Felix Flores Rios v. Loretta E. Lynch , 807 F.3d 1123 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIX FLORES RIOS, AKA Alex No. 12-72551
Miguel Reyes, AKA Alex Rios,
AKA Miguel Rios, AKA Miguel Agency No.
Flores Rios, A200-244-399
Petitioner,
v. OPINION
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 23, 2015*
Filed December 1, 2015
Before: Sidney R. Thomas, Chief Judge and Michael Daly
Hawkins and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 FLORES-RIOS V. LYNCH
SUMMARY**
Immigration
Concluding that the Board of Immigration Appeals erred
by failing to consider petitioner’s claim for withholding of
removal based on his family’s opposition to a Guatemalan
gang, the panel denied in part and granted in part the petition
for review, and remanded for further consideration.
The panel held that substantial evidence supported the
Board’s determination that because petitioner had never been
threatened or harmed due to his religious affiliation and did
not engage in proselytizing efforts, there was little likelihood
that he would be persecuted as a result of his religious beliefs.
Applying the revised framework for social group
membership espoused by the Board in Matter of M-E-V-G-,
26 I. & N. Dec. 227 (B.I.A. 2014), the panel stated that
membership in a particular social group must now show 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. The panel
explained that the new social distinction prong of the social
group analysis refers to social recognition and requires that a
group be perceived as a group by society, in contrast to the en
banc majority’s focus on the perception of the persecutor in
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir.
2013) (en banc). The panel stated that even under this revised
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FLORES-RIOS V. LYNCH 3
framework, the family remains the quintessential particular
social group.
The panel held that the Board erred by failing to address
petitioner’s claim that he is a member of a social group made
up of his family and that he risks persecution by a gang
because of its vendetta against his family. The panel
remanded for further proceedings.
COUNSEL
Mardy M. Sproule, Law Offices of Mardy M. Sproule,
Commerce, California, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division; Jennifer L. Lightbody, Senior Litigation Counsel;
Robbin K. Blaya, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for Respondent.
4 FLORES-RIOS V. LYNCH
OPINION
McKEOWN, Circuit Judge:
This appeal requires us to consider the meaning of
“membership in a particular social group” in the context of
withholding of removal proceedings under the immigration
laws. Providing a precise definition for this inherently
flexible term, which is not defined in the legislation, has long
bedeviled those tasked with adjudicating asylum and
withholding claims. In recognition of these semantic
difficulties, the Board of Immigration Appeals (“Board” or
“BIA”) recently clarified the criteria for assessing social
group claims. Matter of M-E-V-G-, 26 I. & N. Dec. 227(B.I.A. 2014). Under the Board’s refined test, to establish
eligibility for withholding on the basis of “membership in a
particular social group,” a petitioner must show that the group
is (1) comprised of individuals who “share a common
immutable characteristic, (2) defined with particularity, and
(3) socially distinct within the society in question.” Id. at 237.
Felix Flores-Rios made such a claim. Before the BIA, he
argued that he faced persecution in his native Guatemala both
because of a gang vendetta targeting his family—a cognizable
“particular social group”—and because of his Evangelical
Christian faith. Focusing exclusively on Flores-Rios’s
religious claims, the BIA rejected the appeal.
BACKGROUND
Flores-Rios petitions for review of the BIA decision
affirming the denial of his application for asylum,
FLORES-RIOS V. LYNCH 5
withholding of removal and protection under the Convention
Against Torture (“CAT”).1
Flores-Rios entered the United States without inspection
on September 10, 2007. On June 15, 2009, gang members
killed his father outside of his father’s Evangelical Christian
church in Guatemala. Flores-Rios’s cousin, Karine Faviola
Flores-Aguillar, witnessed the murder and agreed to testify
against the perpetrators. She was murdered the day before the
hearing. Flores-Rios asserts that she was killed in retaliation
for her willingness to cooperate with the authorities and to
prevent her appearance as a witness against the gang
members who killed his father. In the wake of Flores-
Aguillar’s death, Flores-Rios’s sister began receiving threats,
even though she had neither witnessed the attack on her father
nor agreed to testify against the gang members responsible.
