Rojas-Perez v. Holder, Jr. , 699 F.3d 74 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1047
ERASMO ROJAS-PÉREZ,
ANGÉLICA GARCÍA-ÁNGELES,
Petitioners,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Howard, and Thompson,
Circuit Judges.
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.
November 5, 2012
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
1
Section 212(a)(6)(A)(i) of the INA, codified at 8 U.S.C.
§ 1182(a)(6)(A)(i), renders "alien[s] present in the United States
without being admitted or paroled" inadmissible to the United
States. Section 212(a)(7)(A)(i)(I) of the INA, codified at 8
U.S.C. § 1182(a)(7)(A)(i)(I), prescribes the same for aliens who
lack valid identification at the time they file an application for
admission into the United States.
-2-
§ 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
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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"
-4-
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
2
Consistent with Rojas's admission that he was never harmed while
he resided in Mexico, the IJ found that the petitioners had not
suffered past persecution.
-5-
repatriated. INS v. Stevic, 467 U.S. 407, 413 (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
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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 F. App'x 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
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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
3
Although Rojas claims that the BIA incorrectly focused on the
"persecution based on wealth" logic at the expense of paying
attention to the importance of the specific harm that the
petitioners allege could befall them in Mexico -- i.e., the
kidnapping and ransoming of their son, a U.S. citizen -- we do not
find that to be the case. To the extent that Rojas and García
state that they are fearful that their son would be kidnapped if
the family returns to Mexico, they admit that any such fear follows
from their belief that they would be perceived by others as wealthy
once there, thus making their son an attractive target for
abduction. All this means is that the possibility that their son
would be kidnapped by criminal gangs or rogue police officers is
the kind of "persecution" that they fear they would suffer once in
Mexico. But as our above discussion and precedent suggest,
"hostile treatment based on economic considerations is not
persecution." López-Castro, 577 F.3d at 54.
-8-
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 "social visibility" as one
of the requisite factors that would define a particular and legally
cognizable social group under BIA precedent. This requirement,
which the BIA incorporated into its analysis of what comprises a
"particular social group" in 2006, see In re C-A-, 23 I. & N. Dec.
957 (BIA 2006), demands that the "common, immutable characteristic"
that an asserted group shares must also "make the group []
generally recognizable in the community," Faye v. Holder, 580 F.3d
37, 41 (1st Cir. 2009).
The social visibility requirement undergirds the cases on
which the agency relied in denying the petitioners' applications
for withholding. Both this court and the BIA have generally
reasoned that petitioners claiming that they belong to a particular
social group comprised of persons who are either wealthy or would
be perceived as such upon their return to a country where crime is
endemic do not meet the social visibility requirement. Because
crime affects all who reside in those countries, the logic goes,
wealth (or the perception of wealth) would not necessarily single
out a person for victimization. See Sicajú-Díaz, 663 F.3d at 4("In a poorly policed country, rich and poor are all prey to
criminals who care about nothing more than taking it for
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themselves."); In re A-M-E & J-G-U-, 24 I. & N. Dec. at 74
("[T]here is little in the background evidence of record to
indicate that wealthy Guatemalans would be recognized as a group
that is at greater risk of crime in general or of extortion or
robbery in particular.").
The reasoning behind the BIA's social visibility
requirement has come in for some criticism of late, and Rojas
points to varied authority in calling this court to recognize that
the requirement is both unwarranted and unnecessary. The sharpest
critique of the social visibility requirement that Rojas points to
is the Seventh Circuit's decision in Gatimi v. Holder, 578 F.3d 611(7th Cir. 2009), in which that court invalidated the BIA's social
visibility requirement in the asylum context. The Gatimi court
acknowledged the above-stated proposition that the BIA's definition
of the statutory phrase "particular social group" is entitled to
deference, see id. at 615, but nonetheless explained that, in its
estimation, the BIA's application of the social visibility
requirement was both unreasonable and inconsistent. First, the
Gatimi court stated that the social visibility requirement "ma[de]
no sense," adding:
nor has the [BIA] attempted . . . to explain
the reasoning behind the criterion of social
visibility. Women who have not yet undergone
female genital mutilation in tribes that
practice it do not look different from anyone
else. A homosexual in a homophobic society
will pass as heterosexual. If you are a
member of a group that has been targeted for
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assassination or torture or some other mode of
persecution, you will take pains to avoid
being socially visible; and to the extent that
members of the target group are successful in
remaining invisible, they will not be "seen"
by other people in the society "as a segment
of the population."
