Rojas–Pérez v. Holder

• Citation: 699 F.3d 74
• Decision Date: 05 November 2012
• Docket Number: No. 11–1047.,11–1047.
• Parties: Erasmo ROJAS–PÉREZ, Angélica García–Ángeles, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

699 F.3d 74

Erasmo ROJAS–PÉREZ, Angélica García–Ángeles, Petitioners,

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

No. 11–1047.

United States Court of Appeals,First Circuit.

Submitted May 11, 2012.

Decided Nov. 5, 2012.

Randy Olen and Robert D. Watt, Jr., on brief for petitioners.

Sabatino F. Leo, Trial Attorney, Office of Immigration Litigation, Civil Division, Tony West, Assistant Attorney General, and Anthony P. Nicastro, Senior Litigation Counsel, on brief for respondent.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

Erasmo Rojas–Pérez (“Rojas”), the lead petitioner in this case, and his wife, Angélica García–Ángeles (“García”), seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) on December 14, 2010. Because we conclude that the BIA's decision was reasonable and adequately supported by substantial evidence,we deny the instant petition for review.

I. Background

Rojas and García (collectively, the “petitioners”) entered the United States without inspection on January 2001 and July 2003, respectively. On November 16, 2004, the government filed a Notice to Appear (“NTA”) in immigration court charging Rojas with removability under sections 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1182(a)(6)(A)(i), 1182(a)(7)(A)(i)(I).¹ An NTA charging García with removability under INA § 212(a)(6)(A)(i) followed on September 12, 2006.

The petitioners conceded removability as aliens who had entered the United States without inspection but, on July 18, 2007, filed applications for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). Rojas and García each grounded their individual requests for relief on their stated belief that if the family returned to Mexico, their son Iker Rojas—a U.S. citizen by virtue of being born in the United States in 2006—could be kidnapped and held for ransom.

A hearing on the merits of the petitioners' applications was held before an immigration judge (“IJ”) on February 6, 2009. At the hearing, Rojas testified that he and García feared returning to Mexico because “people” would know that the family had been in, and returned from, the United States and this made it likely that his son could be kidnapped and held for ransom. Rojas added that he feared his son could be kidnapped by criminal gangs or “the police itself,” but denied having received any specific threats to that effect. Rojas also explained that neither he nor his wife's family had been subjected to attacks while in Mexico. García limited her testimony to brief remarks in which she admitted that she entered the United States without inspection in 2003 and affirmed that she was Rojas's spouse.

The IJ denied the petitioners' applications for withholding of removal on the same day as the merits hearing. The IJ found Rojas's and García's testimonies credible, but nonetheless concluded that they had not shown it was “more likely than not that they would be persecuted upon their return to Mexico on account of a statutorily protected ground.” Speaking specifically to Rojas's claims that he feared his family would be targeted on account of their sojourn in the United States, the IJ reasoned that persons “returning from the United States and who may be looked upon as having money ... do not comprise a particular social group” for withholding of removal relief.

The petitioners appealed the IJ's findings and, on December 14, 2010, the BIA affirmed the IJ's ruling. In its written order, the BIA defined the petitioners' purported social group as “persons who have a lengthy residence in the United States and are parents” of U.S. citizen offspring. The BIA reasoned that the petitioners' stated fear that their son could be kidnapped and held for ransom upon returning to Mexico was not properly grounded in their belonging to a discernible social group. To support its reasoning, the BIA cited to its own precedent for the proposition that “fear of persecution based on perceived wealth does not constitute a particular social group under the [INA].” Rojas then filed a timely petition for review with this court.

II. Discussion

This court has jurisdiction to review BIA-issued final removal orders under 8 U.S.C. § 1252(a). In circumstances such as the present case, where the “BIA adopts an IJ's decision but opts to offer a glimpse into its considerations, we review both the decision of the BIA and the IJ.” Restrepo v. Holder, 676 F.3d 10, 15 (1st Cir.2012). Under the applicable “substantial evidence” standard, we yield to the IJ's findings of fact “so long as they are ‘supported by reasonable, substantial and probative evidence on the record considered as a whole.’ ” Cheung v. Holder, 678 F.3d 66, 69 (1st Cir.2012) (quoting Seng v. Holder, 584 F.3d 13, 17 (1st Cir.2009)). Questions of law, however, are afforded de novo consideration, albeit with proper deference to the agency's interpretation of the applicable statutes and regulations. See Lobo v. Holder, 684 F.3d 11, 16 (1st Cir.2012); McCreath v. Holder, 573 F.3d 38, 41 (1st Cir.2009).

