Claros Cantarero v. Holder, Jr. , 734 F.3d 82 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1624
KEVIN FABRICIO CLAROS CANTARERO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Timothy J. Nutter, with whom Law Office of Timothy J. Nutter
was on brief, for petitioner.
Matthew B. George, Trial Attorney, Office of Immigration
Litigation, with whom Stuart F. Delery, Acting Assistant Attorney
General and Mary Jane Candaux, Assistant Director were on brief,
for respondent.
October 31, 2013
HOWARD, Circuit Judge. Kevin Fabricio Claros Cantarero
("Claros"), a citizen and native of El Salvador, is an ex-member of
a violent criminal street gang based in the United States.
Claiming that he would face persecution and torture on account of
his former gang membership if repatriated, Claros applied for
asylum, withholding of removal, and protection under the Convention
Against Torture ("CAT"). An Immigration Judge ("IJ") denied his
applications, and the Board of Immigration Appeals ("BIA")
affirmed. We deny his petition for review.
I.
Claros entered the United States without inspection in
2004, when he was twelve years old. He came to join his parents,
who had arrived in 1992 and who became beneficiaries of the
Temporary Protected Status program.1 He has lived here
continuously since then.
In April 2010, the Bureau of Immigration and Customs
Enforcement ("ICE") took Claros into custody2 and served him with
a Notice to Appear charging him as removable under section
1
Claros's mother filed an application for asylum that has
been pending for some years now. Claros tells us that he is listed
as a derivative asylum beneficiary in that application. The record
makes clear that, although listed as her child, Claros is not
listed as a derivative beneficiary because he was not in the United
States at the time the application was filed.
2
Claros was released on bond several weeks later but was
taken into ICE custody again in June 2011 following a spate of
arrests. He has remained in custody since then.
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212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA").
See 8 U.S.C. § 1182(a)(6)(A)(i). Claros conceded removability and
applied for asylum, withholding of removal, and relief under the
CAT.
At an evidentiary hearing before an IJ, Claros testified
that he joined the East Boston arm of the 18th Street gang when he
was sixteen years old. The 18th Street gang is a prominent violent
criminal gang that is active throughout the United States and Latin
America. See Luz E. Nagle, Criminal Gangs in Latin America: The
Next Great Threat to Regional Security and Stability?, 14 Tex.
Hisp. J.L. & Pol'y 7, 9 (2008). Claros learned that gang
membership entailed engaging in a variety of illicit activities,
including robberies, thefts, and drug dealing. He received several
tattoos identifying him as a member of the 18th Street gang, some
of which are prominently displayed.
Two years after joining the gang, Claros became afraid of
the violent nature of gang life following a gang-related shooting
in the area where he was partying one night. Soon afterward,
Claros experienced a religious conversion and decided to leave the
gang. Some members of his gang beat him as a result. The leader
of the gang warned Claros that membership in the gang was a
lifelong commitment and that if he tried to leave, the gang would
kill him or members of his family.
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Claros testified that he feared persecution in El
Salvador on account of his former gang membership. Specifically,
he feared reprisals from the Salvadoran branch of the 18th Street
gang for his having renounced gang membership, as well as
persecution at the hands of rival gangs and police authorities. He
would become an easy target, argued Claros, because of his gang
tattoos.
The IJ found that Claros had indeed joined the 18th
Street gang in the United States and was sincere in his desire to
leave the gang. The IJ, however, rejected Claros's argument that,
as a former member of the gang, he is a member of a protected
social group eligible for asylum or withholding of removal.
Claros's claim under the CAT fared no better, as the IJ found no
evidence that the government of El Salvador is more likely than not
to torture Claros or to acquiesce in his torture.
The BIA agreed with the IJ and dismissed Claros's appeal.
