Paloka v. Holder

• Decision Date: 07 August 2014
• Docket Number: Docket No. 12–4987–ag.
• Parties: Silvana PALOKA, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

762 F.3d 191

Silvana PALOKA, Petitioner,

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

Docket No. 12–4987–ag.

United States Court of Appeals,Second Circuit.

Heard: May 21, 2014.

Decided: Aug. 7, 2014.

Kai W. De Graaf, New York, N.Y., for Petitioner.

Margot L. Carter, Trial Attorney, Office of Immigration Litigation, Washington, D.C., (Stuart F. Delery, Assistant Attorney General for the Civil Division of the U.S. Department of Justice, Leslie McKay, Assistant Director of the Office of Immigration Litigation, Washington, D.C., on the brief), for Respondent.

Before: NEWMAN, WALKER, and CABRANES, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

The primary issue on this appeal is whether “young Albanian women” or “young Albanian women between the ages of 15 and 25” qualify as a “particular social group” for asylum purposes. 8 U.S.C. § 1101(a)(42)(A). Petitioner Silvana Paloka appeals from the December 4, 2012, order of the Board of Immigration Appeals (“BIA”) dismissing her application for asylum and other relief. See In re Silvana Paloka, No. A093–341–960 (BIA Dec. 4, 2012).

In view of the BIA's two recent precedential decisions clarifying its interpretation of “particular social group” for asylum purposes, we will remand so that the BIA may determine, in the first instance, whether Paloka's proposed social groups qualify for asylum purposes.

Background

After arriving in the United States, Paloka, a native of Albania, timely applied for asylum. She was then nineteen years old and unmarried. The Immigration Judge (“IJ”) deemed Paloka credible; therefore, we use her testimony and the IJ's factual findings to set forth the facts of her case.

Facts of alleged persecution. Paloka's parents lived in Berdice, Albania, in a section of town that had previously been sectored off as a camp for those who had spoken out against the communist regime. Her parents and grandparents had been persecuted for their anti-communist stance from the 1960s to the fall of the communist regime in the early 1990s. The family's land was taken and her grandparents were interned in the camp in 1965. Her father was disabled from a beating by government agents in 1985. Paloka was born in the camp in 1989.

When she was eighteen, Paloka got a job as a hairdresser in the nearby town. She walked a considerable distance to get to and from her home. In 2008, on three separate occasions during trips to and from work, Paloka was pressured to become a prostitute. The first occurred in May 2008. Paloka was returning home from work when a man she had never seen before approached her. He said he wanted to meet her parents, marry her, and take her to Greece. Paloka said she was not interested and began to walk home, but the man said she would see him again. He got into a police car, and it drove off. Paloka told her employer, Rita Mendoja, about the incident and was allowed to leave work earlier when the streets were less deserted.

In June 2008, a police car stopped beside Paloka while she was walking home. Two men got out of the car, one in a police uniform and the other in civilian clothes. Paloka recognized the man in civilian clothes as the man who had stopped her in May. The man in the police uniform told Paloka that he knew her family was not from the area, her family had been persecuted in the past, her parents were disabled, and her brothers were too young to protect her. He then threatened to kill her and her family if she did not accede to the wishes of the other man. Paloka understood that the men wanted to sell her into prostitution. At that moment, three of Paloka's neighbors happened to pass by and provided her with a ride home.

Two days after the second incident, Paloka met with both a local official and a village leader to inform them of the incident and request protection. Both leaders said that they could not help her.

A third incident occurred in July 2008. Paloka left work late at 8:30 p.m. For this reason, Mendoja accompanied her home. On the road, the women saw a police car stopped on an empty road. The same two men who had threatened Paloka previously stepped out of the car. They grabbed Paloka by her arms and hair and kicked her. Mendoja screamed and tried to fight with them. The men tried to push Paloka into the police car. During the struggle, an armed shepherd came on the scene. The shepherd pointed his rifle at the men and threatened to kill them unless they let Paloka and Mendoja go. The two men got back into the police car and departed. The shepherd accompanied the women to Paloka's home.

