Silvana Paloka v. Eric H. Holder, Jr. , 762 F.3d 191 ( 2014 )

12-4987-ag
Silvana Paloka v. Eric H. Holder, Jr.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2013
Heard: May 21, 2014 Decided: August 7, 2014
Docket No. 12-4987-ag
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SILVANA PALOKA,
Petitioner,
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
Respondent.
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Before: NEWMAN, WALKER, and CABRANES, Circuit Judges.
Appeal from the December 4, 2012, order of the Board of
Immigration Appeals dismissing Petitioner’s application for
asylum and other relief. Petitioner challenges the rejection
of her claim that she was persecuted on account of membership
in a particular social group.
VACATED and REMANDED.
Kai W. De Graaf, New York, NY, for
Petitioner.
Margot L. Carter, Trial Attorney,
Office of Immigration
Litigation, Washington, D.C.,
(Stuart F. Delery, Assistant
Attorney General for the Civil
Division of the U.S. Department
of Justice, Leslie McKay,
Assistant Director of the Office
of Immigration Litigation,
Washington, D.C., on the brief),
for Respondent.
JON O. NEWMAN, Circuit Judge.
The primary issue on this appeal is whether “young
Albanian women” or “young Albanian women between the ages of
15 and 25" qualify as a “particular social group” for asylum
purposes. 8 U.S.C. § 1101(a)(42)(A). Petitioner Silvana
Paloka appeals from the December 4, 2012, order of the Board
of Immigration Appeals (“BIA”) dismissing her application for
asylum and other relief. See In re Silvana Paloka, No. A093-
341-960 (B.I.A. Dec. 4, 2012).
In view of the BIA’s two recent precedential
decisions clarifying its interpretation of “particular social
group” for asylum purposes, we will remand so that the BIA may
determine, in the first instance, whether Paloka’s proposed
social groups qualify for asylum purposes.
Background
After arriving in the United States, Paloka, a native
of Albania, timely applied for asylum. She was then nineteen
years old and unmarried. The Immigration Judge (“IJ”) deemed
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Paloka credible; therefore, we use her testimony and the IJ’s
factual findings to set forth the facts of her case.
Facts of alleged persecution. Paloka’s parents lived
in Berdice, Albania, in a section of town that had previously
been sectored off as a camp for those who had spoken out
against the communist regime. Her parents and grandparents
had been persecuted for their anti-communist stance from the
1960s to the fall of the communist regime in the early 1990s.
The family’s land was taken and her grandparents were interned
in the camp in 1965. Her father was disabled from a beating
by government agents in 1985. Paloka was born in the camp in
1989.
When she was eighteen, Paloka got a job as a
hairdresser in the nearby town. She walked a considerable
distance to get to and from her home. In 2008, on three
separate occasions during trips to and from work, Paloka was
pressured to become a prostitute. The first occurred in May
2008. Paloka was returning home from work when a man she had
never seen before approached her. He said he wanted to meet
her parents, marry her, and take her to Greece. Paloka said
she was not interested and began to walk home, but the man
said she would see him again. He got into a police car, and
it drove off. Paloka told her employer, Rita Mendoja, about
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the incident and was allowed to leave work earlier when the
streets were less deserted.
In June 2008, a police car stopped beside Paloka
while she was walking home. Two men got out of the car, one
in a police uniform and the other in civilian clothes. Paloka
recognized the man in civilian clothes as the man who had
stopped her in May. The man in the police uniform told Paloka
that he knew her family was not from the area, her family had
been persecuted in the past, her parents were disabled, and
her brothers were too young to protect her. He then
threatened to kill her and her family if she did not accede to
the wishes of the other man. Paloka understood that the men
wanted to sell her into prostitution. At that moment, three
of Paloka’s neighbors happened to pass by and provided her
with a ride home.
Two days after the second incident, Paloka met with
both a local official and a village leader to inform them of
the incident and request protection. Both leaders said that
they could not help her.