It found controlling the principles announced in Matter of E–A–G-,
24 I. & N. Dec. 591 (BIA 2008), where it held that individuals
erroneously perceived as gang members cannot constitute a
"particular social group" under the INA. As in Matter of E-A-G-,
the BIA here was persuaded by the Ninth Circuit's rationale in
Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir. 2007), that
Congress could not have intended to offer refugee status based on
an alien's membership in a violent criminal street gang in this
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country. The BIA noted that the Seventh Circuit recognized an ex-
gang member as a member of a protected social group in Benitez
Ramos v. Holder, 589 F.3d 426, 429-30 (7th Cir. 2009), but it was
unpersuaded, and concluded that our circuit would not require it to
follow suit.
Because Claros failed to establish that the persecution
he anticipated in El Salvador was on account of a protected ground,
the BIA held that he was ineligible for asylum and, by extension,
for withholding of removal. The BIA also agreed with the IJ that
Claros failed to show that he would more likely than not be
tortured at the hands of the Salvadoran government, precluding his
CAT claim. This timely appeal followed.
II.
Persecution on the basis of "membership in a particular
social group" is, along with persecution on the basis of race,
religion, nationality, or political opinion, a ground for granting
asylum or withholding of removal. 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1), 1231(b)(3). Claros argues that former members of the
18th Street gang constitute a cognizable particular social group.
The BIA rejected his claim on the grounds that membership in a
violent criminal street gang cannot serve as the basis for
protected-group status under the INA.
Where, as here, the BIA rejects an applicant's proffered
social group on legal grounds, its decision is subject to de novo
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review. Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir. 2004).
Because we are confronted with a question implicating "'an agency's
construction of the statute which it administers,'" we follow
Chevron principles in our review of the BIA's decision. I.N.S. v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (quoting Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).
Accordingly, we first ask whether "the statute is silent or
ambiguous with respect to the specific issue" before us; if so,
"the question for the court is whether the agency's answer is based
on a permissible construction of the statute." Chevron, 467 U.S.
at 843.
The first question need not detain us long. The INA does
not define the term "particular social group." The term originated
in the 1967 United Nations Protocol Relating to the Status of
Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, with no guidance in
the legislative history as to its meaning. Sanchez–Trujillo v.
I.N.S., 801 F.2d 1571, 1575 (9th Cir. 1986). "Because of this
indeterminacy in the drafting process, the United States, along
with other developed countries, has had to struggle to give meaning
to a term that has little pedigree of its own." Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1095 (9th Cir. 2013) (Kozinski, C.J.,
dissenting); see Fatin v. I.N.S., 12 F.3d 1233, 1238 (3d Cir. 1993)
(noting that meaning of this term is so ambiguous that "[b]oth
courts and commentators have struggled to define [it]," and "[r]ead
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in its broadest literal sense, the phrase is almost completely
open-ended"). Accordingly, our role in the process of interpreting
this phrase is quite limited. We must uphold the BIA's
interpretation, provided it is based on "a permissible construction
of the statute." Aguirre-Aguirre, 526 U.S. at 424 (internal
quotation marks omitted). We have no doubt that the BIA's decision
in this case passes muster under this deferential standard.
The BIA first interpreted the phrase "particular social
group" in Matter of Acosta as referring to "a group of persons all
of whom share a common, immutable characteristic." 19 I. & N. Dec.
211, 233 (BIA 1985). Recognizing that "a shared past experience"
may be sufficient "in some circumstances," the BIA noted that the
"particular kind of group characteristic that will qualify under
this construction remains to be determined on a case-by-case
basis." Id. In subsequent decisions, the BIA elaborated that the
proffered characteristic must make the group socially visible and
sufficiently particular. See Matter of S-E-G-, 24 I. & N. Dec.
579, 582-83 (BIA 2008); see also Scatambuli v. Holder, 558 F.3d 53,
59–60 (1st Cir. 2009) (examining the contours of the BIA's social
visibility test and finding that "it is relevant to the particular
social group analysis").
Claros argues that his proposed group falls squarely
within the BIA's definition of "particular social group" because
the group is both socially visible and sufficiently particular.