Paloka told her parents about the final incident, and they all agreed that she should go live with her aunt and uncle in the main city of Shkoder until she could leave the country. Paloka did so, and left Albania and came to the United States in August 2008.

Administrative proceedings. Before the IJ, Paloka testified that she would be afraid to live anywhere in Albania because the threat of human trafficking for prostitution existed everywhere in the country. The 2008 State Department Trafficking in Persons Report (“Trafficking Report”) states that most Albanian sex trafficking victims are women and girls between the ages of 15 and 25. ¹ The Report also notes that “[t]he Government of Albania does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so.” Trafficking Report 60. Specifically, the Report noted a concern that “public officials ... participated in or facilitated human trafficking.” Id. At Paloka's hearing, the IJ observed that “forced ... prostitution through sex trafficking ... occurs relatively often in Albania[,] which is recognized as one of the countries where this is more common than many other countries.”

To bring her generalized sex trafficking claim within the required category of a “particularized social group” Paloka asserted membership in three groups: “unmarried women,” “young women in Albania,” and “unmarried young women in Albania.” At oral argument, she suggested that her third group could be narrowed by a specific age limitation of 15 to 25 years.

The IJ denied Paloka's application for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ provided two alternative reasons for denying Paloka's claim of membership in a “particular social group.” First, the IJ determined that all of her proposed groups were “too broad.” Second, the IJ decided that Paloka was not targeted “on account of” her membership in a particular social group but instead because she was a “good target for criminal opportunistic behavior.”

The BIA did not reach the question of whether the incidents amounted to persecution. Instead, the BIA stated that the proposed groups were “not defined with sufficient particularity to be cognizable particular social groups.” The BIA also rejected her alternative social group based on her family's political ties because Paloka had not shown that she was targeted on account of her family's political history; instead, the BIA concluded that she “was approached because she was a good target for criminal opportunistic behavior.”

Discussion

I. Standard of Review and Statutory Scheme

Because the BIA did not expressly adopt the IJ's decision, but “its brief opinion closely track[ed] the IJ's reasoning,” we have reviewed the opinions of both the IJ and the BIA “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (internal quotation omitted).We review factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Questions of law, as well as the application of legal principles to undisputed facts, are reviewed de novo. See Guan Shan Liao v. United States, 293 F.3d 61, 66 (2d Cir.2002).

To establish eligibility for asylum or withholding of removal, an applicant must show persecution, or fear of persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. See8 U.S.C. §§ 1101(a)(42); 1231(b)(3). Direct governmental action is not required for a claim of persecution. Private acts can constitute persecution if the government “is unable or unwilling to control it.” Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir.2006); see also Pavlova v. I.N.S., 441 F.3d 82, 85 (2d Cir.2006). To succeed on a particular social group claim, the applicant must establish both that the group itself was cognizable, see Ucelo–Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.2007), and that the alleged persecutors targeted the applicant “on account of” her membership in that group, see8 U.S.C. § 1101(a)(42)(A).

Paloka contends that her membership in a particular social group is the reason she has been persecuted and the reason she fears future persecution. The primary question in this case is whether the social group she has described satisfies the statutory standard of section 101(a)(42)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42)(A). Courts review de novo the legal determination of whether a group constitutes a “particular social group” under the INA. See, e.g., Cece v. Holder, 733 F.3d 662, 668 (7th Cir.2013) (in banc); Ayala v. Holder, 640 F.3d 1095, 1096–97 (9th Cir.2011); Castaneda–Castillo v. Holder, 638 F.3d 354, 363 (1st Cir.2011).

II. BIA's Interpretation of “Particular Social Group”

Congress did not define “membership in a particular social group” in the INA, as the BIA has recognized, see In re M–E–V–G–, 26 I. & N. Dec. 227, 230 (BIA 2014) (“ M–E–V–G–”). The BIA has interpreted this phrase through a series of precedential opinions. See M–E–V–G–, 26 I. & N. Dec. at 231–33 (collecting cases). We give the BIA interpretations Chevron deference because the statutory phrase is vague. See Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842–43, 104...