Perez-Trujillo v. Garland

• Decision Date: 28 June 2021
• Docket Number: No. 11-1481, No. 17-1586,11-1481
• Citation: 3 F.4th 10
• Parties: Nestor Aramiz PEREZ-TRUJILLO, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. Nestor Aramiz Perez-Trujillo, Petitioner, v. Merrick B. Garland, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

3 F.4th 10

Nestor Aramiz PEREZ-TRUJILLO, Petitioner,

v.Merrick B. GARLAND,^* United States Attorney General, Respondent.

Nestor Aramiz Perez-Trujillo, Petitioner,

v.Merrick B. Garland,^** United States Attorney General, Respondent.

No. 11-1481

No. 17-1586

United States Court of Appeals, First Circuit.

June 28, 2021

Gregory Romanovsky and SangYeob Kim, with whom Gilles Bissonnette, Romanovsky Law Offices, and American Civil Liberties Union of New Hampshire were on brief, for petitioner.

Jonathan Robbins, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Nancy Kelly and John Willshire-Carrera on brief for Greater Boston Legal Services, amicus curiae.

Deirdre M. Giblin on brief for Massachusetts Law Reform Institute, amicus curiae.

Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

BARRON, Circuit Judge.

At issue are Nestor Perez-Trujillo's petitions for review of two decisions by the Board of Immigration Appeals ("BIA"): its 2011 ruling affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"); and its 2017 ruling reversing the grant of his application for adjustment of status. We deny his 2011 petition and grant his 2017 petition.

I.

Perez-Trujillo is a native of El Salvador who came to the United States on May 17, 2007, when he was thirteen years old. He was apprehended close to the U.S. border by immigration authorities and, on May 19, 2007, was issued a Notice to Appear for removal proceedings.

Perez-Trujillo timely filed on May 6 of the following year an application for asylum, 8 U.S.C. § 1158,¹ and requested withholding of removal, id. § 1231(b)(3),² and relief from removal under the CAT, as implemented by 8 C.F.R. § 1208.16 - .18. Perez-Trujillo indicated in doing so that he sought asylum and withholding of removal on the grounds of "political opinion" and "membership in a particular social group." 8 U.S.C. § 1101(a)(42)(A) ; id. § 1231(b)(3)(A).

Testifying at his removal proceedings in Boston, Massachusetts, on April 16, 2009, Perez-Trujillo stated, among other things, that he had endured several violent encounters in El Salvador with members of the gang MS-13. He testified that gang members had, through violent beatings, forced him to join their ranks; that, when he resisted their orders, gang members responded with further violence; that gang members came looking for him after they heard he had spoken to the police; and that, as he made plans to leave the country and even after he came to the United States, gang members continued to search for him. He also testified that he feared that he would be killed by members of the gang if he returned to El Salvador. To further support his arguments in support of asylum, withholding of removal, and protection under the CAT, Perez-Trujillo also submitted a number of reports and articles concerning conditions in El Salvador.

The immigration judge ordered Perez-Trujillo's removal after denying his application for asylum as well as his request for withholding of removal and protection under the CAT. Perez-Trujillo appealed that ruling to the BIA, and the BIA upheld the order of removal in April 2011. Perez-Trujillo thereafter filed a petition for review from that decision in this Court. We heard oral argument in September 2012.

While Perez-Trujillo was challenging his removal on the grounds just described, he also filed a petition for a "special immigrant" visa. See 8 U.S.C. §§ 1101(a)(27)(J), 1153(b)(4).³ Such a visa makes one eligible to apply for adjustment of status -- a process through which the Attorney General may make a discretionary determination to adjust a noncitizen's status to that of a lawfully admitted permanent resident. Id. § 1255(a), (h).

Following oral argument in our Court on Perez-Trujillo's 2011 petition and while it was still pending with us, the U.S. Department of Homeland Security ("DHS") granted Perez-Trujillo's application for a special immigrant visa on October 1, 2012. Accordingly, on November 1, 2013, we remanded his 2011 petition to the BIA, while retaining jurisdiction over it, so that Perez-Trujillo could seek adjustment of status or administrative closure.

