Rodas-Orellana v. Holder

• Decision Date: 02 March 2015
• Docket Number: Nos. 14–9516,14–9548.,s. 14–9516
• Citation: 780 F.3d 982
• Parties: Benjamin RODAS–ORELLANA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

780 F.3d 982

Benjamin RODAS–ORELLANA, Petitioner

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

Nos. 14–9516

14–9548.

United States Court of Appeals, Tenth Circuit.

March 2, 2015.

Catharine A. Davies (Richard M. Lynch, with her on the brief), Bull & Davies, P.C., Denver, Colorado, appearing for Petitioner.

Corey L. Farrell, Attorney (Joyce R. Branda, Acting Assistant Attorney General; Anthony W. Norwood, Senior Litigation Counsel; and Wendy Benner–León, Trial Attorney, on the brief), United States Department of Justice, Washington D.C., for Respondent.

Before BRISCOE, MATHESON, and MURPHY.

Opinion

MATHESON, Circuit Judge.

Benjamin Rodas–Orellana entered the United States without inspection to escape gang recruitment in El Salvador. The Department of Homeland Security (“DHS”) initiated removal proceedings. Mr. Rodas–Orellana applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”).¹

The Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) denied his application because he failed to show a well-founded fear of persecution on account of membership in a particular social group. They concluded his proposed social group—Salvadorans who resist gang recruitment² —lacked “social visibility” and thus did not constitute a particular social group. They also concluded he had failed to show he was persecuted because of his membership in the proposed social group.

After the BIA issued its final order of removal in this case, it issued decisions in two other cases that modified the social visibility requirement to be one of “social distinction.” See Matter of M–E–V–G–, 26 I. & N. Dec. 227, 227 (BIA 2014) ; Matter of W–G–R–, 26 I. & N. Dec. 208, 208 (BIA 2014). In light of these decisions, Mr. Rodas–Orellana filed a motion to reconsider (mislabeled as a motion to reopen),³ which the BIA denied.

In his petition for review (“PFR”), Mr. Rodas–Orellana contests both the final order of removal and the denial of his motion to reconsider. Exercising our jurisdiction to review the final order of removal and the denial of a motion to reconsider under 8 U.S.C. § 1252(a)(1), (b)(6), (b)(9), we deny his PFR. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361–62 (10th Cir.2004) ; see also Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (concluding “that other recent changes to the INA did not alter our traditional understanding that the denial of a motion to reconsider or to reopen generally does fall within our jurisdiction over final orders of deportation”).

I. BACKGROUND

A. Legal Background

This case concerns two ways a noncitizen who has entered the United States without inspection can remain: asylum and withholding of removal under the INA.

To qualify for asylum, the applicant must be a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A refugee is unable or unwilling to return to his or her 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.” Id. § 1101(a)(42). These five categories are called “protected grounds.” See Dallakoti v. Holder, 619 F.3d 1264, 1266–67 (10th Cir.2010). An applicant can obtain refugee status: (1) “through evidence of a well-founded fear of future persecution” on account of a protected ground; (2) “through a showing of past persecution” on account of a protected ground, which gives rise to a rebuttable presumption of having a well-founded fear of future persecution on account of a protected ground; or (3) “through a showing of past persecution so severe as to provide a compelling argument against removal, even though there is no danger of future persecution on the basis of a protected ground.” Rivera–Barrientos v. Holder, 666 F.3d 641, 646 (10th Cir.2012).

As for withholding of removal, the INA prohibits removal “if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).

The applicant must establish eligibility for asylum and withholding of removal. Id. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C). The burden of proof for withholding of removal is higher than for asylum. Dallakoti, 619 F.3d at 1267. For asylum, a noncitizen must prove he or she is a refugee, which requires a showing of past persecution or a well-founded fear of persecution on account of a protected ground. Rivera–Barrientos, 666 F.3d at 645. To show a well-founded fear, an applicant must at least show that persecution is a “reasonable possibility.” INS v. Cardoza–Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (quotations omitted). For withholding, an applicant must prove a “clear probability of persecution” on account of a protected ground. Karki v. Holder, 715 F.3d 792, 801 (10th Cir.2013) (quotations omitted). Failure to meet the burden of proof for an asylum claim necessarily forecloses meeting the burden for a withholding claim. Id.

