Perez-Rabanales v. Sessions

2018 | Cited 0 times | First Circuit | January 26, 2018

United States Court of Appeals For the First Circuit

No. 17-1803

ANA MARINA PEREZ-RABANALES,

Petitioner,

v.

JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson, Selya, and Kayatta, Circuit Judges.

Kevin P. MacMurray, Daniel W. Chin, and MacMurray & Associates on brief for petitioner. Chad A. Readler, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, and Carmel A. Morgan, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

January 26, 2018

SELYA, Circuit Judge. The petitioner, Ana Marina Perez-

Rabanales, a Guatemalan national, seeks judicial review of a final

order of the Board of Immigration Appeals (BIA) denying her

application for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture (CAT). We

conclude that the petitioner has failed to show that the claimed

persecution took place on account of her membership in a cognizable

social group. Based largely on that conclusion, we hold that the

BIA's final order is in accordance with law and is supported by

substantial evidence in the record. Consequently, we deny the

petition.

I. BACKGROUND

The petitioner resided in Guatemala until April of 2014,

when she attempted to enter the United States. She claims that in

2003, a man named Rodrigo De Leon grabbed her as she was walking

home from church and raped her. She did not contact the police

because she believed that women have no rights in Guatemala and

that the police would be unwilling to protect her. To avoid future

encounters with De Leon, she altered her route to church.

Notwithstanding her precautions, De Leon tracked her down and raped

her a second time.

The petitioner became pregnant as a result of this second

rape. She told her mother about both the pregnancy and De Leon's

assaults. Soon thereafter, De Leon left Guatemala. But as word

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spread that the petitioner was carrying De Leon's child, she began

to experience abuse from De Leon's family. Three of his relatives

beat her with sticks and threatened her life. De Leon was married

at the time of the rapes, and she believed that his relatives,

upon learning of her pregnancy, blamed her for "wreck[ing] his

home."

The petitioner gave birth to her son, Juanfer Perez, in

March of 2004. At an unspecified later date in 2007, she was

attacked by De Leon's sister-in-law, who pulled her hair, threw

her to the ground, and struck her with a rock. An x-ray taken at

a local hospital revealed that blood had pooled in the petitioner's

brain as a result of the attack. Although she seldom went outdoors

following this incident for fear of another confrontation, De

Leon's relatives continued to scream at her from outside her home.

The petitioner subsequently met Raoul Mauricio, with

whom she lived and had a child (Astrid Mauricio). De Leon's family

continued harassing her, and the harassment persisted after Raoul

Mauricio emigrated to the United States in 2010. The petitioner

recalls that members of De Leon's family told her that "now that

you are alone, we can deal with you, bitch."

On or about April 26, 2014, the petitioner, accompanied

by her minor daughter Astrid Mauricio, crossed the border into

Texas and entered the United States without inspection. She was

detained upon entry and placed in removal proceedings. Conceding

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removability, she cross-applied for asylum, withholding of

removal, and CAT protection. In support, she claimed both past

persecution and a well-founded fear of future persecution on

account of her membership in a particular social group.

At the conclusion of her removal hearing, the

immigration judge (IJ) found the petitioner credible, but denied

relief. The IJ concluded that the petitioner was ineligible for

either asylum or withholding of removal because she was unable to

show that the harm she suffered in Guatemala was on account of a

statutorily protected ground. The IJ also concluded that the

petitioner did not qualify for CAT protection because she had not

established a likelihood that, if repatriated, she would be

subjected to torture with the consent, acquiescence, or willful

blindness of a public official. Following the petitioner's

unsuccessful appeal to the BIA, she prosecuted this petition for

judicial review.

II. ANALYSIS

Judicial review in immigration cases typically focuses

on the final decision of the BIA. See Cabrera v. Lynch, 805 F.3d

391 , 393 (1st Cir. 2015). "But where, as here, the BIA accepts

the IJ's findings and reasoning yet adds its own gloss, we review

the two decisions as a unit." Id. (quoting Moreno v. Holder, 749

F.3d 40 , 43 (1st Cir. 2014)). We proceed accordingly.

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In the course of our review, "[c]laims of legal error

engender de novo review, with some deference to the agency's

expertise in interpreting both the statutes that govern its

operations and its own implementing regulations." Id. Factual

findings are reviewed for substantial evidence. See López-Castro

v. Holder, 577 F.3d 49 , 52 (1st Cir. 2009). "Under this highly

deferential standard, we must accept the BIA's findings so long as

they are 'supported by reasonable, substantial, and probative

evidence on the record considered as a whole.'" Nikijuluw v.

Gonzales, 427 F.3d 115 , 120 (1st Cir. 2005) (quoting INS v. Elias-

Zacarias, 502 U.S. 478 , 481 (1992)). Thus, the agency's factual

findings will not be disturbed unless "the record is such as to

compel a reasonable factfinder to reach a contrary determination."

