Alfredo Castro-Castaneda v. William P. Barr ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0336n.06
No. 18-3893
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jul 03, 2019
ALFREDO DAVID CASTRO-CASTANEDA, ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
)
ON PETITION FOR REVIEW
v. )
FROM THE UNITED STATES
)
BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, )
APPEALS
)
Respondent-Appellee. )
BEFORE: ROGERS, GRIFFIN, and NALBANDIAN, Circuit Judges.
ROGERS, Circuit Judge. Alfredo David Castro-Castaneda appeals the Board of
Immigration Appeals’ denial of his application for humanitarian asylum, arguing that the Board
erred in determining that he did not suffer past persecution based on a protected ground. Castro-
Castaneda claims that he experienced persecution in his native country of El Salvador on account
of his membership in a proposed particular social group—namely, “young Salvadoran men
abandoned by their parents.” However, the proposed group is too amorphous to satisfy the
“particularity” requirement for a particular social group, and Castro-Castaneda is accordingly not
eligible for humanitarian asylum.
Castro-Castaneda is a twenty-two-year-old native and citizen of El Salvador. Both of
Castro-Castaneda’s parents immigrated to the United States when he was a young child, and
Castro-Castaneda’s sisters raised him in El Salvador with the help of bi-monthly payments from
his father. For most of his life, Castro-Castaneda lived safely in El Salvador. However, that
No. 18-3893, Castro-Castaneda v. Barr
changed in 2014 and 2015, when Castro-Castaneda allegedly experienced multiple threats and
assaults at the hands of MS-13 gang members and police officers.
The first incident occurred near the end of 2014. A member of MS-13 approached Castro-
Castaneda and threatened to harm him if he continued to sport long hair and wear Nike tennis
shoes, because the shoes apparently signaled that Castro-Castaneda “belonged to [MS-13] or [ ]
was trying to belong to them.” Shortly afterwards, an MS-13 gang member known as “El Checo”
assaulted Castro-Castaneda “without provocation.” The encounter left Castro-Castaneda
“terrified,” but he did not report the attack to the police because he “wanted to forget what had
happened.” A couple months later, in March of 2015, Castro-Castaneda was assaulted again near
a government building. Although he was uncertain whether the attackers “were associated with
the MS-13 member who threatened [him] in the park,” Castro-Castaneda “was wearing [his] Nike
tennis shoes that day and at the time [he] thought that was why they were chasing [him].”
Castro-Castaneda’s problems continued in October 2015, when “four men dressed as
police officers” assaulted him and demanded information about El Checo and MS-13. The officers
“accused [Castro-Castaneda] of being a member of the MS-13” gang, and they beat him before
leaving him in the street. Castro-Castaneda attempted to file a report with El Salvador’s National
Civil Police (“PNC”). However, officers at the police station told him that he needed a parent to
be present before a report could be filed. Later that same month, a group of MS-13 members who
claimed to be associates of El Checo confronted Castro-Castaneda while he was with his girlfriend
in a park. They threatened to kill Castro-Castaneda “for having gone to the police,” and they
proceeded to follow through on the threat by beating him. Castro-Castaneda eventually escaped,
but the experience left him convinced that he had “no future” in El Salvador.
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In response to these incidents, Castro-Castaneda left El Salvador and entered the United
States in November 2015 without possessing a valid entry document. The Department of
Homeland Security (“DHS”) detained Castro-Castaneda, conducted a credible fear interview, and
later released him from custody. DHS issued a Notice to Appear (“NTA”) that charged Castro-
Castaneda with being “subject to removal from the United States” under “Section
212(a)(7)(A)(i)(1) of the Immigration and Nationality Act . . . as [an] immigrant who, at the time
of application for admission, [wa]s not in possession of a . . . valid entry document required by the
Act.” Castro-Castaneda conceded the charge of removability, and he applied for asylum,
withholding of removal, and protection under the Convention against Torture (“CAT”).