On March 23, 2016, a new immigration judge granted Perez-Trujillo's application for adjustment of status, finding that, after balancing "all of the negative and positive factors" in his case, "the scale tip[ped] in [his] favor." The government then appealed that ruling to the BIA, which reversed it on May 12, 2017. The BIA concluded that Perez-Trujillo had "not shown sufficient equities to overcome his criminal history." Perez-Trujillo filed a petition for review of the BIA's ruling in our Court on June 6, 2017.

Several years later, on May 6, 2020, new counsel was appointed to represent Perez-Trujillo on a pro bono basis. We consolidated the 2011 and 2017 petitions and ordered supplemental briefing on the issues presented in both. Before us now, then, are both the 2011 petition for review, which concerns the BIA's ruling affirming the denial of Perez-Trujillo's applications for asylum, withholding of removal, and CAT relief; and the 2017 petition for review, which concerns the BIA's reversal of the ruling granting his application for adjustment of status. We address each of these petitions for review in turn.

II.

With respect to Perez-Trujillo's 2011 petition for review, we first consider his challenge to the BIA's affirmance of the immigration judge's denial of his asylum and withholding of removal claims. We then take up his challenge in that petition for review to the BIA's affirmance of the immigration judge's denial of his CAT claim. As we will explain, we find that there is no merit to any of these challenges.

A.

To be eligible for asylum, Perez-Trujillo "must show that [he] is unwilling or unable to return to [his] country because of ‘persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ " Pojoy-De León v. Barr, 984 F.3d 11, 16 (1st Cir. 2020) (quoting Diaz Ortiz v. Barr, 959 F.3d 10, 16 (1st Cir. 2020) ). Perez-Trujillo initially applied for asylum based on both "political opinion" and "membership in a particular social group." See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Before us, however, he pursues the "particular social group" claim only, and so that is the only one that we address. See Kelly v. Riverside Partners, LLC, 964 F.3d 107, 115 (1st Cir. 2020) (concluding that appellant waived a challenge by failing to argue it on appeal).

Perez-Trujillo argues that the BIA's ruling affirming the immigration judge's denial of his application for asylum cannot stand because the BIA both treated him as having sought asylum based on his membership in a "particular social group" defined as "witnesses who openly reported ... gang activity to the police" and then erred in holding that such a group is not a legally cognizable one. In so arguing, Perez-Trujillo contends that it is of no moment that he did not actually assert to the BIA, or the immigration judge, that he was a member of a particular social group so defined. All that matters, he asserts, is that the BIA mistakenly proceeded on a different understanding of the characteristics of the "particular social group" in which he was claiming to have been a member and then wrongly ruled based on that mistaken understanding that such a group is not a "particular social group" at all.

Perez-Trujillo premises this aspect of his challenge on the fact that the BIA stated in its opinion that he "indicated that he believes that he was targeted by the gangs for recruitment because he informed on an MS-13 member," and then pointed out that the immigration judge, "[b]y way of analogy, ... noted that the First Circuit has held that informants to the United States government working against a drug smuggling ring[ ] lacked social visibility." But, we do not read these passages to support his contention that the BIA treated him as having claimed membership in a witnesses-based "particular social group." Right after making that statement, the BIA upheld the immigration judge's finding "that the respondent's social group does not have social visibility, ... is indeterminate, and ... is drawn from the fact that its members have been targeted for persecution" by quoting from the portion of the immigration judge's opinion that clearly addresses only the "particular social group" which Perez-Trujillo concedes is the only one of which he did claim to be a member -- namely, the group consisting of "young Salvadoran male students initiated into gangs against their will who refuse to carry out gang orders and who leave the gang by fleeing the country." And because we conclude that the government is right that the BIA addressed -- and rejected -- Perez-Trujillo's claim of asylum based on his "membership in a particular social group" solely on the understanding that his proposed group was that one and that one alone, we also agree that the government is right that we have no jurisdiction to address whether he might have any ground for seeking asylum based on his membership in any other group, including the one involving witnesses that he contends that the BIA wrongly deemed not to be a legally cognizable one. See Samayoa Cabrera v. Barr, 939 F.3d 379, 383-84 (1st Cir. 2019).

We turn, then, to Perez-Trujillo's separate contention that the BIA erred in rejecting his claim of asylum based on his membership in the group that we have just referenced and in which he did plainly claim membership before both the immigration judge and the BIA: young, male, Salvadoran students who are forcibly recruited into gangs, refuse gang orders,...