Jianli Chen v. Holder, 703 F.3d 17 , 21 (1st Cir. 2012).

To establish her eligibility for asylum, an alien must

show that she is a refugee as defined by the Immigration and

Nationality Act. See 8 U.S.C. § 1101 (a)(42)(A); see also Villa-

Londono v. Holder, 600 F.3d 21 , 24 (1st Cir. 2010). "A refugee is

a person who cannot or will not return to her home 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.'" Olujoke v. Gonzales, 411 F.3d 16 ,

21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)).

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Here, the petitioner pins her hopes on the fourth of

these five statutorily protected grounds: membership in a

particular social group. The Immigration and Nationality Act does

not define what constitutes membership in a particular social

group. Decisional law has filled this void: to make out a

cognizable social group, an alien must show that the group's

members share a common immutable characteristic, see Paiz-Morales

v. Lynch, 795 F.3d 238 , 243 (1st Cir. 2015); that the group can be

defined with particularity, see id.; and that the group is socially

distinct, see id.; see also Matter of M-E-V-G-, 26 I. & N. Dec.

227, 232 (BIA 2014). Our cases have consistently employed this

tripartite formulation in passing upon the cognizability of social

groups. See, e.g., Granada-Rubio v. Lynch, 814 F.3d 35 , 38 (1st

Cir. 2016); Paiz-Morales, 795 F.3d at 243-44; Mendez-Barrera v.

Holder, 602 F.3d 21 , 25 (1st Cir. 2010).

In the case at hand, the petitioner's claims are premised

on her membership in a social group that she describes as

constituting "Guatemalan women who try to escape systemic and

severe violence but who are unable to receive official protection."

Both the IJ and the BIA concluded that this proffered social group

was not legally cognizable. As we explain below, this conclusion

is in accordance with law and is supported by substantial evidence.

The BIA has defined a common, immutable characteristic

as "one that the members of the group either cannot change, or

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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). We assume, favorably to the

petitioner, that she has demonstrated a common, immutable

characteristic amongst members of her proffered social group:

gender. This assumption appears warranted since the BIA has

recognized gender as sufficient for this purpose. See Matter of

A-R-C-G-, 26 I. & N. Dec. 388, 392 (BIA 2014).

Even so, we are mindful that "the social group concept

would virtually swallow the entire refugee definition if common

characteristics, coupled with a meaningful level of harm, were all

that need be shown." Paiz-Morales, 795 F.3d at 243 (quoting Matter

of M-E-V-G-, 26 I. & N. Dec. at 231). To avoid such overbreadth,

a cognizable social group must also satisfy the particularity and

social distinctiveness requirements. See id. The petitioner's

proffered social group fails to satisfy either of these

prerequisites.

The particularity requirement seeks to determine whether

a proffered social group can be described in a manner sufficiently

unique to ensure that the group would be recognized in its own

society as a discrete class of persons. See Matter of S-E-G-, 24

I. & N. Dec. 579, 584 (BIA 2008). If the description of the group

is so amorphous as to preclude a rational determination of group

membership, the particularity requirement is not met. See id. It

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follows, we think, that a proffered social group is not

sufficiently particular if it is broad to the point of

indeterminacy. See Tay-Chan v. Holder, 699 F.3d 107 , 112 (1st

Cir. 2012) (holding that a group consisting of "victims of gang

threats and possible extortion" was overly broad and, thus,

insufficiently particular). The petitioner's proffered social

group potentially encompasses all women in Guatemala, as any woman

in Guatemala may fall victim to violence and find herself unable

to obtain official protection. The amorphous nature of this

sprawling group precludes determinacy and renders the group

insufficiently particular.

Nor is this the only shortcoming in the petitioner's

attempt to construct a cognizable social group. The social

distinctiveness requirement demands that the proffered group be

perceived as a group by the society in which it exists. See Vega-

Ayala v. Lynch, 833 F.3d 34 , 39-40 (1st Cir. 2016). This element

turns on "whether members of a particular group 'are set apart, or

distinct, from other persons within the society in some significant

way.'" Id. at 39 (quoting Granada-Rubio, 814 F.3d at 39). The

test is whether, "if the common, immutable characteristic were

known, those with the characteristic in the society in question

would be meaningfully distinguished from those who do not have

it." Id. at 39-40.

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The petitioner argues that her status as a woman who

feels unable to seek official recourse placed her in a socially

visible group within her society in Guatemala. She relies on

Matter of A-R-C-G- to buttress her proposition that a particular

social group may consist of women subject to violence. See,

Matter of A-R-C-G-, 26 I. & N. Dec. at 390-94 (holding that

"married women in Guatemala who are unable to leave their

relationship" may constitute a cognizable social group). The BIA

rejected this attempted comparison, finding that the petitioner's

proffered social group — unlike the social group recognized in

Matter of A-R-C-G- — lacks any socially visible characteristics

independent of the harm of which the petitioner complains.

