Oscar Granados Gaitan v. Eric H. Holder, Jr. , 671 F.3d 678 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1724
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Oscar Alexander Granados Gaitan, *
*
Petitioner, *
*
v. * Petition for Review of an Order of
* the Board of Immigration Appeals.
Eric H. Holder, Jr., Attorney *
General of the United States, *
*
Respondent, *
*
*
United Nations High Commissioner *
for Refugees, *
*
Amicus Curiae. *
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Submitted: May 12, 2011
Filed: March 1, 2012
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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Oscar Alexander Granados Gaitan, a native and citizen of El Salvador, entered
the United States in 2002 to escape recruitment into a gang in his home country.
Gaitan now faces removal and has petitioned this Court to review the decision of the
Board of Immigration Appeals (BIA) that affirmed an immigration judge’s (IJ) denial
of Gaitan’s petition for asylum, withholding of removal, and relief under the
Convention Against Torture. We deny the petition for review.
I.
In April 2002, Gaitan entered the United States without inspection in order to
escape recruitment into the notorious gang “Mara Salvatrucha” or “MS-13.”
Approximately two years earlier, when Gaitain was twelve years old, Gaitan was
approached by members of MS-13 who attempted to recruit Gaitan into their gang.
Gaitan refused this initial invitation as well as subsequent bids from gang members.
He was never physically harmed during his interactions with MS-13. However, the
gang members threatened to harm Gaitan and his family if he did not join.
On August 10, 2007, the United States Department of Homeland Security
(DHS) initiated removal proceedings against Gaitan by filing a Notice to Appear with
the immigration court. DHS charged Gaitan with being removable under 8 U.S.C.
§ 1182(a)(6)(A)(i), for being present in the United States without being admitted or
paroled. Gaitan appeared before an IJ for an individual merits hearing. In responding
to the Notice to Appear, Gaitan admitted the factual allegations and conceded the
charge of removability. However, Gaitan sought relief from removal in the form of
asylum, withholding of removal, and under the Convention Against Torture. Gaitan
claimed that he was a member of a “particular social group” composed of young males
that have been previously recruited by MS-13 and are opposed to the nature of gangs.
To support this claim, Gaitan testified about his experience in El Salvador and gang
members’ efforts to recruit him. Gaitan also submitted written documentation
regarding the ongoing struggle in El Salvador for school-aged males to resist coerced
recruitment by gangs.
The IJ issued an oral decision rejecting Gaitan’s claims for relief. The IJ found
that Gaitan’s testimony was not sufficiently detailed or cohesive to make a positive
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credibility finding. The IJ then stated that even if Gaitan was credible, he failed to
show eligibility for asylum on the basis of membership in a particular social group.
In making this finding, the IJ relied heavily on the BIA’s decision in Matter of
S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), which the IJ found controlling in Gaitan’s
case.
Gaitan appealed to the BIA. Following a single-member review, the BIA
overturned the IJ’s ruling on credibility but upheld the IJ’s decision regarding the
merits of Gaitan’s claims for relief. Like the IJ, the BIA cited Matter of S-E-G- in
support of its denial of Gaitan’s appeal.
II.
“[T]his court has jurisdiction of ‘constitutional claims or questions of law raised
upon a petition for review.’” Solis v. Holder, 647 F.3d 831, 832 (8th Cir. 2011)
(quoting 8 U.S.C. § 1252(a)(2)(D)), petition for cert. filed, 80 B.N.A. U.S.L.W. 3336
(U.S. Oct. 26, 2011) (No. 11-571). “Where . . . the BIA issues an independent
decision without adopting the IJ’s conclusions, we review only the BIA decision.”
Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam). “A denial of
asylum is reviewed for abuse of discretion; underlying factual findings are reviewed
for substantial support in the record.” Hassan v. Gonzalez, 484 F.3d 513, 516 (8th
Cir. 2007). “We review questions of law de novo but accord substantial deference to
the BIA’s interpretation of immigration statutes and regulations.” Puc-Ruiz v. Holder,
629 F.3d 771, 777 (8th Cir. 2010).
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III.