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The BIA, however, did not rely on its social visibility criteria in
rejecting Claros's claim. Indeed, the BIA cited extensively to its
decision in Matter of E-A-G-, which rejected a social group
composed of "young persons who are perceived to be affiliated with
gangs" despite acknowledging that "[g]ang membership does . . .
entail some 'social visibility.'" 24 I. & N. Dec. at 595. Rather,
the BIA rejected Claros's proposed group on the grounds that
recognizing former members of violent criminal gangs as a
particular social group would undermine the legislative purpose of
the INA. Like the court in Arteaga, the BIA held that it is
inconceivable that "'Congress, in offering refugee protection for
individuals facing potential persecution through social group
status, intended to include violent street gangs who assault people
and who traffic in drugs and commit theft.'" Matter of E-A-G-, 24
I. & N. Dec. at 596 (quoting Arteaga, 511 F.3d at 945-46). In
short, the BIA held that this type of shared past experience is not
a cognizable group characteristic for the purposes of the INA.
We cannot say that the BIA's interpretation is either
unreasonable or impermissible. See Arteaga, 511 F.3d at 944–46
(holding that neither current nor former gang members constitute a
particular social group); cf. Elien, 364 F.3d at 397 (deferring to
the BIA's determination that aliens who commit crimes in the United
States are not a protected social group); Bastanipour v. I.N.S.,
980 F.2d 1129, 1132 (7th Cir. 1992) (rejecting a comparable
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argument that drug traffickers are a recognized group under the
INA). The BIA reasonably concluded that, in light of the manifest
humanitarian purpose of the INA, Congress did not mean to grant
asylum to those whose association with a criminal syndicate has
caused them to run into danger. See Arteaga, 511 F.3d at 942
(noting that courts ought not "become misled by expansive and
abstract definitions of the term 'social group' to the extent that
the application of such a definition fails to comport with the
manifest legislative purpose of the law and its language"). Such
recognition would reward membership in an organization that
undoubtedly wreaks social harm in the streets of our country. It
would, moreover, offer an incentive for aliens to join gangs here
as a path to legal status. Cf. Elien, 364 F.3d at 397 (noting that
recognizing aliens who commit crimes in the United States as a
protected social "unquestionably would create a perverse incentive
for [aliens] . . . to commit crimes, thereby immunizing themselves
from deportation"). Accordingly, the BIA's interpretation merits
our deference under Chevron.
Claros contends that the BIA's reasoning is flawed as
applied to former gang members. Unlike current gang members, he
tells us that he no longer belongs to a "dangerous street gang"
precisely because he decided to escape the violent and criminal
nature of gang life. He insists that he will be persecuted
precisely because he left the gang, and also because he will be
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misidentified as a current gang member due to his tattoos. These
distinctions do not invalidate the BIA's conclusion that former
gang members are not eligible for asylum. A former gang member was
still a gang member, and the BIA is permitted to take that into
account. That he renounced the gang does not change the fact that
Claros is claiming protected status based on his prior gang
membership, and he does not deny the violent criminal undertakings
of that voluntary association. Although, as Claros points out, the
proposed group also shares non-criminal past experiences, namely
their initiation rites, tattoos, and status as Spanish-speaking
immigrants, the BIA is not required to dissect a group's past
experiences and credit only the arguably innocuous ones. The
shared past experiences of former members of the 18th Street gang
include violence and crime. The BIA's decision that this type of
experience precludes recognition of the proposed social group is
sound.