We agree. Comparing the petitioner's proffered social

group to the social group found cognizable in Matter of A-R-C-G-

is like comparing carrots to cucumbers. The alien in Matter of A-

R-C-G- was able to show that the group in which she claimed

membership — "married women in Guatemala who are unable to leave

their relationship" — was viewed by her society as a discrete class

of persons. Id. The members' status as women forced to remain in

their marriages left them uniquely vulnerable to persecution — a

fact that was easily recognizable by Guatemalan society. See id.

at 394 (noting that Guatemala's "culture of machismo and family

violence" and a consistent failure on the part of law enforcement

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to protect married women from these offenses contribute

significantly to the social distinctiveness of the group).

Here — unlike in Matter of A-R-C-G- — the petitioner's

proffered social group is defined by the persecution of its

members. This distinction has decretory significance. A

sufficiently distinct social group must exist independent of the

persecution claimed to have been suffered by the alien and must

have existed before the alleged persecution began. See Burbiene

v. Holder, 568 F.3d 251 , 254 (1st Cir. 2009); Rreshpja v. Gonzales,

420 F.3d 551 , 556 (6th Cir. 2005); Matter of W-G-R-, 26 I. & N.

Dec. 208, 215 (BIA 2014); see also Escobar v. Holder, 657 F.3d

537 , 545 (7th Cir. 2011) (noting that "[w]here a proposed group is

defined only by the characteristic that it is persecuted, it does

not qualify as a 'social group'"). The petitioner has offered no

evidence to show that the members of her proffered social group

("Guatemalan women who try to escape systemic and severe violence

but who are unable to receive official protection") — unlike the

members of the social group recognized in Matter of A-R-C-G- —

were viewed by Guatemalan society as either distinct or uniquely

vulnerable prior to the commission of the acts of persecution of

which they complain. Consequently, the petitioner's proffered

social group fails to satisfy the social distinctiveness

requirement.

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That ends this aspect of the matter. The petitioner's

failure to satisfy both the particularity and the social

distinctiveness requirements defeats her attempt to qualify as a

refugee through membership in a particular social group.1

As an attempted fallback, the petitioner argues that the

agency erred in failing to analyze her claim of past persecution.

The Immigration and Nationality Act, though, does not provide a

pathway to asylum for all individuals who have suffered harm severe

enough to rise to the level of persecution. See Sugiarto v.

Holder, 586 F.3d 90 , 95 (1st Cir. 2009). To warrant such relief,

the claimed harm must have been causally connected to one of the

five statutorily protected grounds. See Lopez Perez v. Holder,

587 F.3d 456 , 462 (1st Cir. 2009). Absent such a nexus, a free-

floating finding of persecution is not itself sufficient to pave

the way for asylum. See Sugiarto, 586 F.3d at 95. Because the IJ

and the BIA supportably found that the petitioner failed to

establish a nexus between the claimed harm and a statutorily

protected ground, there was no error in forgoing an analysis of

past persecution.

1 In an effort to change the trajectory of the debate, the petitioner suggests that she may qualify for relief as a member of a different social group: "victims of a crime." Because the petitioner proffers this alternative description for the first time in this court, we lack jurisdiction to consider it. See Villa- Londono, 600 F.3d at 25.

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So, too, the IJ and the BIA did not err in declining to

reach the issue of humanitarian parole. Since humanitarian parole

requires a showing of past persecution on account of a statutorily

protected ground, see Ordonez-Quino v. Holder, 760 F.3d 80 , 96

(1st Cir. 2014), no separate analysis was needed to warrant the

dismissal of this claim.

Having disposed of the petitioner's application for

asylum, we need not linger long over her application for

withholding of removal. "[C]laims for withholding of removal

require a higher level of proof than claims for asylum. It follows

that if a claim for asylum is rejected on the merits, a counterpart

claim for withholding of removal must necessarily fail." Villa-

Londono, 600 F.3d at 24 n.1; accord Rodriguez-Ramirez v. Ashcroft,

398 F.3d 120 , 123 (1st Cir. 2005). Because the petitioner's asylum

claim fails on its merits, her counterpart claim for withholding

of removal fails as well.

Finally, both the IJ and the BIA rejected the

petitioner's claim for CAT protection, concluding that she had not

shown a likelihood that she would be subject to torture upon her

return to Guatemala at the instigation or with the acquiescence of

a government official. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a).

In this court, the petitioner has not advanced any developed

argumentation relating to this claim. Consequently, we deem it

abandoned. See Ahmed v. Holder, 611 F.3d 90 , 98 (1st Cir. 2010).

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III. CONCLUSION

We need go no further. Although the petitioner presents

a sympathetic case, it is not a case that demonstrates her

entitlement to the relief that she seeks. Accordingly, we deny

the petition for judicial review.

So Ordered.

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