To qualify for asylum under the Immigration and Nationality Act (INA), 8
U.S.C. § 1101 et seq., the burden is on Gaitan to show that he is a refugee, in other
words, to show that he is a person who is outside the country of his nationality “‘who
is unable or unwilling to return to, and is unable or unwilling to avail himself . . . of
the protection of, that country because of persecution or a well-founded fear or
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.’” Davila-Mejia v. Mukasey, 531 F.3d 624, 627-28 (8th
Cir. 2008) (quoting 8 U.S.C. § 1101(a)(42)(A)). The phrase “particular social group”
is not expressly defined in the INA. Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th
Cir. 2008). As a result, we give Chevron deference to the BIA’s reasonable
interpretation of the phrase and will not overturn the BIA’s conclusion unless it is
“arbitrary, capricious, or manifestly contrary to the statute.” Ngengwe, 543 F.3d at
1033; Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-44
(1984).
In 1985, the BIA defined a “particular social group” as “a group of persons all
of whom share a common, immutable characteristic. . . . that the members of the group
either cannot change, or should not be required to change because it is fundamental
to their individual identities or consciences.” Matter of Acosta, 19 I. & N. Dec. 211,
233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec.
439 (BIA 1987). The BIA subsequently expounded on the meaning of “particular
social group,” finding that factors such as “social visibility” and “particularity” were
relevant in determining whether a purported social group warrants protection under
the INA. See In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (BIA 2007); In re C-
A-, 23 I. & N. Dec. 951, 957-61 (BIA 2006).
In Matter of S-E-G-, 24 I. & N. Dec. at 582, the BIA further refined its
definition of a “particular social group” as “requir[ing] that the group have particular
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and well-defined boundaries, and that it possess a recognized level of social
visibility.” According to the BIA, “[t]he essence of the ‘particularity’ requirement . . .
is 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.” Id. at 585. Similarly, social visibility asks “whether the members
of the group are perceived as a group by society,” such that “these individuals suffer
from a higher incidence of crime than the rest of the population.” Id. at 586-87
(citation and internal quotation marks omitted).
In his petition for review, Gaitan focuses his challenge on the BIA’s finding that
he was not eligible for asylum because he was not a member of a particular social
group.1 Gaitan argues that our precedent does not mandate that we affirm the decision
of Matter of S-E-G- because Matter of S-E-G- unreasonably transformed social
visibility and particularity from relevant factors to be considered into requirements
that must be met to show membership in a particular social group. Gaitan asserts that
these requirements are not entitled to deference by this Court because they are
“conflicting, confusing, and illogical.”
1
Gaitan does not address the denial of relief under the Convention Against
Torture in his brief. Any argument based on that ground is therefore deemed waived.
See Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 n.3 (8th Cir.), cert. denied,
132 S. Ct. 315 (2011). Gaitan notes that he does not waive his claim that he is
otherwise eligible for relief in the form of withholding of removal under the INA.
However, “[t]he standard for withholding of removal, a clear probability of
persecution, is more rigorous than the well-founded fear standard for asylum. An
alien who fails to prove eligibility for asylum cannot meet the standard for
establishing withholding of removal.” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.
2005) (internal citations omitted). Because we find that Gaitan is not eligible for
asylum, Gaitan is unable to meet the standard for establishing withholding of removal.
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At the time that he filed his appeal, Gaitan was correct that no panel of this
Court had gone so far as to refer to social visibility and particularity as requirements.
Yet our recent decisions in Constanza v. Holder, 647 F.3d at 753-54, and Ortiz-
Puentes v. Holder, 662 F.3d 481 (8th Cir. 2011), adopted such a reading. In
Constanza, we denied a petition for review by a native and citizen of El Salvador who
applied for asylum on the basis that he would be persecuted by MS-13 gang members
because of “his membership in social groups defined as persons resistant to gang
membership, persons who have returned from the United States and are perceived as
affluent, and persons who fear harm to their families from gangs.” 647 F.3d at 752.