Withal, we decline to follow in the footsteps of the
Sixth and Seventh Circuits in reversing the BIA on this issue. See
Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir. 2010);
Benitez Ramos, 589 F.3d at 429-30. The Sixth Circuit did not
address the BIA's conclusion that it would be inconsistent with
policies inherent in the statute to recognize participation in a
criminal syndicate as a basis for refugee protection. See Urbina-
Mejia, 597 F.3d at 365-67. Instead, the court relied on the fact
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that former gang membership is a characteristic impossible to
change, id., and did not consider that immutability, though a
necessary predicate, is not sufficient for recognition as a social
group. The Seventh Circuit went a step further and rejected the
BIA's interpretation on the grounds that Congress had no intention
of barring ex-gang members from constituting a particular social
group. Benitez Ramos, 589 F.3d at 429-30. Congress evinced this
lack of intent, that court concluded, by not naming former gang
members when it categorically banned certain individuals from
obtaining relief under the INA, such as persecutors and those who
have committed a "serious nonpolitical crime." Id. (citing 8
U.S.C. §§ 1158(b)(2)(A), 1231(b)(3)(B)). As the BIA had failed to
explain "why the statutory bars . . . should be extended by
administrative interpretation to former members of gangs," the
court rejected the agency's position that former gang members do
not constitute a protected social group. Id. at 430. We think
that the statutory scheme provides enough support under a Chevron
review to sustain a different answer. Whether an applicant is
statutorily barred from obtaining relief under the INA comes into
play only after an applicant is deemed to fall within one of the
five protected grounds. See 8 U.S.C. § 1158(b)(2)(A). The
statutory bars have no bearing on whether an applicant is a member
of a particular social group, the basis for the BIA's preclusion of
former members of violent criminal gangs. Thus, we disagree that
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Congress's decision not to expressly exclude former gang members is
probative of its intent as to whether they are eligible for refugee
status as a protected group. It would also seem that the Seventh
Circuit's approach would render largely superfluous the term
"social group" since, by its reasoning, anyone persecuted for any
reason (other than perhaps a personal grudge) might be said to be
in such a group.
In sum, we are not persuaded that those courts which have
reversed the BIA on this issue have advanced rationales sufficient
to overcome Chevron deference. The agency's decision that Claros
is not a member of a particular social group must stand.
Claros has one more arrow in his quiver. He challenges
the BIA's factual finding that he does not qualify for relief under
the CAT. We review the BIA's findings of fact for substantial
evidence, accepting those findings as long as they are "supported
by reasonable, substantial, and probative evidence on the record
considered as a whole." I.N.S. v. Elias-Zacarias, 502 U.S. 478,
481 (1992) (internal quotation marks omitted). In denying his CAT
claim, the BIA agreed with the IJ that Claros presented
insufficient evidence that he would more likely than not be
tortured at the hands of the Salvadoran government. See Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 221 (1st Cir. 2007) ("[T]he
infliction of harm does not constitute torture within the meaning
of the CAT unless that harm is inflicted by, at the direction of,
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or with the acquiescence of government officials."). The record
does not compel a different conclusion. In rejecting Claros's
argument that the government of El Salvador is unable to protect
those who are persecuted by gangs, the IJ credited evidence that
the government is actively seeking to curb gang violence. As we
said in Mayorga-Vidal v. Holder, that "El Salvador's efforts at
managing gang activity have not been completely effectual" does not
compel a conclusion that the government has acquiesced in gang
activities. 675 F.3d 9, 20 (1st Cir. 2012).
Claros also argues that the police authorities in that
country arbitrarily detain suspected gang members and torture them.
He provides no specific evidence to support the claim; instead he
merely refers to a large swath of the record, listing no fewer than
ten country reports and other documentary evidence that span over
150 pages and cover an array of topics. And so he tasks us to
search for needles in a haystack. "We have long warned litigators
that it is not the obligation of federal courts to 'ferret out and
articulate the record evidence considered material to each legal
theory advanced on appeal.'" City of Pittsfield v. E.P.A., 614
F.3d 7, 12 (1st Cir. 2010) (quoting Conto v. Concord Hosp., Inc.,
265 F.3d 79, 81 (1st Cir. 2001)). Accordingly, we deem the
argument waived. See United States v. Candelaria-Silva, 162 F.3d
698, 707-08 (1st Cir. 1998) (finding argument waived where
appellant "request[ed] that we conduct 'a reading of the entire
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record with care,'" yet failed to spell out pertinent facts in
brief). In any event, substantial evidence supports the BIA's
rejection of his claim. Although the record reveals that some
police officers have mistreated detainees, the record also supports
the conclusion that such individuals were arrested for their
actions, expelled from the police force, or otherwise held
responsible for their misconduct. Accordingly, we affirm the BIA's
decision that Claros is not entitled to relief under the CAT.
III.
For the aforementioned reasons, we deny Claros's petition
for review.
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