B. Factual & Procedural History

1. Mr. Rodas–Orellana's Application for Asylum and Withholding

Mr. Rodas–Orellana is a citizen of El Salvador. He entered the United States without inspection on or around September 6, 2006, when he was 17 years old. On September 16, 2006, DHS commenced removal proceedings, charging Mr. Rodas–Orellana with removability for being a noncitizen present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).

On August 28, 2007, Mr. Rodas–Orellana appeared before an IJ and conceded the charge of removability. He applied, however, for asylum and withholding of removal, indicating he sought to escape from “extreme poverty and gang violence” in El Salvador. AR at 339.⁴ Mr. Rodas–Orellana specifically contended the Mara Salvatrucha gang (“MS–13”) posed a threat to him because he refused to join. He argued this constituted past persecution or a well-founded fear of persecution on account of membership in a particular social group.⁵

In his application materials and in testimony before the IJ, Mr. Rodas–Orellana described the pressure he faced to join MS–13. When he was 15 years old, MS–13 asked him to join for the first time. MS–13 members told him that if he did not join, he would have to pay a fine. And if he did not have the money, he would have to “pay with [his] life.” Id. at 321. When he was 16 years old, MS–13 members stopped him while he was walking home. They asked him to join the gang. When he refused, they beat him and left him bleeding from his face. In another encounter, gang members again told him to join, but he refused. They said he should think about what he was doing. And in a final encounter, gang members told him that if he joined, they would protect him and give him money. He again refused.

During his testimony before the IJ, Mr. Rodas–Orellana said, “They hit me once but that was it. And they would ask me to join whatever they were doing.” Id. at 114. He explained MS–13 members “asked me to give them money and I didn't want to.”Id. at 115; see also id. at 127 (“Q. Okay. And why did they hit you? A. Because they asked me for money and I didn't have any.”). When asked if he was hurt “very badly,” Mr. Rodas–Orellana responded, “Yes, they ... hit me. I went to the hospital but it wasn't that bad.” Id. at 115.

Mr. Rodas–Orellana stated he was afraid to return to El Salvador because the gangs “think that one come[s] to the United States to make money so that I would have money and they would want to get my money and they would kill me for that.” Id. at 120. When asked where he got this idea, he replied, “Because to many people that has happened, people that come from the United States, they try to do anything or kill you for your money.” Id. at 122. The following exchange between Mr. Rodas–Orellana and his attorney then ensued:

Q. Okay. So if [the gang] came, why would they want to take money from you?

A. Because that's their job, cheating people.

Q. So would they essentially be stealing the money from you?

A. No, they just come and say give me the money or you're going to die.

Q. But they do that to all kinds of people in El Salvador, right?

A. Yes, like for instance, for a store or something, they get there and they set a rent, something that has to be paid monthly.

Q. Okay. And so these people, these gang members, they're criminals, right?

A. Yes.

Id. at 126. Mr. Rodas–Orellana also noted gang members killed his brother-in-law because he failed to pay timely “rent,” which is “essentially the payment of extortion or protection money to the gang members.” Id. at 79, 322.

2. The IJ's Decision

On June 28, 2012, the IJ denied Mr. Rodas–Orellana's application for asylum and withholding of removal. First, the IJ concluded Mr. Rodas–Orellana did not “establish[ ] past persecution although he has suffered somewhat in the hands of the gang members.” Id. at 77. According to Mr. Rodas–Orellana himself, his injury “wasn't bad,” id. at 78, and his other two interactions with gang members seemed to the IJ to be “very minor episodes,” id. Second, the IJ determined Mr. Rodas–Orellana had “not establish[ed] a connection between the harm that he faces in El Salvador and one of the protected grounds.” Id. at 80. The IJ noted Mr. Rodas–Orellana had “not identified any reason for him to be targeted by the gang members other than their general desire to have the population in their area cooperate with [them] either by providing financial support or by joining the rank.” Id. at 79. Further, Mr. Rodas–Orellana's claim failed because “El Salvadoran youth who have been subject to recruitment efforts by the gangs and [have] rejected or resisted membership[ ] do not constitute a ‘particular social group.’ ” Id.

3. The BIA's January 22, 2014 Final Order of Removal

Mr. Rodas–Orellana filed an appeal with the BIA, which it rejected in a final order of removal. The BIA agreed with the IJ that “[p]ersons who have been subjected to...