Id. Further advancing its reasoning, the Gatimi court noted that
it found the deference that is commonly due to the BIA's definition
of "particular social group" unwarranted in the context of the
social visibility requirement. Here, the Seventh Circuit explained
that it considered the BIA to have been "inconsistent" in applying
the requirement, "[finding] groups to be 'particular social groups'
without reference to social visibility . . . as well as,
in . . . other cases, refusing to classify socially invisible
groups as particular social groups but without repudiating the
other line of cases." Id. at 615-16. The court thus found that,
regarding social visibility as a criterion for determining a
"particular social group,"
the Board has been inconsistent rather than
silent. . . . When an administrative agency's
decisions are inconsistent, a court cannot
pick one of the inconsistent lines and defer
to that one, unless only one is within the
scope of the agency's discretion to interpret
the statutes it enforces or to make policy as
Congress's delegate. Such picking and
choosing would condone arbitrariness and usurp
the agency's responsibilities.
Id. at 615-16 (citations omitted).
Only one of the other federal circuit courts of appeal
has endorsed the Gatimi court's reasoning. In its judgment in
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Valdiviezo-Galdamez v. Att'y Gen. of the United States, 663 F.3d
582 (3d Cir. 2011),4 the Third Circuit voiced similar concerns
regarding what it perceived as a lack of consistency in the BIA's
application of its own requirement. For example, the Valdiviezo-
Galdamez court noted that the BIA had, since first interpreting the
statutory phrase "particular social group" in 1985, see In re
Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds
by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), "recognized a
number of groups as 'particular social groups' where there was no
indication that the group's members possessed 'characteristics that
were highly visible and recognizable by others in the country in
question' or possessed characteristics that were otherwise
'socially visible' or recognizable," Valdiviezo-Galdamez, 663 F.3d
at 604. By way of example, the Valdiviezo-Galdamez court added:
[T]he BIA has found each of the following
groups to constitute a "particular social
group" for purposes of refugee status: women
who are opposed to female genital mutilation
(Matter of Kasinga), homosexuals required to
register in Cuba, (Matter of Toboso-Alfonso),
and former members of the El Salvador national
police (Matter of Fuentes). Yet, neither
anything in the Board's opinions in those
cases nor a general understanding of any of
those groups, suggests that the members of the
groups are "socially visible." The members of
each of these groups have characteristics
which are completely internal to the
4
Rojas does not rely upon Valdiviezo-Galdamez in his briefing
before this Court. The Valdiviezo-Galdamez decision was issued on
November 8, 2011, one day after his brief was filed in the instant
matter.
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individual and cannot be observed or known by
other members of the society in question (or
even other members of the group) unless and
until the individual member chooses to make
that characteristic known.
Id. Based on the fact that the above-cited particular social
groups would not be cognizable if the BIA were to impose the
"social visibility" requirement today, the court found the
requirement inconsistent with past BIA decisions and concluded that
"it is an unreasonable addition to the requirements for
establishing refugee status where that status turns upon
persecution on account of membership in a particular social group."
Id. The court went further in finding that the BIA's particularity
requirement was inconsistent with prior decisions, stating that it
was "hard-pressed to discern any difference between the requirement
of 'particularity' and the discredited requirement of 'social
visibility.'" Id. at 608.
While this Court recognizes the cogency and
persuasiveness of both the reasoning and the outcomes of the
Seventh and Third Circuits' decisions, it is bound by its own
precedent regarding the reasonableness of the BIA's social
visibility requirement.5 See Beltrand-Alas v. Holder, No. 11-1419,
5
The Court rejects, however, the concurrence's statement that we
have "on multiple occasions addressed the viability of the social
visibility criterion, and rejected the very arguments by which the
majority has been persuaded here." This is not the case. The
Court has only addressed the arguments of inconsistency as stated
in the Gatimi opinion in Beltrand-Alas. In its prior decisions,
the Court in no way referenced arguments challenging as
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2012 U.S. App. LEXIS 17378, at * 9 (1st Cir. Aug. 17, 2012). A
panel decision may only be overturned where it is either undermined
by "subsequently announced controlling authority" or in the rare
instance where "authority that postdates the original decision,
although not directly controlling, nevertheless offers a sound
reason for believing that the former panel, in light of fresh
developments, would change its collective mind." Mongeau v. City
of Marlborough, 492 F.3d 14, 18-19 (1st Cir. 2007)(quoting Williams
v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)). Since no
controlling authority has been announced subsequent to this Court's
decision in Beltrand-Alas, and since this Court just reviewed in
that decision the same arguments Petitioner presents here regarding
the inconsistency and unreasonableness of the BIA's "social
inconsistent and arbitrary the BIA's application of the social
visibility requirement. See, e.g., Faye, 580 F.3d at 41 (only
stating generally that the Court "show[s] some deference to the
BIA's interpretation of the term ['social group']" without
evaluating the reasonableness per se of its extrapolation from the
immutability requirement that a characteristic be "socially
visible"); Méndez-Barrera, 602 F.3d at 25-26 (in stating that "we
have found th[e] elaboration [of the social visibility requirement]
to be not only reasonable but also within the BIA's purview,"
conflating the deference granted to the BIA's interpretations of
"social group" in prior decisions (Scatambuli and Faye) with the
Court's granting of deference to the BIA's delineation of the
social visibility requirement). In fact, the Court has even avoided
addressing head on the issue of a tension between the immutability
requirement and the social visibility requirement. See
Scatambuli, 558 F.3d at 60 ("it is not necessary in this case for
us to explore whether there is any tension between looking to the
visibility of a particular social group and the requirement that
members of a group share an immutable or fundamental
characteristic.").