Due to these threats, she felt compelled to flee to the United
States.
Before the IJ, Flores-Rios argued that he and his family
were persecuted for their Evangelical faith and that he feared
persecution in Guatemala on the basis of his religion. Flores-
Rios also claimed that his cousin was murdered and his
family threatened in part because of their refusal to “declare
the innocence” of those responsible for his father’s murder.
1
The BIA affirmed the Immigration Judge’s (“IJ”) determination that
Flores-Rios’s asylum claim was time-barred because he failed to either
apply within one year of his arrival or meet any of the exceptions to the
one-year rule pursuant to 8 U.S.C. § 1158(a)(2)(B). On appeal to this
court, Flores-Rios abandoned his claims for asylum and CAT protection
by not addressing them with any specificity in his briefs. See Aguilar-
Ramos v. Holder, 594 F.3d 701, 703 n.1(9th Cir. 2010) (citing Martinez-
Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a
brief that are not supported by argument are deemed abandoned.”)).
6 FLORES-RIOS V. LYNCH
The IJ rejected Flores-Rios’s religious claims, referencing a
newspaper article introduced by Flores-Rios, which described
his father’s murderers as members of a local gang “dedicated
to killing and collecting a tax from local businesses.” The IJ
found that violence and witness intimidation—not religious
persecution—led to the murders of Flores-Rios’s relatives.
The IJ further noted a then-pending Ninth Circuit en banc
decision, Henriquez-Rivas v. Holder, which related to
whether witnesses against gangs could qualify as members of
a particular social group for purposes of establishing
withholding eligibility.2 The IJ concluded that, regardless of
the outcome of the en banc decision, Henriquez-Rivas would
be inapplicable because Flores-Rios did not witness the
murders and thus would not be called to testify against the
culpable parties.
On appeal to the BIA, Flores-Rios reiterated his religious
persecution argument and also claimed that he feared
persecution based on his family’s opposition to the
Guatemalan gang that killed his father and cousin.
Specifically, he argued that the gang had threatened members
of his family in order to dissuade them from supporting the
prosecution of the murderers and that he was at risk because
of his familial affiliation. The BIA dismissed the appeal,
agreeing with the IJ that Flores-Rios had established neither
a link between his father’s murder and his father’s faith nor
a “clear probability of persecution on account of his religion.”
The BIA did not address Flores-Rios’s contention that he
would be persecuted in Guatemala as a result of his family’s
opposition to the gang.
2
Henriquez-Rivas was decided one year after the IJ denied Flores-Rios’s
application. 707 F.3d 1081 (9th Cir. 2013) (en banc).
FLORES-RIOS V. LYNCH 7
ANALYSIS
This case turns on whether Flores-Rios established a
likelihood of persecution either because of his religion or his
membership in a cognizable particular social group. Because
the BIA erred in failing to address his claims of persecution
due to his family’s opposition to a local gang, we remand for
consideration of Flores-Rios’s social group claim.
Flores-Rios tied his claims of religious persecution to the
threats and abuse allegedly suffered by his family due to their
Evangelical Christianity. The BIA concurred in the IJ’s
analysis that Flores-Rios failed to establish a sufficient nexus
between the murders of his relatives and their religious
beliefs. The BIA also agreed with the IJ’s conclusion that,
because Flores-Rios had never been threatened or harmed due
to his religious affiliation and did not engage in proselytizing
efforts, there was little likelihood that he would be persecuted
as a result of his religious beliefs. Substantial evidence
supports the BIA’s conclusions. See Cordoba v. Holder,
726 F.3d 1106, 1113 (9th Cir. 2013) (The BIA’s “purely
factual determinations” are reviewed only for “substantial
evidence.”).
