Perdomo v. Eric H. Holder Jr

• Decision Date: 12 July 2010
• Docket Number: No. 06-71652.,06-71652.
• Citation: 611 F.3d 662
• Parties: Lesly Yajayra PERDOMO, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

611 F.3d 662

Lesly Yajayra PERDOMO, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06-71652.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 16, 2009.

Filed July 12, 2010.

Alan Hutchison, Reno, NV, for petitioner Lesly Yajayra Perdomo.

Peter D. Keisler, Linda S. Wendtland, John C. Cunningham, and M. Jocelyn Lopez Wright, Washington, D.C., for respondent Eric H. Holder Jr.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-845-685.

Before DOROTHY W. NELSON, WILLIAM A. FLETCHER, and RICHARD A. PAEZ, Circuit Judges.

PAEZ, Circuit Judge:

Lesly Yajayra Perdomo (“Perdomo”), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' (“BIA”) affirmance of the immigration judge's (“IJ”) order denying asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). Perdomo sought asylum based on her fear of persecution as a young woman in Guatemala. Specifically, Perdomo argued that women were murdered at a high rate with impunity. The IJ denied the application because she found that young women in Guatemala were not a cognizable social group. The BIA affirmed, finding that a social group consisting of “all women in Guatemala” is over-broad and “a mere demographic division of the population rather than a particular social group.”

Because the BIA's decision is inconsistent with its own precedent and this court's case law, we grant the petition and remand for further proceedings.

I. Factual and Procedural Background

Lesly Yajayra Perdomo is a citizen and native of Guatemala. She left Guatemala at age fifteen to join her mother in the United States in April 1991. ¹ She entered the United States without inspection or parole.

Perdomo has lived continuously in the United States since her entry in 1991, and she is fluent in English and Spanish. She completed high school in Reno, Nevada, and is currently employed as a Medicaid account executive at a medical facility in Reno. Perdomo is single, and she has no children. Both of Perdomo's parents are deceased, and she no longer has any close relatives in Guatemala; she currently lives with her stepfather and sister in Reno. Perdomo is actively involved in her Pentecostal church.

On April 21, 2003, the Immigration and Naturalization Service (“INS”) ² issued Perdomo a Notice to Appear, charging her as removable under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), for having unlawfully entered the United States. Perdomo conceded removability at her master calendar hearing on January 28, 2004, and requested asylum, withholding of removal, and relief under CAT.

She requested asylum because she feared persecution as a member of a particular social group consisting of women between the ages of fourteen and forty. Perdomo testified that her fear was based on the high incidence of murder of women in Guatemala, and her own status as a Guatemalan woman. She provided the IJ with several reports by the Guatemala Human Rights Commission, which is based in the United States, documenting the torture and killing of women, the brutality of the killings, the non-responsiveness of the Guatemalan government to such atrocities, the countrywide prevalence of the killings, and the lack of explanation for the killings. Perdomo did not assert that she was the victim of past persecution; rather, she expressed a fear of future persecution if she were returned to Guatemala. Perdomo also testified that she would be targeted because she would not be accepted as a native citizen in Guatemala, but would be considered an American with financial resources due to the number of years that she has lived in the United States. She further testified that she may be targeted because of her active involvement in the Pentecostal church as well as her lack of family and other personal contacts in Guatemala. Perdomo also testified that she would not be able to obtain employment in Guatemala because the secretarial positions listed in Guatemalan newspapers only accept female applicants between the ages of eighteen and twenty-five, and job applications must be submitted with photographs.

Although the IJ found Perdomo's testimony to be credible and truthful, she denied the applications for asylum, withholding of removal, and relief under CAT. The IJ noted that she was “sympathetic to the plight of the respondent,” but declined to make the “finding that women between the ages of fourteen and forty who are Guatemalan and live in the United States form a particular social group which would entitle [Perdomo] to relief.”

On appeal, the BIA agreed with the IJ's determination that Perdomo failed to establish a well-founded fear of future persecution in Guatemala on account of her membership in a particular social group. The BIA considered the group of “women between the ages of fourteen and forty who are Guatemalan and live in the United States” to be too broad to qualify as a protected social group. The BIA also rejected Perdomo's revised definition of the protected social group-“all women in Guatemala.” The BIA concluded that this social group was even broader, and was a demographic rather than a cognizable social group under the INA. The BIA also upheld the IJ's denial of withholding of removal and relief under CAT, and granted Perdomo sixty days for voluntary departure.

II. Jurisdiction

Our jurisdiction to review a final order of removal is governed by 8 U.S.C. § 1252. We have jurisdiction to review the denial of an asylum application when a petitioner raises a question of law, including mixed questions of law and fact.³ Morales v. Gonzales, 478 F.3d 972, 978-80 (9th Cir.2007).

III. Standard of Review

Whether a group constitutes a “particular social group” under the INA is a question of law we review de novo. Hernandez-Montiel v. INS, 225 F.3d 1084, 1091(9th Cir.2000).

Where the BIA conducts its own review of the evidence and law rather than simply adopting the immigration judge's decision, as here, our review is limited to the BIA's decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006).

IV. Discussion

A. General Framework

The Attorney General may, in his discretion, grant asylum to an alien who qualifies as a refugee within the meaning of INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). INA § 208(a)-(b)(1)(A), 8 U.S.C. § 1158(a)-(b)(1)(A). An alien establishes refugee status if she is unable or unwilling to return to her country of nationality either because of past persecution or a well-founded fear of future persecution on account of her race, religion, nationality, political opinion or membership in a particular social group. INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A); Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir.2005). The applicant bears the burden of proving her eligibility for refugee status. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995).

B. Women as a Particular Social Group

The INA does not provide a definition for the term “particular social group.” Hernandez-Montiel, 225 F.3d at 1091. The BIA has interpreted the term to mean a group with members who “share a common, immutable characteristic” that “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); In re C-A-, 23 I. & N. Dec. 951, 955-56 (BIA 2006) (quoting the Acosta formulation and affirming continued adherence to it). The BIA has explained that “[t]he shared characteristic might be an innate one such as sex, color, or kinship ties,” which would make the fact of membership “something comparable to the other four grounds of persecution under the Act,⁴ namely, something that is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed.” In re C-A-, 23 I. & N. Dec. at 955 (quoting Acosta, 19 I. & N. Dec. at 233-34). The BIA also has clarified that a group must have “social visibility” and adequate “particularity” to constitute a protected social group. In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 75-76 (BIA 2007).

The BIA, however, does not “generally require a ‘voluntary associational relationship,’ ‘cohesiveness,’ or strict ‘homogeneity among group members.’ ” Id. at 74. The BIA has not yet specifically addressed in a precedential decision whether gender by itself could form the basis of a particular social group. It has, however, recognized as a “particular social group” women who belong to a particular tribe and who oppose female genital mutilation because that group is defined by characteristics that cannot be changed or should not be changed. In re Fauziya Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996). Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.

Our case law examining asylum claims based on membership in a particular social group continues to evolve. Initially, we required a “voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.” Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986). We reasoned that the term “particular social group” was intended to apply to “cohesive, homogeneous group[s]” in order to avoid “extending refugee status to every alien displaced by general conditions of unrest or violence in his or her home country.” Id. at 1577.

More recently, recognizing that we were the only circuit to require a “voluntary associational relationship,” and noting that members of some social groups do not associate by choice, we developed a two-pronged approach to recognizing a protected social group. Hernandez-Montiel, 225 F.3d at 1092. In Hern...