The BIA rejected Constanza’s petition and found that his articulated social groups
were “too broad and indeterminate for immigration purposes.” Id. at 752. In denying
Constanza’s petition for review, we were “persuaded by the BIA’s conclusion, as well
as authority from other circuits, that ‘persons resistant to gang violence’ are too
diffuse to be recognized as a particular social group.” Id. at 754 (citing Matter of
S-E-G-, 24 I. & N. Dec. at 588). Accordingly, we stated that “a social group requires
sufficient particularity and visibility such that the group is perceived as a cohesive
group by society.” Id. at 753.
Likewise, in Ortiz-Puentes, we denied a petition for review by three natives and
citizens of Guatemala who claimed their social group was comprised of “young
Guatemalans who refused to join gangs and were persecuted – beaten – as a result.”
662 F.3d at 483. We again noted with approval the BIA’s decision in Matter of
S-E-G-, and stated that “[a] group of persons defined as those who suffer violence
because they refused to join criminal gangs ‘lacks the visibility and particularity
required to constitute a social group’ for purposes of 8 U.S.C. § 1101(a)(42)(A).” Id.(quoting Constanza, 647 F.3d at 753-54).
We are bound by the decision of the earlier panels. Owsley v. Luebbers, 281
F.3d 687, 690 (8th Cir. 2002) (per curiam) (“It is a cardinal rule in our circuit that one
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panel is bound by the decision of a prior panel.”). As a result, this Court cannot find
that the social visibility and particularity requirements articulated in Matter of S-E-G-
are arbitrary or capricious.
In the present case, Gaitan sought relief from removal based on his membership
in a particular social group that he characterized as “young males from El Salvador
who have been subjected to recruitment by MS-13 and who have rejected or resisted
membership in the gang based on personal opposition to the gang.” After a careful
review of the record, we agree with the BIA that Gaitan’s articulated social group is
not sufficiently narrowed to cover a discrete class of persons who would be perceived
as a group by the rest of society. Instead, Gaitan “is no different from any other
Salvadoran . . . that has experienced gang violence.” Constanza, 647 F.3d at 754.
Accordingly, Gaitan has failed to establish that any mistreatment by MS-13 “occurred
because of his membership in a particular social group.” Id.
IV.
We deny the petition for review.
BYE, Circuit Judge, concurring.
Based upon our recent decisions in Constanza v. Holder, 647 F.3d 749 (8th Cir.
2011) (per curiam) and Ortiz-Puentes v. Holder, 662 F.3d 481 (8th Cir. 2011), I
concur in the result reached by the majority. I do so reluctantly, however, and write
separately to express my disagreement with our circuit’s as-a-matter-of-course
adoption of “social visibility” and “particularity” as requirements for establishing
“membership in a particular social group.” See 8 U.S.C. § 1101(a)(42)(A). While
both decisions cited with approval the BIA’s new approach to defining “particular
social group,” neither had before it the issue raised in this appeal: did the BIA act
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arbitrarily and capriciously in adding the requirements of “social visibility” and
“particularity” to its definition of “particular social group.” While I am convinced it
did, I am nonetheless bound by circuit precedent and therefore concur in the result.
Our circuit only recently addressed the BIA’s new approach to defining
“particular social group.” While both Constanza and Ortiz-Puentes grafted the
requirements of “social visibility” and “particularity” to petitioners’ social groups
claims, neither panel offered any explanation as to why the addition of these new
requirements—which are very clearly inconsistent with the BIA’s prior
decisions—should not be deemed arbitrary and capricious. Neither panel inquired as
to whether the BIA had provided a good reason, or any reason at all, for departing
from established precedent. Neither asked if the BIA’s new approach to defining
“particular social group” amounted to an arbitrary and capricious change from agency
practice. Instead, we simply adopted the new approach, as a matter of course, offering
no substantial reason ourselves for this shift in direction. As a result, I fear we have
chosen the wrong direction.
