision, it did so on different reasoning. Thus, we review the BIA's order directly and singularly. See Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir.2008) (explaining that when "the BIA has conducted an independent evaluation of the record and rested its affirmance of the IJ's decision on a self-generated rationale," then "judicial review normally focuses on the decision of the BIA").²

Our review proceeds pursuant to the substantial evidence standard. In accordance with the somewhat tautological formulation of that standard, we must respect the BIA's findings as long as they are supported by substantial evidence in the record as a whole. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.2007). This means, in effect, that the BIA's findings of fact will be upheld unless the record is such as would compel a reasonable factfinder to reach a contrary determination. Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We review questions of law de novo, ceding some deference to the BIA's interpretation of the statutes and regulations that come within its purview. See Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st Cir.2004).

At the threshold, we must confront the petitioner's two-pronged argument that the BIA failed to conduct an individualized assessment of her claims and did not sufficiently articulate the basis for its decision. For ease in exposition, we bundle these assertions together.

There is no requirement that the BIA wax longiloquent in carrying out its adjudicative role. A brief decision that goes directly to the point will often suffice. That is not to say that the BIA has carte blanche. We expect the BIA "to make findings on all grounds that are necessary" to support its decision. Rotinsulu v. Mukasey, 515 F.3d 68, 73 (1st Cir.2008). Nevertheless, "those findings can be either explicit or implicit." Id. (citing Un v. Gonzales, 415 F.3d 205, 209 (1st Cir.2005)). As long as the "essence of the BIA's decisional calculus" is discernible, the BIA need not "illuminate the path of its reasoning. . . at great length or in exquisite detail." Lopez-Perez v. Holder, 587 F.3d 456, 460 (1st Cir.2009).

The BIA's decision in this case satisfies these criteria. The BIA did not mince words but, rather, bluntly articulated an individualized basis for its rejection of the petitioner's claims. It explained that the petitioner's testimony, though credible, was not enough to show that her fear of violence at the hands of El Salvadoran gangs amounts to fear of persecution on account of a statutorily protected ground. It proceeded to find that any harm the petitioner experienced in the past was not on account of a statutorily protected ground. And with respect to the social group claim, the BIA explained that the group proposed by the petitioner did not measure up because it lacked "particular and well-defined boundaries" and a "recognized level of social visibility." These and other statements adequately reveal the basis upon which the BIA denied relief. No more was exigible.

Moving from procedure to substance, we reach the petitioner's asylum claim. To be entitled to asylum, an alien must demonstrate that she is unable or unwilling to return to her homeland "because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). In order to prove past persecution, an alien must show serious harm, Banturino v. Holder, 576 F.3d 10, 14 (1st Cir.2009); a showing of persecution requires "more than mere discomfiture, unpleasantness, harassment, or unfair treatment." Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005). If past persecution is established, that showing creates a rebuttable presumption that a well-founded fear of future persecution exists. Id. Absent evidence of past persecution, an alien can establish a well-founded fear of future persecution by showing that (a) the alien genuinely fears such persecution and (b) an objectively reasonable person in the alien's circumstances would fear such persecution. Lopez Perez, 587 F.3d at 461-62.

The petitioner has cited a salmagundi of statutorily protected grounds in connection with her asylum claim, including religion and political opinion. Her principal argument, however, focuses on social group membership. We grapple with that argument first, mindful of the petitioner's claim that the relevant social group comprises "young El Salvadoran women recruited by gang members who resist such recruitment."

To prove persecution on account of membership in a particular social group, an alien must show at a bare minimum that she is a member of a legally cognizable social group. See Faye v. Holder, 580 F.3d 37, 41 (1st Cir.2009). Although the term "social group" is not defined by statute, the BIA has described a social group as a group of persons sharing a common, immutable characteristic that makes the group socially visible and sufficiently particular. See id.; see also In re C-A-, 23 I. & N. Dec. 951, 959-60 (BIA 2006). We have upheld this delineation of the term's scope as reasonable. See Faye, 580 F.3d at 41; Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir.2009); see also 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) (explaining that when a term in a statute is ambiguous, courts should give substantial deference to a reasonable construction of that term by an agency charged with administering the statute).

In contesting the appropriateness of this definition, the petitioner asserts that we should ignore it because the BIA changed the rules in the middle of the game; that is, the BIA departed from precedent, gutted its immutable characteristic test, and substituted a new (and unprecedented) social visibility test. This assertion contains more cry than wool.

The petitioner's underlying premise is sound. An administrative agency must respect its own precedent, and cannot change it arbitrarily and without explanation, from case to case. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981, 125...