A third incident occurred in July 2008. Paloka left
work late at 8:30 p.m. For this reason, Mendoja accompanied
her home. On the road, the women saw a police car stopped on
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an empty road. The same two men who had threatened Paloka
previously stepped out of the car. They grabbed Paloka by her
arms and hair and kicked her. Mendoja screamed and tried to
fight with them. The men tried to push Paloka into the police
car. During the struggle, an armed shepherd came on the
scene. The shepherd pointed his rifle at the men and
threatened to kill them unless they let Paloka and Mendoja go.
The two men got back into the police car and departed. The
shepherd accompanied the women to Paloka’s home.
Paloka told her parents about the final incident, and
they all agreed that she should go live with her aunt and
uncle in the main city of Shkoder until she could leave the
country. Paloka did so, and left Albania and came to the
United States in August 2008.
Administrative proceedings. Before the IJ, Paloka
testified that she would be afraid to live anywhere in Albania
because the threat of human trafficking for prostitution
existed everywhere in the country. The 2008 State Department
Trafficking in Persons Report (“Trafficking Report”) states
that most Albanian sex trafficking victims are women and girls
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between the ages of 15 and 25.1 The Report also notes that
“[t]he Government of Albania does not fully comply with the
minimum standards for the elimination of trafficking; however,
it is making significant efforts to do so.” Trafficking Report
60. Specifically, the Report noted a concern that “public
officials . . . participated in or facilitated human
trafficking.” Id. At Paloka’s hearing, the IJ observed that
“forced . . . prostitution through sex trafficking . . .
occurs relatively often in Albania[,] which is recognized as
one of the countries where this is more common than many other
countries.”
To bring her generalized sex trafficking claim within
the required category of a “particularized social group”
Paloka asserted membership in three groups: “unmarried women,”
“young women in Albania,” and “unmarried young women in
Albania.” At oral argument, she suggested that her third
group could be narrowed by a specific age limitation of 15 to
25 years.
1
The report can be found online. See 2008 U.S. Department of
State, Trafficking in Persons Report (2009), available at
http://www.state.gov/j/tip/rls/tiprpt/2009/ (last accessed June 6,
2014, and available in Clerk of Court’s case file).
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The IJ denied Paloka’s application for asylum,
withholding of removal, and protection under the Convention
Against Torture. The IJ provided two alternative reasons for
denying Paloka’s claim of membership in a “particular social
group.” First, the IJ determined that all of her proposed
groups were “too broad.” Second, the IJ decided that Paloka
was not targeted “on account of” her membership in a
particular social group but instead because she was a “good
target for criminal opportunistic behavior.”
The BIA did not reach the question of whether the
incidents amounted to persecution. Instead, the BIA stated
that the proposed groups were “not defined with sufficient
particularity to be cognizable particular social groups.” The
BIA also rejected her alternative social group based on her
family’s political ties because Paloka had not shown that she
was targeted on account of her family’s political history;
instead, the BIA concluded that she “was approached because
she was a good target for criminal opportunistic behavior.”
Discussion
I. Standard of Review and Statutory Scheme
Because the BIA did not expressly adopt the IJ's
decision, but “its brief opinion closely track[ed] the IJ's
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reasoning,” we have reviewed the opinions of both the IJ and
the BIA “for the sake of completeness.” Zaman v. Mukasey, 514
F.3d 233, 237 (2d Cir. 2008) (internal quotation omitted). We
review factual findings under the substantial evidence
standard, treating them as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). Questions of law, as well as the
application of legal principles to undisputed facts, are
reviewed de novo. See Guan Shan Liao v. United States, 293
F.3d 61, 66 (2d Cir. 2002).
To establish eligibility for asylum or withholding
of removal, an applicant must show persecution, or fear of
persecution, on account of race, religion, nationality,
membership in a particular social group, or political opinion.