However, our analysis does not end there. The crux of this
appeal is Flores-Rios’s claim for withholding of removal due
to persecution on the basis of his membership in a particular
social group—his family. Despite the government’s argument
to the contrary, Flores-Rios raised this claim in his brief to
the Board. In so doing, he properly exhausted his
administrative remedies. See Zhang v. Ashcroft, 388 F.3d
713, 721 (9th Cir. 2004) (explaining that to exhaust an
asylum claim, an applicant must put the BIA on notice by
raising any issues in the notice of appeal or in the briefs).
8 FLORES-RIOS V. LYNCH
Before the IJ, Flores-Rios claimed that his cousin had
agreed to testify against his father’s killers, but was murdered
a day before the hearing. After his cousin’s murder, Flores-
Rios’s sister began receiving threats, even though she had not
witnessed the murders and was not cooperating in the
prosecution of the murderers. The IJ made no adverse
finding as to Flores-Rios’s credibility and expressly
acknowledged that the murders were apparently motivated by
gang violence and witness intimidation. The IJ went on to
note that Flores-Rios could not establish a claim based on
membership in a social group comprised of witnesses against
gangs, because he had not witnessed the murders and thus
could not testify.
The IJ’s characterization misapprehended Flores-Rios’s
complaint—he does not claim to be a member of a social
group comprised of witnesses against gangs. Rather, he
asserts that he is a member of a social group made up of his
family and that he risks persecution by the gang because of its
vendetta against his family. The BIA did not address this
social group claim—a failure that constitutes error and
requires remand. See Sagaydak v. Gonzales, 405 F.3d 1035,
1040 (9th Cir. 2005) (The BIA is “not free to ignore
arguments raised by a petitioner.”). A short history of the
evolving definition of the term “particular social group” is
useful at this stage of the proceedings, particularly in light of
the risk that Flores-Rios’s social group claim might once
again be misconstrued on remand.
“Membership in a particular social group” is an enigmatic
and difficult-to-define term. Donchev v. Mukasey, 553 F.3d
1206, 1215–16 (9th Cir. 2009). In the seminal case
addressing the phrase, the BIA determined that a cognizable
“particular social group” must consist of “persons all of
FLORES-RIOS V. LYNCH 9
whom share a common, immutable characteristic,” including
innate qualities “such as sex, color, or kinship ties . . . .”
Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985),
overruled on other grounds, Matter of Mogharrabi, 19 I. &
N. Dec. 439 (B.I.A. 1987).
Over time, the flexible nature of the common, immutable
characteristic test created “confusion and a lack of
consistency” among the judges tasked with adjudicating
asylum and withholding claims. Matter of M-E-V-G-, 26 I. &
N. Dec. 227, 231 (B.I.A. 2014). In 2006, responding to calls
from the circuit courts for greater clarity regarding the
framework for determining the existence of a “particular
social group,” the BIA adopted the “social visibility”
requirement. Matter of C-A-, 23 I. & N. Dec. 951, 959 (B.I.A.
2006). “Social visibility” focused on whether the group in
question was “easily recognizable and understood by others
to constitute [a] social group[].” Id. Thus, for example, the
BIA concluded that confidential informants against
Colombian drug cartels could not be members of a “particular
social group” because “the very nature of the conduct at issue
is such that it is generally out of the public view,” such
informants necessarily lacked the requisite social visibility.
Id. at 960.
Despite the BIA’s elaboration of “social visibility,” the
illusive nature of the requirement spawned inter-circuit
disagreement. Henriquez-Rivas, 707 F.3d 1081, 1087 (9th
Cir. 2013) (en banc). In Henriquez-Rivas, we wrote that
social visibility required that members of a proposed group
“be perceived as a group by society.” Id. at 1088–89
(citations omitted). Henriquez-Rivas’s proposed social
group—comprised of individuals who testified in open court
against gang members—met the social visibility requirement,
10 FLORES-RIOS V. LYNCH
because an informant who testifies in open court against gang
members is, by definition, “highly visible and recognizable,”
and because Salvadoran society had acknowledged the
“unique vulnerability” of those who testify against gang
members by enacting protective legislation to safeguard those
witnesses. Id. at 1092 (citation omitted).
