Alex Poroj-Mejia v. Eric Holder, Jr , 397 F. App'x 234 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 6, 2010
Decided October 18, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 10-1425
ALEX POROJ-MEJIA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v.
ERIC H. HOLDER, JR., Attorney No. A098-967-868
General of the United States,
Respondent.
ORDER
Poroj-Mejia brought this petition to challenge the denial of his application for
withholding of removal. Poroj-Mejia entered the United States illegally from his native
Guatemala around 2000. In 2006, after police arrested him during a traffic encounter, the
government commenced removal proceedings. Before an Immigration Judge (IJ), Poroj-
Mejia requested asylum under 8 U.S.C. § 1158(a)(1) and withholding of removal under 8
U.S.C. § 1231(b)(3). The IJ found Poroj-Mejia ineligible for asylum because he filed his
application more than one year after entering the United States. See § 1158(a)(2)(B). Poroj-
Mejia does not contest his ineligibility for asylum but continues to pursue his application
for withholding of removal.
No. 10-1425 Page 2
At his removal hearing, Poroj-Mejia asserted that if he is sent back to Guatemala, he
would be persecuted by the Mara 18, a violent criminal gang. He explained that in 1994,
when he was 8, Mara 18 members entered his house and threatened him and his brother
with a knife. Six years later, the Mara 18 sent his family a letter demanding money and
threatened to kill them if the gang’s demands were not met. After this incident, Poroj-
Mejia’s mother complained to the Guatemalan police about the Mara 18. In response, the
police visited the family’s home, spoke to the mother for an hour, and eventually filed
charges. They also advised the family to get a pistol and two dogs for protection.
Immediately after the police visit, Poroj-Mejia and his mother fled to the United States.
Poroj-Mejia told the IJ that the Mara 18 will persecute him because he is a member of
a “social group” that he defines as members of families who sought police assistance
against the Mara 18. He believes that the gang never forgets anyone and makes good on its
vendettas. As an example, he recounts that about five years after he entered the United
States, his first cousin was deported to Guatemala where, according to unsubstantiated
assertions of some locals, he was immediately killed by the Mara 18. Poroj-Mejia did not
present any other evidence that, in general, the Mara 18 more frequently targets people
from families who complain to police than it hits on people in the general population. The
State Department’s 2007 Country Report finds that Guatemala generally experiences
“widespread” societal violence and killings.
The IJ denied Poroj-Mejia’s application for withholding of removal. First, the IJ
explained that Poroj-Mejia’s proposed social group did not qualify for protection under
§ 1231(b)(3)(A). The IJ also found that Poroj-Mejia presented insufficient evidence that the
Mara 18 target his proposed group or that Guatemalan authorities were unable or
unwilling to try to control the Mara 18. The Board of Immigration Appeals dismissed Poroj-
Mejia’s appeal. Like the IJ, the Board concluded that Poroj-Mejia was not part of a
qualifying social group and further that the evidence did not support a finding that any
threatened harm was on account of his membership in a social group.
Before reaching the merits on review, we consider a threshold question of venue
that the Board addressed. Citing a memorandum from the Office of the Chief Immigration
Judge and proposed regulations, see 72 Fed. Reg. 14,494, 14,497 (March 28, 2007), the Board
concluded that the location where the applicant is ordered to appear governs venue in
removal proceedings. The Notice to Appear ordered Poroj-Mejia to come to a hearing
room in Kansas City, Missouri. Hence, the Board concluded, venue lay in the Eighth
Circuit—even though the IJ was located in Chicago when conducting the proceeding via
teleconference with Poroj-Mejia in Missouri.
We, and both parties to this appeal, disagree with the Board’s findings on venue.
No. 10-1425 Page 3
The Immigration and Naturalization Act states: “A petition for review shall be filed with
the court of appeals for the judicial circuit in which the immigration judge completed the
proceedings.” 8 U.S.C. § 1252(b)(2); Ramos v. Ashcroft, 371 F.3d 948, 949 (7th Cir. 2004). An
internal memorandum and a proposed regulation do not override the statute. See Clay v.
Johnson, 264 F.3d 744, 750 (7th Cir. 2001) (agency’s proposed regulations not entitled to
deference); United States v. Wisconsin Power & Light Co., 38 F.3d 329, 334 (7th Cir. 1994)
(memoranda of the IRS’ General Counsel have no precedential value); Environmental
Defense Fund, Inc. v. City of Chicago, 985 F.2d 303, 304 (7th Cir. 1993) (EPA memorandum
cannot override statute). Because an IJ in Chicago conducted Poroj-Mejia’s removal
proceeding, venue lies in this circuit. Accordingly, we proceed to the merits.