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visibility" requirement, the only fresh development for the Court
to consider is the further divergence in the circuit courts
resulting from the Third Circuit decision in Valdiviezo-Galdamez.
Since that decision is based on similar reasoning as the Seventh
Circuit's decision, it is difficult to categorize the Third
Circuit's iteration as a fresh development the panel had not
already considered, and that would be sufficient to change its
collective mind.
The Court nevertheless believes that the requirement of
social visibility at the very least merits additional examination
by and clarification from the BIA. It is particularly unclear how
courts are to square the BIA's more recent statements regarding the
social visibility requirement with its former decisions, which
allow as cognizable those characteristics in particular social
groups that are only visible when made known by individual members,
cf. In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996) and In re
Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (BIA 1990). Also, if
an "immutable" characteristic is one that an individual possesses
but either cannot change or should not be required to change, it is
not clear why an individual with a hidden characteristic need make
that characteristic known for it to be deemed immutable. See,
e.g., In re Acosta, 19 I. & N. Dec. at 49-50.
The concurrence states that criticisms of the BIA's
application of the social visibility requirement need not be
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entertained in this case. We wholeheartedly disagree for two
reasons. First, the criticisms were explicitly raised by the
Petitioner in his Gatimi-based challenges to the social visibility
requirement, and we find it appropriate to address those challenges
on that basis and on the basis of the growing circuit split on the
issue. Second, as the Gatimi court has stated, "[w]hen an
administrative agency's decisions are inconsistent, a court cannot
pick one of the inconsistent lines and defer to that one . . . .
[s]uch picking and choosing would condone arbitrariness and usurp
the agency's responsibilities." Gatimi, 578 F.3d at 616 (citations
omitted).
This Court's own "application of the social visibility
test," however reasonable and broad, is not the target of
Petitioner's challenge. Rather, Petitioner challenges, as he may
after Chevron, the BIA's inconsistently applied interpretation of
the immutability requirement as encompassing a socially visible
characteristic to which the Court has granted deference. It is
therefore unavailing that this Court has adopted a more or less
demanding approach to this or any other term in the INA. See,
e.g., Negusie v. Holder, 555 U.S. 511, 523 (2009) ("ambiguities in
statutes within an agency's jurisdiction to administer are
delegations of authority to the agency to fill the statutory gap in
reasonable fashion. Filling these gaps . . . involves difficult
policy choices that agencies are better equipped to make than
-16-
courts.") (citation and quotation marks omitted); Nat'l Cable &
Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 985
(2005) ("Before a judicial construction of a statute, whether
contained in a precedent or not, may trump an agency's the court
must hold that the statute unambiguously requires the court's
construction."). The Court cannot be concerned about the fact that
its jurisprudence, as the concurrence states, "does not necessarily
exclude groups whose members might have some measure of success in
hiding their status in an attempt to escape persecution." (Emphasis
added). Rather, the Court is and should be solely concerned with
whether the BIA's social visibility requirement so excludes such
groups in its inconsistent interpretation and application of the
INA.6 See, e.g., Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.
837, 843 (1984) ("If . . . the court determines Congress has not
directly addressed the precise question at issue, the court does
6
The concurrence's citation to the Tenth Circuit's decision in
Rivera-Barrientos v. Holder fails to address this concern. See
Rivera-Barrientos, 666 F.3d 641 (10th Cir. 2012). The concurrence
quotes the court's statement that, "social visibility requires that
the relevant trait be potentially identifiable by members of the
community, either because it is evident or because the information
defining the characteristic is publically accessible." See id. at
652. This statement by the Tenth Circuit is not helpful here as it
fails to explain how homosexuals or females who fear genital
mutilation, groups which have been accorded protection by the BIA,
have characteristics that are either "evident" or "publicly
accessible." The Tenth Circuit appears to further solidify a
tendency by the circuit courts to establish their own standards of
what the social visibility requirement consists of, even if that
standard conflicts with the BIA's prior rulings on protected social
groups.