In order to understand why the BIA’s addition of the “social visibility” and
“particularity” requirements to the definition of “particular social group” is arbitrary
and capricious, some background information is necessary. The BIA first attempted
to define “particular social group” in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A.
1985). In Acosta, the BIA relied on the canon of ejusdem generis to construe
“membership in a particular social group” in a way which most closely resembles the
definition of the other four grounds of persecution under the Immigration and
Nationality Act (Act): race, religion, nationality, and political opinion. Id. at 233.
After deducing commonalities between the five bases of persecution cognizable under
the Act, the BIA defined “particular social group” as a “group of persons all of whom
share a common, immutable characteristic,” which may be either “an innate one such
as sex, color, or kinship ties” or a “shared past experience such as former military
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leadership or land ownership.” Id. In all such circumstances, BIA explained, the
characteristic uniting the group must be “one that the members of the group either
cannot change, or should not be required to change because it is fundamental to their
individual identities or consciences.” Id. Because an occupation is not something
individuals are either unable to change or, as a matter of conscience, should not be
required to change, the BIA rejected an asylum claim by a taxi driver in the city of San
Salvador premised on his membership in a taxi cooperative whose members were
targeted by the guerillas for having refused to participate in guerrilla-sponsored work
stoppages. Id. at 234.
During the next twenty years, the BIA applied the immutability definition of
Acosta in a variety of contexts. The BIA’s published decisions recognized as a
“particular social group” former members of Salvadorian national police (who could
not change their past experience of serving in the police), see In re Fuentes, 19 I. &
N. Dec. 658 (B.I.A. 1988); members of the Marehan subclan of the Darood clan in
Somalia (who shared kinship ties and linguistic commonalities), see In re H-, 21 I. &
N. Dec. 337 (B.I.A. 1996); Filipinos of mixed Filipino-Chinese ancestry (because
their traits were immutable ), see In re V-T-S-, 21 I. & N. Dec. 792 (B.I.A. 1997);
young women of a certain Togo tribe who have not yet had a female genital mutilation
(FGM) and who opposed the practice on moral grounds (because the “characteristic
of having intact genitalia is one that is so fundamental to the individual identity of a
young woman that she should not be required to change it”), see In re Kasinga, 21 I.
& N. Dec. 357 (B.I.A. 1996); and homosexuals in Cuba (based on the Board’s
recognition of homosexuality as an immutable characteristic), see In re Toboso-
Alfonso, 20 I. & N. Dec. 819, 822 (B.I.A. 1990). With some variations, all circuits
adopted the Acosta definition of “particular social group.” See generally Fatma E.
Marouf, The Emerging Importance of “Social Visibility” in Defining a “Particular
Social Group” and Its Potential Impact on Asylum Claims Related to Sexual
Orientation and Gender, 27 Yale L. & Pol’y Rev. 47, 53 & n.24 (2008) (stating federal
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courts “generally have followed Acosta” and cataloging relevant precedents)
(hereinafter “The Emerging Importance of Social Visibility”). Our circuit adopted the
Acosta definition as well, although it seemingly expanded it following the Ninth
Circuit’s lead to also permit social groups based on a “voluntary associational
relationship among the purported members.” Safaie v. INS, 25 F.3d 636, 640 (8th Cir.
1994) (theorizing a group of Iranian women who refuse to conform to Iranian customs
relating to dress and behavior and whose opposition is so profound that they would
choose to suffer the severe consequences of noncompliance “may well satisfy the
definition”) (citing the standard in Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th
Cir. 1986)).