In his brief in support of his application for asylum, Castro-Castaneda argued that he had
been persecuted in El Salvador on account of his membership in two proposed particular social
groups: “young Salvadoran men abandoned by their parents”; and “young Salvadoran men
presumed to be gang members.” His application contained multiple articles discussing the
pervasive gang violence in El Salvador, along with other articles providing a historical background
on the country’s relatively recent civil war. In addition, Castro-Castaneda attached a psychosocial
evaluation from February of 2017, in which an expert concluded that Castro-Castaneda’s
“symptomatic distress levels are clearly defined as being in the clinical range” and diagnosed
Castro-Castaneda with “Other Specified Trauma- and Stressor-Related Disorder.”
An immigration judge granted Castro-Castaneda’s application for humanitarian asylum.
The immigration judge found that Castro-Castaneda “offered credible testimony,” and determined
that Castro-Castaneda “did suffer persecution in El Salvador” in light of his multiple beatings and
the “lingering emotional injury” that resulted. With respect to the question of whether Castro-
Castaneda “suffered past persecution on account of a protected ground,” the immigration judge
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determined that “young Salvadoran men presumed to be gang members” do not “constitute a
cognizable particular social group.” However, the judge concluded that the other proposed
group—“young Salvadoran men abandoned by their parents”—did qualify as a particular social
group. Based on this determination, the immigration judge granted Castro-Castaneda
humanitarian asylum pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(B), while denying Castro-
Castaneda’s applications for withholding of removal and for protection under the CAT.
The Government appealed the immigration judge’s decision, and the Board of Immigration
Appeals reversed. The Board determined that the proposed particular social group of “young
Salvadoran men abandoned by their parents” is “amorphous and does not establish an outer limit
that provides a clear benchmark for determining who falls within the group.” Furthermore, the
Board concluded that the proposed group lacked the social distinction that is required to qualify as
a particular social group under the INA. For these reasons, the Board reversed the immigration
judge’s grant of humanitarian asylum. Castro-Castaneda now appeals, arguing that he qualifies
for humanitarian asylum because the proposed particular social group of “young Salvadoran men
abandoned by their parents” is both particular and socially distinct.
Castro-Castaneda’s proposed group is too amorphous to constitute a particular social
group, and he is not eligible for humanitarian asylum for that reason. Humanitarian asylum is
warranted in the “rare instances” in which “an applicant . . . has suffered under atrocious forms of
persecution, even where there is little likelihood of future persecution.” Ben Hamida v. Gonzales,
478 F.3d 734, 740 (6th Cir. 2007) (internal quotation marks omitted). Such an asylum claim
accordingly requires the applicant to “demonstrate[] past persecution and [prove] that he or she is
a ‘refugee’” under the Immigration and Nationality Act (“INA”). Matter of L-S-, 25 I. & N. Dec.
705, 710 (BIA 2012). An individual qualifies as a refugee when he “is unable or unwilling to
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return to [his] home country due to ‘persecution or a well-founded fear of persecution on account
of[, among other things,] membership in a particular social group.’” Kalaj v. Holder, 319 F. App’x
374, 376 (6th Cir. 2009) (quoting 8 U.S.C. § 1101(a)(42)(A)).
To constitute a particular social group, a proposed group must satisfy a “particularity”
requirement, see Zaldana Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir. 2015), and Castro-
Castaneda’s proposed group of “young Salvadoran men abandoned by their parents” does not do
so. The proposed group contains an ambiguous term, which makes it difficult to define clearly
who belongs to the group. As the Government argues, “abandon” has multiple meanings,
including: “[t]o withdraw one’s support or help from, esp. despite a duty, allegiance, or
responsibility”; “[t]o give up by leaving or ceasing to operate or inhabit, esp. as a result of
impending threat”; and “[t]o surrender one’s claim or right to.” Webster’s II New College
Dictionary (2001). Castro-Castaneda does not explain which of these meanings applies, nor does
he clarify whether parents must leave for a certain period of time before their young male children
become members of the group. The proposed group could accordingly cover young Salvadoran
men in a variety of situations, including young male orphans, young men who were neglected by
their parents for several months, and young men who were adopted and raised by other families.