On the merits, we review the Board’s legal conclusions de novo and its factual
determinations for substantial evidence. Krasilych v. Holder, 583 F.3d 962, 966 (7th Cir.
2009). To qualify for withholding of removal, Poroj-Mejia must establish a clear probability
of persecution because of his race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). To repeat, Poroj-Mejia maintains that
the Mara 18 will persecute him on account of his membership in the social group
comprised of members of families who have sought police protection from the gang.
The Immigration and Naturalization Act does not define “social group.” We have
agreed with the Board’s definition that a “social group” is one whose members share
“common characteristics that members of the group either cannot change, or should not be
required to change because such characteristics are fundamental to their individual
identities.” Ramos v. Holder, 589 F.3d 426, 428 (7th Cir. 2009). This common characteristic
may be some shared past experience. See Sepulveda v. Gonzales, 464 F.3d 770, 771 (7th Cir.
2006).
Poroj-Mejia contends that his social group shares the past experience of having
sought police protection against the Mara 18. Poroj-Mejia likens his group to those in cases
where we found that past associations created a “social group.” See Ramos, 589 F.3d at 428-
31 (former members of a violent street gang); Sepulveda, 464 F.3d at 772 (former employees
of Colombia Attorney General’s Office). But in these and other cases, the social groups
exist independently of any relationship to the persecutor. See Ramos, 589 F.3d at 428-31;
Gatimi, 578 F.3d at 613 (former members of the Kikuyu tribe, a militant political group that
dominated Kenyan politics); Sepulveda, 464 F.3d at 772. Poroj-Mejia’s proposed group has
no existence independent of the Mara 18. Where a proposed group is defined only by the
characteristic that it is persecuted, it does not qualify as a “social group.” See Castillo-Arias
v. U.S. Atty. Gen., 446 F.3d 1190, 1193-94 (11th Cir. 2006) (referencing UN’s definition of
“particular social group”); Castellano-Chacon v. INS, 341 F.3d 533, 548 (6th Cir. 2003) (same).
No. 10-1425 Page 4
Likewise, a social group does not exist when its members face dangers in retaliation for
actions they took against alleged persecutors. See Jun Ying Wang v. Gonzales, 445 F.3d 993,
998 (7th Cir. 2006) (cooperating with U.S. government officials against foreign persecutors);
Pavlyk v. Gonzales, 469 F.3d 1082, 1088-89 (7th Cir. 2006) (former Ukranian prosecutor
persecuted because he exposed corruption of persecutors, not because he was a former
prosecutor). Although the threat Poroj-Mejia fears is serious, the Mara 18 threatens him as
a member of his “group” only because the group’s members have opposed the Mara 18.
The group thus faces retribution because of a personal dispute in opposing the Mara 18,
rather than because of a protected trait. See Tariq v. Keisler, 505 F.3d 650, 654 (7th Cir. 2007)
(personal disputes cannot be the basis for withholding of removal); see also Marquez v. INS,
105 F.3d 374, 380 (7th Cir. 1997) (petitioner’s dispute with Filipino government concerning
seizure of his private property could not support asylum).
Even if Poroj-Mejia were a member of a protected social group, we would deny his
petition for review on the alternative basis that the Board offered: Substantial evidence
supports the Board’s finding that any risks Poroj-Mejia faces are based on the conditions of
civil unrest and criminal violence affecting the entire populace, rather than his group
particularly. See Pavlyk, 469 F.3d at 1088-89. The State Department’s Country Report
reflects that broad social violence afflicts the entire Guatemalan population. In fact, the
record suggests that the Mara 18 targeted Poroj-Mejia and his family twice before anyone in
his family complained to the police about the gang. Although, Poroj-Mejia testified that the
Mara 18 killed his first cousin after he was deported to Guatemala, the IJ did not find this
testimony credible, based as it was on unrecorded accounts from unnamed sources. Given
the highly deferential standard for reviewing an IJ’s credibility finding, Poroj-Meija offers
no valid reason to disturb it. See Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir. 2006); Diallo
v. Ashcroft, 381 F.3d 687, 698 (7th Cir. 2004). Thus, the Board’s overall conclusion is sound:
Poroj-Mejia has not established that the Mara 18 generally targets members of his group
more than civilians in the general population.
Regrettably, the Mara 18 may be a formidable criminal element in Guatemala. But
after the one incident where his mother called the police, Guatemalan authorities
responded by visiting the family at their home, gathering information, and filing charges
against the suspects. Under these circumstances, Poroj-Meija has not established a basis for
withholding of removal. See Ingmantoro v. Mukasey, 550 F.3d 646, 650 (7th Cir. 2008); Hasalla
v. Ashcroft, 367 F.3d 799, 804 (8th Cir. 2004).
Poroj-Mejia’s petition for review is DENIED.