Beginning in 2006, however, the BIA started deviating from the Acosta
definition of “particular social group” by emphasizing the importance of social
visibility of a given group. In Matter of C-A-, for example,2 the BIA reiterated its
2
The BIA signaled its intention to break away from the Acosta standard as early
as 2001, in its decision in Matter of R-A-, 22 I. & N. Dec. 906 (B.I.A. 2001). There,
the BIA refused to accord a social group status to a group of “Guatemalan women
who have been involved intimately with Guatemalan male companions who believe
that women are to live under male domination.” Id. at 917-18. Although the outcome
of the opinion was unobjectionable even under the traditional Acosta standard, its
logic was noteworthy for the BIA’s insistence that the applicant demonstrate “how the
characteristic is understood in the alien’s society” and how “the potential persecutors
. . . see persons sharing the characteristic as warranting suppression or the infliction
of harm.” Id. at 918. Because at the time R-A- was issued, the Immigration and
Naturalization Service was in the process of finalizing a rule defining “membership
in a particular social group,” the Attorney General vacated the BIA’s opinion pending
the publication of that rule. In re R-A-, 22 I. & N. Dec. 906 (B.I.A. 2001). The
proposed rule would incorporate R-A-.s consideration of social visibility, but only as
one of several non-exclusive factors. Asylum & Withholding Definitions, 65 Fed.
Reg. 76,588, 76,594 (Dec. 7, 2000). Ultimately, the rule was never formalized, and
the ball was back in the BIA’s court to define the “particular social group”
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adherence to Acosta, but listed “the extent to which members of a society perceive
those with the characteristic in question as members of a social group” as a “relevant
factor” in the analysis. 23 I. & N. Dec. 951, 956-57 (B.I.A. 2006). Applying this
standard, the BIA rejected the proposed social group of noncriminal drug informants
working against the Cali drug cartel in Colombia in part because “the very nature of
the conduct at issue is such that it is generally out of the public view.” Id. at 960.
The BIA continued the trend in Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69(B.I.A. 2007), by refusing to recognize a social group of “affluent Guatemalans”
targeted for ransom. The BIA acknowledged the petitioners should not be expected
to divest themselves of their wealth under the second prong of Acosta, but denied the
claim on the basis of the applicants’ inability to show “social visibility,” id. at 75(lamenting the lack of evidence to demonstrate “the general societal perception” of
wealthy people was different from the common perception of groups at different
socio-economic levels), and “particularity,” id. at 76 (criticizing the proposed group
for being “too amorphous” and “indeterminate”). In its reasoning, the BIA drew on
the Second Circuit opinion in Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991), where
the court required members of a cognizable social group to possess “some
fundamental characteristic in common which serves to distinguish them in the eyes
of a persecutor—or in the eyes of the outside world in general.”
The biggest transformation in the BIA’s “particular social group” jurisprudence,
however, came in its two most recent decisions issued on the same day in 2008:
Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008), and Matter of E-A-G-, 24 I. &
N. Dec. 591 (B.I.A. 2008). Both confronted claims of gang-related persecution under
the rubric of membership in a particular social group. In E-A-G-, the BIA refused to
recognize social groups of “young persons who are perceived to be affiliated with
incrementally, on a case-by-case basis.
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gangs (as perceived by the government and/or the general public)” and “persons
resistant to gang membership (refusing to join when recruited)” because these groups
“have not been shown to be part of a socially visible group within Honduran society,
and the respondent [does not] possess[] any characteristics that would cause others in
Honduran society to recognize him as one who has refused gang recruitment.” 24 I.
& N. Dec. at 593-94. In S-E-G-, the unsuccessful group was that of Salvadorian youth
who have been subjected to recruitment efforts by the MS-13 and who have rejected
and resisted membership in the gang based on their own personal, moral, and religious
opposition to the gang’s values and activities. 24 I. & N. Dec. at 579. Their claim for
asylum failed because, according to the BIA, it did not fare well under the “recent
decisions holding that membership in a purported social group requires that the group
have particular and well-defined boundaries, and that it possess a recognized level of
social visibility.” Id. In essence, the decisions elevated the requirements of “social
visibility” and “particularity” from merely some of the many factors in the holistic
analysis of the issue to absolute prerequisites to establishing membership in a
particular social group.