For this reason, the proposed group is too amorphous to satisfy the “particularity”
requirement of a particular social group. “Particularity refers to ‘whether the proposed group can
accurately be described in a manner sufficiently distinct that the group would be recognized, in the
society in question, as a discrete class of persons.’” Umana-Ramos v. Holder, 724 F.3d 667, 671
(6th Cir. 2013) (quoting Al-Ghorbani v. Holder, 585 F.3d 980, 994 (6th Cir. 2009)). Satisfying
that standard requires a particular social group to “be defined by characteristics that provide a clear
benchmark for determining who falls within the group.” Matter of M-E-V-G-, 26 I. & N. Dec.
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227, 239 (BIA 2014). To do so, “[i]t is critical that the terms used to describe the group have
commonly accepted definitions in the society of which the group is a part.” Id. By these standards,
Castro-Castaneda’s proposed group is not clearly defined and fails to constitute a particular social
group. Its reliance on the ambiguous term “abandoned” means that a wide variety of young
Salvadoran men could claim membership in the group. Such a possibility is at odds with the
particularity required of a particular social group, which precludes a proposed group from being
“amorphous, overbroad, diffuse, or subjective.” Id.
This determination is consistent with prior decisions from this circuit in which we rejected
comparably amorphous proposed particular social groups for a lack of particularity. For example,
in Orellana v. Sessions, 722 F. App’x 443 (6th Cir. 2018), we determined that the proposed
particular social group of “children who are unable to leave their families” did not satisfy the
particularity requirement, in part because the petitioner failed to explain the meaning of a term on
which the definition of the proposed group relied. Id. at 449. We similarly rejected the proposed
particular social group of “young Salvadorans who ha[ve] been threatened because they refused to
join the MS gang” as “not cognizable under the INA” due to the group’s lack of “sufficient
particularity.” Umana-Ramos, 724 F.3d at 673–74. In Kante v. Holder, 634 F.3d 321 (6th Cir.
2011), we determined that the petitioner’s proposed particular social group of “women subjected
to rape as a method of government control” was not particular in light of the group’s “generalized
and far-reaching nature.” Id. at 327. Other insufficiently particular proposed particular social
groups include “Guatemalan children under fourteen,” see Gomez-Guzman v. Holder, 485 F.
App’x 64, 67 (6th Cir. 2012), “young, impoverished, single, uneducated women who risk
kidnapping and forced prostitution,” see Kalaj, 319 F. App’x at 376, and “young (or those who
appear to be young), attractive Albanian women who are forced into prostitution,” see Reshpja v.
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Gonzales, 420 F.3d 551, 555 (6th Cir. 2005). Each of these proposed groups shares the very quality
that precludes Castro-Castaneda’s proposed group from satisfying the particularity requirement: a
lack of clear definition that would permit the group to encompass a wide-ranging number of people
from a variety of circumstances.
It is true that some of the proposed groups from our prior decisions are distinguishable
from the proposed group in this case, inasmuch as they were circularly defined in terms of the
persecution suffered by the group’s members. See, e.g., Kante, 634 F.3d at 327; Kalaj, 319 F.
App’x at 376–77. However, that distinction does not undermine the key point of similarity. The
proposed groups from our prior decisions lacked the clear definition and discreteness required of
a particular social group, and they were rejected for that reason. Castro-Castaneda’s proposed
group of “young Salvadoran men abandoned by their parents” contains the same flaw, and it
accordingly does not qualify as a particular social group.
Because the proposed group’s failure to satisfy the “particularity” requirement is
dispositive of this appeal, we need not address whether the group satisfies the additional “social
distinction” requirement for a particular social group. Castro-Castaneda has not shown that he
suffered past persecution on account of membership in a particular social group, and he is therefore
ineligible for humanitarian asylum.
We deny the petition for review.
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