See 8 U.S.C. §§ 1101(a)(42); 1231(b)(3). Direct governmental
action is not required for a claim of persecution. Private
acts can constitute persecution if the government “is unable
or unwilling to control it.” Rizal v. Gonzales, 442 F.3d 84,
92 (2d Cir. 2006); see also Pavlova v. I.N.S., 441 F.3d 82, 85
(2d Cir. 2006). To succeed on a particular social group
claim, the applicant must establish both that the group itself
was cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73
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(2d Cir. 2007), and that the alleged persecutors targeted the
applicant “on account of” her membership in that group, see 8
U.S.C. § 1101(a)(42)(A).
Paloka contends that her membership in a particular
social group is the reason she has been persecuted and the
reason she fears future persecution. The primary question in
this case is whether the social group she has described
satisfies the statutory standard of section 101(a)(42)(A) of
the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101(a)(42)(A). Courts review de novo the legal
determination of whether a group constitutes a “particular
social group” under the INA. See, e.g., Cece v. Holder, 733
F.3d 662, 668 (7th Cir. 2013) (in banc); Ayala v. Holder, 640
F.3d 1095, 1096-97 (9th Cir. 2011); Castaneda-Castillo v.
Holder, 638 F.3d 354, 363 (1st Cir. 2011).
II. BIA’s Interpretation of “Particular Social Group”
Congress did not define “membership in a particular
social group” in the INA, as the BIA has recognized, see In re
M-E-V-G-, 26 I. & N. Dec. 227, 230 (B.I.A. 2014) (“M-E-V-G-”).
The BIA has interpreted this phrase through a series of
precedential opinions. See M-E-V-G-, 26 I. & N. Dec. at 231-
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33 (collecting cases). We give the BIA interpretations
Chevron deference because the statutory phrase is vague. See
Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc.,
467 U.S. 837, 842–43 (1984); cf. Scialabba v. Cuellar de
Osario, 134 S. Ct. 2191, 2203-07 (2014) (plurality opinion);
see also Ucelo-Gomez, 509 F.3d at 72.
The BIA’s attempts to give meaning to “particular
social group” began in 1985. The first decision interpreted
“membership in a particular social group” to mean “persecution
that is directed toward an individual who is a member of a
group of persons all of whom share a common, immutable
characteristic.” In re Acosta, 19 I & N Dec. 211, 233 (B.I.A.
1985). Additionally, the common characteristic that defines
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.
The BIA has clarified its interpretation by
specifying two additional factors that a qualifying social
group must have, “social visibility” and “particularity.” See
M-E-V-G-, 26 I. & N. Dec. at 232 (interpreting In re C-A-, 23
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I. & N. Dec. 951, 959-61 (B.I.A. 2006)). Under these
additional requirements, the BIA explained, the particular
social group in question must have “well-defined boundaries”
and be “‘recognizable’ as a discrete group by others in the
society.” Id. (quoting and interpreting In re A-M-E- & J-G-U-,
24 I. & N. Dec. 69, 74-76 (B.I.A. 2007)).
In response to a Third Circuit decision that declined
to afford deference to the BIA’s view of the “particularity”
and “social visibility” requirements, see Valdiviezo-Galdamez
v. Attorney General of U.S., 663 F.3d 582 (3d Cir. 2011), the
BIA clarified its interpretation of “particular social group”
in two companion cases decided after the pending petition for
review was filed: M-E-V-G- and In re W-G-R-, 26 I. & N. Dec.
208 (B.I.A. 2014) (W-G-R-”). M-E-V-G- summarized the BIA’s
criteria for identification of ”particular social group” as
follows:
(1) composed of members who share a common
immutable characteristic,
(2) defined with particularity, and
(3) socially distinct within the society in
question.
M-E-V-G-, 26 I. & N. Dec. at 237.
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The reformulated test and accompanying analysis
clarified several issues. First, the BIA renamed the “social
visibility” requirement as “social distinction.” Id. at 236.