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not simply impose its own construction on the statute, as would be
necessary in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with respect to a
specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.").
On this basis, the Court cannot share the concurrence's
concern that our discussion of this issue may encourage "misplaced
challenges to the BIA's social visibility requirement." First, it
is both the duty and mandate of this Court to review the BIA's
interpretation and application of the INA over time precisely to
evaluate whether its rule is arbitrary or capricious. See, e.g.,
Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct.
704, 711-12 (2011). Second, while it is true and this Court has
acknowledged that we are bound by our own precedent, it is not our
task to operate blindly and unscientifically in the face of
legitimate challenges to either our prior rulings or the
adjudications of an administrative agency tasked with interpreting
its organic statute.
III. Conclusion
In any event, since this Court does not write on a clean
slate, and since the BIA's determinations were based on substantial
evidence in the record before it, the Court must deny Rojas-Pérez's
petition for review.
-- Concurring opinion follows --
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HOWARD, Circuit Judge (concurring). While I concur in
the judgment, I do not endorse the court's critiques of the social
visibility test, which we have recently and unreservedly rejected,
see, e.g., Beltrand-Alas v. Holder, 689 F.3d 90, 93 (1st Cir.
2012). Nor can I discern any reason to entertain such criticisms
anew, given that they have no impact on the outcome in this case.
Thus, I decline to join the majority's dicta on this nonessential
matter.
I.
The validity of the BIA's social visibility test is not
an issue of first impression in this circuit. We have on multiple
occasions addressed the viability of the social visibility
criterion, and rejected the very arguments by which the majority
has been persuaded here. See, e.g., id. ("[The petitioner] argues
that . . . the BIA's use of 'social visibility' in the social group
analysis is an arbitrary and capricious interpretation of the
statute . . . [but] this court has held that the social visibility
criterion is reasonable because it represents an elaboration of how
the requirement operates and is an interpretation of an ambiguous
statutory term.") (internal quotation marks omitted); Mendez-
Barrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010) ("[T]he
petitioner asserts that we should ignore [the BIA's delineation of
the term 'social group'] because . . . the BIA departed from
precedent, gutted its immutable characteristic test, and
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substituted a new (and unprecedented) social visibility test. This
assertion contains more cry than wool . . . . The social
visibility criterion . . . represents an elaboration of how [the
immutable characteristic] requirement operates. We have found this
elaboration to be not only reasonable but also within the BIA's
purview."); 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").
We are not alone in this view. A multitude of other
circuits have similarly concluded that the BIA's interpretation of
"social visibility" is reasonable and therefore entitled to Chevron
deference. See Orellana-Monson v. Holder, 685 F.3d 511, 519-20
(5th Cir. 2012); Rivera-Barrientos v. Holder, 666 F.3d 641, 648
(10th Cir. 2012); Al-Ghorbani v. Holder, 585 F.3d 980, 991, 994
(6th Cir. 2009); Ramos-Lopez v. Holder, 563 F.3d 855, 858-62 (9th
Cir. 2009); Davila-Mejia v. Mukasey, 531 F.3d 624, 628-29 (8th Cir.
2008); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007)
(per curiam); Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190,
1197-98 (11th Cir. 2006).
Only the Third and Seventh Circuits have expressly
declined to apply the BIA's framework. See Valdiviezo-Galdamez v.
Att'y Gen., 663 F.3d 582, 603-09 (3d Cir. 2011); Gatimi v. Holder,
578 F.3d 611, 615-17 (7th Cir. 2009). The majority aptly sets
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forth the reasoning of those courts, and I need not belabor the
point here. At bottom, they have narrowly construed "social
visibility," as applied by the BIA, to mean that "you can be a
member of a particular social group only if a complete stranger
could identify you as a member if he encountered you in the street,
because of your appearance, gait, speech pattern, behavior or other
discernible characteristic." Ramos v. Holder, 589 F.3d 426, 430
(7th Cir. 2009); see also Valdiviezo-Galdamez, 663 F.3d at 603-09.
Consequently, they rejected the test after concluding that this
"immediate identifiability" requirement was inconsistent with a
line of unrepudiated BIA cases finding social groups based on
physical traits that are generally "invisible." See id.
