Paiz-Morales v. Lynch , 795 F.3d 238 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1182
ELMER HUMBERTO PAIZ-MORALES,
Petitioner,
v.
LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Lydia M. Sanchez on brief for petitioner.
Sui P. Wong, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice Civil Division,
with whom Joyce R. Branda, Acting Assistant Attorney General, and
Anthony W. Norwood, Senior Litigation Counsel, were on brief, for
respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
July 29, 2015
THOMPSON, Circuit Judge. Petitioner Elmer Humberto
Paiz-Morales, a native of Guatemala who entered the United States
unlawfully in 1993, appeals from the Board of Immigration Appeals's
("BIA") decision affirming an Immigration Judge's ("IJ") denial of
his application for asylum and withholding of removal.1 For the
reasons expressed below, we deny the petition.
I. Background
In April 1998, Paiz-Morales filed an application for
asylum and withholding of removal. In October of that year, the
Immigration and Naturalization Service ("INS") served him with a
Notice to Appear for a removal hearing. When Paiz-Morales failed
to appear, a removal order was issued in absentia. In 2008, Paiz-
Morales moved to reopen the order of removal, which was granted.
Paiz-Morales then requested asylum, withholding of removal,
protection under the Convention Against Torture ("CAT"), and
1 Paiz-Morales also contests the denial of his application
for protection under the Convention Against Torture ("CAT"). Under
8 U.S.C. § 1252(d)(1), we may review a final order of removal only
if the petitioner has exhausted his administrative remedies. Paiz-
Morales did not challenge the IJ's dismissal of his CAT claim
before the BIA. Aside from one sentence in his brief to the BIA,
asserting that the IJ erred in denying his application for "asylum,
withholding of removal and protection against torture," Paiz-
Morales did not argue the merits of the CAT claim. "[T]heories
not advanced before the BIA may not be surfaced for the first time
in a petition for judicial review of the BIA's final order."
Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Because he
did not raise this claim before the BIA, we do not have
jurisdiction to review it here. Shah v. Holder, 758 F.3d 32, 37
(1st Cir. 2014).
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voluntary departure. A hearing was held on June 11, 2012, at which
Paiz-Morales testified.2
Paiz-Morales's persecution claim stemmed from actions
related to the Guatemalan Civil War. In particular, he testified
that he left Guatemala before he turned eighteen because anti-
government guerillas came to his house on several occasions to
threaten him into cooperating with them. On one occasion,
according to Paiz-Morales, the guerillas held him for about a week.
Although he was released, the guerillas returned to assault him
and to persuade him to drive a truck for them. According to Paiz-
Morales, the guerillas returned several times, threatened his
family, and beat him. During his last encounter with the
guerillas, he received a cut on his neck. Paiz-Morales left
Guatemala for the United States in February 1993, where he lived
for a time in California before moving to Massachusetts.
Following the hearing, the IJ rendered an oral decision
finding Paiz-Morales to be credible, and granting him voluntary
departure, but holding that he had failed to meet his burden of
showing that he was entitled to asylum, withholding of removal, or
CAT protection. Specifically, the IJ found that Paiz-Morales could
not establish a nexus between his past harm and a protected ground.
2 Because the IJ and the BIA found him credible, we will rely
on Paiz-Morales's testimony for our recitation of the background
facts.
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The IJ found that Paiz-Morales had not offered any evidence that
he had suffered torture at the hands of the Guatemalan government,
nor that the government allowed others to torture him. Finally,
the IJ found that Paiz-Morales had not met his burden of proving
past persecution and did not have an objectively reasonable fear
of future persecution.
Paiz-Morales appealed the IJ's decision to the BIA. He
persisted in arguing that he had established a nexus between his
past persecution by guerillas and a protected ground, and now also
argued that he reasonably feared future persecution due to his
membership in a particular social group consisting of "members
that oppose gang membership." He claimed that "gang members know
which persons in society are against their philosophies because
gang members themselves wear certain clothing, have tattoos on
their bodies and have easily identifiable signs of gang membership
on their persons or bodies."
In its review, the BIA affirmed the IJ's decision,
finding that Paiz-Morales had failed to demonstrate a protected
ground to go along with his alleged past persecution by guerillas
or (on the future persecution front) that "members that oppose
gang membership" is a legally cognizable social group. Further,
the BIA stated that because Paiz-Morales had failed to carry his
burden of showing past persecution or a well-founded fear of future
persecution (required for asylum), he also failed to meet the
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higher standard required for withholding of removal. Finally, the
BIA noted that Paiz-Morales did not "specifically or meaningfully
challenge" the IJ's determination that he was not eligible for
protection under CAT.