A majority of the en banc court elaborated that “in the
context of persecution, we believe that the perception of the
persecutors may matter the most.” Id. at 1089. As noted in the
concurrence, however, “[d]efining social visibility from the
perspective of society [not the perpetrator] better comports
with the case law” and “also makes common sense.” Id. at
1094 (McKeown, J., concurring). In the end, our conclusion
that the persecutor’s perception matters most in determining
whether a claim satisfied the social visibility requirement was
unnecessary to our decision.
In the wake of Henriquez-Rivas, the BIA revisited the
framework for assessing claims based on social group
membership and recast the “social visibility” requirement as
one of “social distinction.” Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 240 (B.I.A. 2014). The new “social distinction”
prong of the social group analysis “refers to social
recognition” and requires that a group “be perceived as a
group by society.” Id. The BIA further clarified that
recognition of a particular social group “is determined by the
perception of the society in question, rather than by the
perception of the persecutor.” Id. at 242. This approach
contrasts with the en banc majority’s focus on the perpetrator
in Henriquez-Rivas, and comports with the above-referenced
concurrence. Under the BIA’s revised rubric, an applicant for
withholding on the basis of membership in a particular social
group must now show that the group is “(1) composed of
FLORES-RIOS V. LYNCH 11
members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within
the society in question.” Id. at 237.
Even under this refined framework, the family remains
the quintessential particular social group. See id. at 240, 247
(citing with approval prior decisions finding the family easily
recognizable and perceived by others as a social group). In
Thomas v. Gonzales, we held “that family membership may
constitute membership in a ‘particular social group,’ and thus
confer refugee status on a family member who has been
persecuted or who has a well-founded fear of future
persecution on account of that familial relationship.” 409 F.3d
1177, 1180 (9th Cir. 2005) (en banc), vacated on other
grounds, Gonzales v. Thomas, 547 U.S. 183 (2006). We also
recognized that persecutors are more likely to identify
individual family members as part of a particular social group
when familial ties are “linked to race, religion, or political
affiliation.” Id. at 1188. We declined to hold, however, “that
a family can constitute a particular social group only when
the alleged persecution on that ground is intertwined with”
another protected ground. Id.
Our sister circuits similarly recognize the family as a
“particular social group.” See, e.g., Crespin-Valladares v.
Holder, 632 F.3d 117, 125 (4th Cir. 2011) (“[E]very circuit
to have considered the question has held that family ties can
provide a basis for asylum.”); Al-Ghorbani v. Holder,
585 F.3d 980, 995 (6th Cir. 2009) (“[M]embership in the
same family [] is widely recognized by the caselaw.”);
Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) (“There
can, in fact, be no plainer example of a social group based on
common, identifiable and immutable characteristics than that
of the nuclear family.”). The Fourth Circuit’s decision in
12 FLORES-RIOS V. LYNCH
Crespin-Valladares is illustrative here. In Crespin-
Valladares, the petitioner claimed that family members of
witnesses who agreed to testify against gang members and
who “suffer[ed] persecution on account of their family ties”
constituted a cognizable social group. 632 F.3d at 125. The
court pointed out that the BIA had misconstrued this group as
“those who actively oppose gangs . . . by agreeing to be
prosecutorial witnesses.” Id. Because few groups are more
“readily identifiable than the family,” the BIA’s
determination that the petitioner had not shown membership
in a particular social group “was manifestly contrary to law.”
Id. at 126.
In the face of Flores-Rios’s social group claim and the
evidence that gang members killed Flores-Rios’s father,
murdered his cousin and threatened his sister, the BIA erred
in not addressing the family aspect of Flores-Rios’s social
group claim.
Accordingly, the petition for review is DENIED in part
and GRANTED in part. The BIA’s decision is VACATED
AND REMANDED for further proceedings.
Each party shall bear its own costs on appeal.