I see no need to interpret social visibility so narrowly.
The seminal BIA decision establishing the test, Matter of C-A-,
recognized numerous traits as socially visible that are not
immediately apparent to the naked eye, including opposition to
genital mutilation, kinship ties, and prior employment as a police
officer. See 23 I. & N. Dec. 951, 959-61 (BIA 2006). As the Tenth
Circuit has succinctly explained,
if opposition to genital mutilation, kinship
ties, and prior employment as a police officer
are socially visible, social visibility cannot
be read literally. Rather, social visibility
requires that the relevant trait be
potentially identifiable by members of the
community, either because it is evident or
because the information defining the
characteristic is publically accessible.
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Rivera-Barrientos, 658 F.3d at 652.
Our application of the social visibility test comports
with that understanding: social visibility does not demand that
the relevant trait be externally visible or otherwise immediately
identifiable. We have held that to satisfy the social visibility
test, a group need only "be generally recognized in the community
as . . . cohesive." Mendez-Barrera, 602 F.3d at 26. The term
"recognized" should not be conflated with the physical visibility
of the targeted immutable characteristic; it is not an "eyeball"
test. See id. Thus, it matters not whether, as stated in
Valdiviezo-Galdamez, the trait is "completely internal to the
individual and cannot be observed or known by other members of the
society in question . . . unless and until the individual member
chooses to make that characteristic known," 663 F.3d at 604;
rather, we consider only whether, if that characteristic were
known, those who exhibit it -- regardless of its visibility to the
casual passerby -- comprise a group that would be identified by
their society as sufficiently cohesive. See Mendez-Barrera, 602
F.3d at 26 ("The relevant inquiry is whether the social group is
visible in the society, not whether the alien herself is visible to
the alleged persecutors."); Faye v. Holder, 580 F.3d 37, 41-42 (1st
Cir. 2009) (finding that the petitioner's proposed social group of
"adulterers who had a child out of wedlock" was not socially
visible, not due to the absence of some externally visible trait,
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but because the petitioner "did not explain how Senegalese society
generally would perceive her and women in a similar position").
Accordingly, the social visibility requirement -- as both the BIA
and this circuit have applied it -- does not necessarily exclude
groups whose members might have some measure of success in hiding
their status in an attempt to escape persecution.7
II.
Even assuming for argument's sake that the social
visibility test has been inconsistently or unreasonably interpreted
by the BIA, this petitioner's claim fails. The social group that
he proposes -- "persons who have lengthy residence in the United
States and are parents of a United States citizen" -- is merely a
particularized description of "perceived wealth," a trait which the
BIA and several courts of appeals, including the Third and Seventh
Circuits, rejected as an immutable characteristic long before the
social visibility test was ever formulated. See, e.g., Tapiero De
7
There is a class of cases in which the conduct of a petitioner,
due to its clandestine or confidential nature, was deemed
insufficiently visible. See, e.g., Scatambuli v. Holder, 558 F.3d
53, 60 (1st Cir. 2009) (rejecting "informants" as a particular
social group because "the universe of those who knew of the
petitioners' identity as informants was quite small; the
petitioners were not particularly visible"); Matter of C-A-, 23 I.
& N. Dec. 951, 960 (BIA 2006) (rejecting "confidential informants"
as a particular social group on the basis that members are
"generally out of the public view"). It makes sense that such
individuals, who act in secrecy with no definable common group goal
would not be thought to be members of a sufficiently cohesive
group. Those cases do not stand for the proposition that an
immutable characteristic must be externally or immediately
ascertainable to meet the social visibility standard.
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Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); Jimenez-
Mora v. Ashcroft, 86 Fed. App'x. 527, 531 (3d Cir. 2004); Matter of
S-V-, 22 I. & N. Dec. 1306, 1310 (BIA 2000) (holding that actions
motivated by "perceived wealth" were insufficient, without more, to
support a finding of persecution based on membership in a
particular social group), overruled on other grounds by Zheng v.
Ashcroft, 332 F.3d 1186 (9th Cir. 2003); Matter of V-T-S-, 21 I. &
N. Dec. 792, 799 (BIA 1997) (same). In other words, removing the
social visibility test from the equation would not salvage the
petitioner's case, obviating any need to reconsider this circuit's
well-settled precedent.
III.
In the end, my concern is that the dicta in the majority
opinion may encourage what I believe will be misplaced challenges
to the BIA's social visibility requirement. We have repeatedly
found that requirement to be sound, and the majority's discussion
is not a reflection, institutionally, of the view of this court.
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