This petition followed. In it, Paiz-Morales argues that
he reasonably fears future persecution based on his membership in
a particular social group, which he defines as "members opposed to
gang membership."3
II. Discussion
When the BIA "adopts portions of the IJ's findings while
adding its own gloss, we review both the IJ's and the BIA's
decisions as a unit." Renaut v. Lynch, ___ F.3d ___, 2015 WL
3486688 at *2 (1st Cir. June 3, 2015) (internal quotation marks
and citation omitted). We apply a substantial evidence standard
to administrative findings of fact, and will accept them "as long
as they are supported by reasonable, substantial and probative
evidence on the record considered as a whole." Singh v. Holder,
750 F.3d 84, 86 (1st Cir. 2014) (internal quotation marks and
citation omitted). "[W]e will reverse only if the record is such
3 Paiz-Morales states a few times in his brief to this court
that the BIA erred in finding that he failed to establish a nexus
between his past persecution by guerillas and a protected ground.
However, he does no more than indicate what the BIA held and
reiterate that guerillas previously tortured him. Given his
failure to provide any sort of developed argument, we treat the
issue as waived. United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
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as to compel a reasonable factfinder to reach a contrary
determination." Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir.
2012). Rulings of law are reviewed de novo, "but with some
deference to the agency's reasonable interpretation of statutes
and regulations that fall within its sphere of authority." Id.
"An applicant for asylum must demonstrate a well-founded
fear of persecution on one of five protected grounds" -- race,
religion, nationality, political opinion or membership in a
particular social group. Singh, 750 F.3d at 86 (internal quotation
marks and citations omitted). This burden can be met with "proof
of past persecution, which creates a rebuttable presumption of a
well-founded fear of future persecution." Id.
The asylum statute does not define what constitutes
"membership in a particular social group." See 8 U.S.C. §
1101(a)(42). The BIA's definition has developed over time;
initially it required only that members share a "common immutable
characteristic." Matter of M-E-V-G, 26 I. & N. Dec. 227, 231 (BIA
2014). Amid fears 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," the BIA later refined the particular social group
definition to include the concepts of "social visibility" and
"particularity." Id. at 231, 232 (internal quotation marks and
citation omitted).
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That was the state of the definition at the time Paiz-
Morales's appeal was decided. The following month, the BIA
responded to confusion that had "led some to believe that literal
. . . 'ocular' . . . visibility is required to make a particular
social group cognizable," and renamed the "'social visibility'
requirement as 'social distinction.'" Id. at 236. Paiz-Morales
now argues that this "new case law" requires us to remand his case
for reconsideration in light of the "clarification of the BIA's
position on the social visibility requirement."
However, the plain language of Matter of M-E-V-G
indicates that the "transition to the term 'social distinction' is
intended to clarify the requirements announced in [two earlier
cases]; it does not mark a departure from established principles."
Id. at 247. Specifically, the BIA clarified that "[t]o be socially
distinct, a group need not be seen by society; rather, it must be
perceived as a group by society." Id. at 240. The BIA further
explained that it "would reach the same result in [those earlier
cases] if we were to apply the term 'social distinction' rather
than 'social visibility.'" Id. at 247. The effect is no different
for Paiz-Morales. The change in terminology did not depart from
the BIA's prior interpretation, but merely clarified that literal
ocular visibility "is not, and never has been, a prerequisite for
a viable particular social group." Id. at 238. There is nothing
to suggest that either the IJ or the BIA required Paiz-Morales to
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show literal ocular visibility. Accord Rodas-Orellana v. Holder,
780 F.3d 982, 994 (10th Cir. 2015). We decline the petitioner's
invitation to remand on that basis.
Paiz-Morales next argues that the BIA erred in finding
that he failed to establish a protected ground for asylum because
his proposed social group is not a legally cognizable particular
social group. "To prove persecution on account of membership in
a particular social group, an alien must show at a bare minimum
that [he] is a member of a legally cognizable social group."
Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010). As
previously discussed, an applicant seeking asylum or withholding
of removal "based on 'membership in a particular social group'
must establish that the group is: (1) composed of members who share
a common immutable characteristic, (2) defined with particularity,
and (3) socially distinct within the society in question." Matter
of M-E-V-G, 26 I. & N. Dec. at 237.
We can pass over the first and third requirements,
because even if the petitioner could show that he shared an
immutable characteristic with a socially distinct group, he failed
to define the purported group with the requisite particularity.
The only evidence Paiz-Morales offers in the way of particularity
is the statement that "gang members can easily point out those who
are against their philosophies -- gang members wear certain
clothing and tattoos." That may be true, but petitioner has only
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described a group consisting of gang members. By his definition,
anyone not wearing "certain clothing and tattoos" would be a member
of his group. To meet the particularity requirement, a group must
be "discrete and have definable boundaries -- it must not be
amorphous, overbroad, diffuse or subjective." Id. at 239. A group
consisting of all Guatemalan citizens who do not sport gang colors
and tattoos is by definition too amorphous and overbroad to be
particular.
Paiz-Morales attempts to distinguish his case from that
of Matter of W-G-R, 26 I. & N. Dec. 208, 221-222 (BIA 2014), in
which the BIA found that a proposed group consisting of "former
gang members who have renounced their gang membership" did not
meet the particularity requirement because the group could include
people of any sex, age, or belief about gang activities.
Similarly, the group that Paiz-Morales describes would include
both infants and grandmothers. However, according to Paiz-
Morales, his group is united by "a common belief of opposition to
gang membership." Yet he offers no clue as to how -- aside from
the lack of gang indicia -- one might draw a distinction between,
say, octogenarians who oppose gang membership and teenage girls
who hold no opinion on gangs whatsoever. Although Paiz-Morales
argues that he is a member of a particular group, "members opposed
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to gang membership," he did not offer any evidence of the existence
of this group, aside from his own assertion.4
In Mendez-Barrera, we held that a proposed group, "young
women recruited by gang members who resist such recruitment," was
not "sufficiently particular to be legally cognizable." 602 F.3d
at 27. This "loose description" made it "virtually impossible to
identify who is or is not a member," because it left open questions
as to who could be considered "young," what conduct counted as
"recruitment," and what degree of "resistance" must be displayed.
Id. We stated that "[t]hese are ambiguous group characteristics,
largely subjective, that fail to establish a sufficient level of
particularity." Id. The description of Paiz-Morales's proposed
group is even less specific than that in Mendez-Barrera. Our
previous decisions have also rejected similar proposed social
groups. See Garcia-Callejas v. Holder, 666 F.3d 828, 829-30 (1st
Cir. 2012) (rejecting targets of gang recruitment in El Salvador
as a particular social group); Larios v. Holder, 608 F.3d 105,
108-09 (1st Cir. 2010) (rejecting the proposed group "young
4
In his brief submitted to this court, Paiz-Morales belatedly
asserts that his argument "could be framed in terms of his
political opinion." However, Paiz-Morales did not raise that
argument before either the IJ or the BIA, so we will not consider
it. "We have consistently held that arguments not raised before
the BIA are waived due to a failure to exhaust administrative
remedies." Shah, 758 F.3d at 37 (internal quotation marks
omitted).
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Guatemalan men recruited by gang members who resist such
recruitment").
We do not mean to suggest "a blanket rejection of all
factual scenarios involving gangs." Matter of M-E-V-G, 26 I. & N.
Dec. at 251. "Social group determinations are made on a case-by-
case basis." Id. But on the record of this case, where Paiz-
Morales failed to offer any evidence of the existence of a legally
cognizable particular social group, it is clear that the BIA's
determination was supported by substantial evidence.
Finally, Paiz-Morales argues that the BIA erred in
dismissing his appeal of the denial of his application for
withholding of removal. We can dispense with this argument
quickly. "Although the threshold of eligibility for withholding
of removal is similar to the threshold for asylum, withholding
requires a higher standard." Scatambuli v. Holder, 558 F.3d 53,
58 (1st Cir. 2009). "Withholding of removal requires a showing
that an alien is more likely than not to face persecution on
account of a protected ground." Id. (internal quotation marks
omitted). Paiz-Morales did not establish that he faced persecution
on account of a legally cognizable social group. A petitioner who
cannot clear the lower hurdle for asylum will necessarily fail to
meet the higher bar for withholding of removal.
For the reasons discussed, we deny the petition for
judicial review.
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