This new approach to defining “particular social group” split the circuits as to
the validity and permissible extent of the BIA’s reliance on “social visibility” and
“particularity.” Compare Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d
Cir. 2011) (concluding the BIA’s “social visibility” and “particularity” requirements
are inconsistent with prior BIA decisions and rejecting the government’s attempt to
graft these additional requirements onto petitioner’s social group claims); Gatimi v.
Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (criticizing the BIA’s decisions in S-E-
G- and E-A-G- for being “inconsistent” with the BIA’s precedents in Acosta and
Kasinga and for failing to explain the reasons for adopting the “social visibility”
criterion); Benitez Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir. 2009)
(denouncing the BIA’s insistence on “social visibility,” sometimes in its literal form,
and charging the BIA might not understand the difference between visibility in a
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social sense and the external criterion sense); Urbina-Mejia v. Holder, 597 F.3d 360,
365-67 (6th Cir. 2010) (noting being a former gang member is an immutable
characteristic and defining former members of the 18th Street gang as a “particular
social group” based on their inability to change their past and the ability of their
persecutors to recognize them as former gang members), with Lizama v. Holder, 629
F.3d 440, 447 (4th Cir. 2011) (upholding the BIA’s definition of a particular social
group as requiring that “(1) its members share common immutable characteristics, (2)
these common characteristics give members ‘social visibility, and (3) the group is
defined with “sufficient particularity to delimit its membership”); Ramos-Lopez v.
Holder, 563 F.3d 855, 862 (9th Cir. 2009) (upholding the BIA’s adoption of the
“social visibility” requirement); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir. 2009)
(rejecting petitioners’ claims the BIA is precluded from considering the visibility of
a group); and Fuentes-Hernandez v. Holder, 411 F. App’x 438, 438-39 (2d Cir. 2011)
(stating individuals who resisted gang recruitment in El Salvador do not constitute a
“particular social group” because their proposed group lacked “social visibility” and
“particularity” and because the alleged persecution “did not bear the requisite nexus
to a protected ground”).
I agree with the circuits which hold the BIA’s addition of the “social visibility”
and “particularity” requirements to the definition of “particular social group” is
arbitrary and capricious. First, as discussed above, these newly added requirements
are inconsistent with prior BIA decisions. Specifically, they are in direct conflict with
the definition of “particular social group” announced in Acosta. By stating this, I am
in no way suggesting the BIA must continue to adhere to the Acosta definition. I am
of course cognizant the BIA may “add new requirements to, or even change, its
definition of ‘particular social group’” over time. Valdiviezo-Galdamez, 663 F.3d at
608; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 57 (1983) (stating an agency may change its interpretation of a
stature or regulation over time). The BIA, however, must explain its choice for doing
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so because an unexplained departure from established precedent is generally “a reason
for holding [the departure] to be an arbitrary and capricious change from agency
practice[.]” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 981 (2005); see also FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1811
(2009) (stating “the agency must show that there are good reasons for the new
policy”); Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1123
(8th Cir. 1999) (noting “a sudden and unexpected change in agency policy” may be
characterized as arbitrary and capricious).
Because the BIA departed from its well-established Acosta definition without
providing a reasonable explanation for its choice, the departure is arbitrary and
capricious. Thus, although I am bound by our decisions in Constanza and Ortiz-
Puentes, I cannot agree with our circuit’s as-a-matter-of-course adoption of the BIA’s
new approach to defining “particular social group”—an approach which not only
represents a stark departure from established precedent, but also eviscerates
protections for many groups of applicants eligible under the agency’s prior definition.
Therefore, I reluctantly concur in the result.
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