Under INA § 241(b)(3), withholding of removal relief must issue if the “Attorney General decides that the alien's life or freedom would be threatened in [the destination 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). An alien applying for such relief bears the burden of proof and must establish either of two showings: that he has “suffered past persecution” ²—thus creating a rebuttable presumption of likely future persecution—or, that if returned to his country of origin, “it is more likely than not that he ... would be persecuted” on account of the above-referenced factors. 8 C.F.R. § 208.16(b)(2). To establish either of these showings, an alien must show a “clear probability” of future persecution once repatriated. INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); see also Rashad v. Mukasey, 554 F.3d 1, 5–6 (1st Cir.2009).

Because the INA does not define the phrase “particular social group,” we have deferred to the BIA's interpretation of the term. See Mayorga–Vidal v. Holder, 675 F.3d 9, 14 (1st Cir.2012); Méndez–Barrera v. Holder, 602 F.3d 21, 25–26 (1st Cir.2010). Accordingly, we have recognized in this context that a legally “cognizable social group is one whose members share ‘a common, immutable characteristic that makes the group socially visible and sufficiently particular.’ ” Carvalho–Frois v. Holder, 667 F.3d 69, 73 (1st Cir.2012) (quoting Méndez–Barrera, 602 F.3d at 25).

We find that substantial evidence supports the agency's conclusion that Rojas failed to show that if the petitioners were to return to Mexico, it is more likely than not that they would be persecuted because they belong to a particular social group. Specifically, Rojas alleges that he and García face persecution if they return to Mexico because they belong to a particular social group comprised of “persons who have lengthy residence in the United States and are parents of a United States citizen.” As the IJ and the BIA both explained, the reasoning behind this argument appears to be that individuals returning from the United States would possibly be looked upon by criminals as being more financially well-off than others and would thus be targeted for harm—here, by the kidnapping and ransoming of their son who is a U.S. citizen.

Both this court and the BIA have rejected calls to recognize individuals who might be perceived as being wealthy or as “having money” and are returning to their country of origin after living in the United States as legally cognizable social groups. See Sicajú–Díaz v. Holder, 663 F.3d 1, 3–4 (1st Cir.2011)(rejecting class comprised of “wealthy individuals returning to Guatemala after a lengthy residence in the United States”); López–Castro v. Holder, 577 F.3d 49, 54 (1st Cir.2009) (rejecting argument that petitioner “would be exposed to an increased risk of future attacks by gang members in Guatemala because he [would] be perceived as wealthy”); see also Díaz v. Holder, 459 Fed.Appx. 4, 6 (1st Cir.2012); In re A–M–E & J–G–U–, 24 I. & N. Dec. 69, 75–76 (BIA 2007); In re S–V–, 22 I. & N. Dec. 1306, 1310 (BIA 2000), overruled on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir.2003). The reasoning underpinning these holdings is that, when a petitioner asserts that, upon repatriation, he would be persecuted on account of his perceived wealth or financial status, “[t]hat suggestion fails to establish an objectively reasonable basis for a fear of persecution premised on a statutorily protected ground.” López–Castro, 577 F.3d at 54. Put another way, a petitioner pressing such a contention does not advance an argument that he would be persecuted because of membership in a particular social group—“[a] country-wide risk of victimization through economic terrorism is not the functional equivalent of a statutorily protected ground....” Id.

In denying Rojas's application for withholding of removal and affirming that decision, both the IJ and the BIA (respectively) grounded their analyses on this well-settled logic. For his part, the IJ referenced BIA precedent for the proposition that “those who are returning from the United States and who may be looked upon as having money and therefore are fearful of being targets do not comprise a particular social group.” In its opinion, the BIA then reiterated the IJ's reasoning and cited several of its decisions endorsing the same rationale. We accordingly find the agency's judgment here to have been both reasonable and consonant with its precedent.³

In an attempt to outflank the considerable amount of case law supporting the agency's decision, Rojas advances a secondary and potentially more consequential argument. Specifically, Rojas takes issue with the BIA's reliance on ...