It stressed that this requirement “was never intended to, and
does not require, literal or ‘ocular’ visibility.” Id. at
234.2 “To be socially distinct, a group need not be seen by
society; rather, it must be perceived as a group by society.
Society can consider persons to comprise a group without being
able to identify the group’s members on sight.” Id. at 240
(internal citation omitted).
As to the particularity requirement, the BIA stressed
that the social group in question “must be defined by
characteristics that provide a clear benchmark for determining
who falls within the group.” Id. at 239. “The group must
also be discrete and have definable boundaries – it must not
be amorphous, overbroad, diffuse, or subjective.” Id.
“Societal considerations,” the BIA explained, “will
necessarily play a factor” in determining whether a group “is
2
As the BIA explained: “Contrary to our intent, the term
‘social visibility’ has led some to believe that literal, that is,
‘ocular’ or ‘on-sight,’ visibility is required to make a particular
social group cognizable under the Act. See Valdiviezo-Galdamez, 663
F.3d at 606-07.” M-E-V-G-, 26 I. & N. Dec. at 236.
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discrete or is, instead, amorphous.” W-G-R-, 26 I. & N. Dec.
at 214.
The BIA also clarified that in determining
particularity and social distinction what matters is whether
society as a whole views a group as socially distinct, not the
persecutor’s perception. M-E-V-G-, 26 I. & N. Dec. at 242.
Although a persecutor’s perception can be indicative of
whether society views a group as distinct, a persecutor’s
perception alone is not enough to establish a cognizable
social group. See id. “Persecutory conduct aimed at a social
group cannot alone define the group, which must exist
independently of the persecution.” W-G-R-, 26 I. & N. Dec.
at 215. Of course, the BIA emphasized, persecution can be the
“catalyst” for a group of individuals to “experience a sense
of ‘group’” and for society to “discern that this group of
individuals . . . is distinct in some significant way.” M-E-
V-G-, 26 I. & N. Dec. at 243. And, the BIA continued, there
must be an “immutable characteristic [that] exists independent
of the persecution.” Id.
After an individual shows that she is a member of a
cognizable social group, she must demonstrate that the
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persecution was “on account of” her membership in that
particular social group. See W-G-R-, 26 I. & N. Dec. at 223.
Whether the requisite nexus exists “depends on the views and
motives of the persecutor.” Id. at 223-24.
Circuit case law before the BIA’s recent decisions
was not consistent. Most pertinent to the pending case, with
respect to an asylum applicant fearing being forced into
prostitution, the Seventh Circuit had approved a group of
young women living alone in Albania, Cece, 733 F.3d at 671,
and the Sixth Circuit had rejected as too “generalized” and
“sweeping” a claimed group of “young (or those who appear to
be young), attractive Albanian women who are forced into
prostitution,” Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th
Cir. 2005). In a non-precedential decision, our Court found
it unnecessary to adjudicate a group defined as young
unmarried Albanian women, see Gjura v. Holder, 502 F. App’x,
91 (2d Cir. 2012), for lack of evidence of a nexus to the
alleged group, see id. at 92.
Several circuit decisions have divided on whether
other proposed groups of women qualified as a “particular
social group.” Compare Sarhan v. Holder, 658 F.3d 649, 654
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(7th Cir. 2011) (approving proposed group of women who “in
accordance with social and religious norms in Jordan, are
accused of being immoral criminals and, as a consequence, face
the prospect of being killed without any protection from the
Jordanian government”), Al-Ghorbani v. Holder, 585 F.3d 980,
996 (6th Cir. 2009) (approving proposed group of women who
opposed the repressive and discriminatory Yemeni cultural and
religious customs that prohibit mixed-class marriages and
require paternal consent for marriage), Agbor v. Gonzales, 487
F.3d 499, 502 (7th Cir. 2007) (approving proposed group of
woman who are opposed to and fear genital mutilation), and
Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir. 2002)
(approving proposed group of Christian women in Iran who do
not wish to adhere to the Islamic female dress code), with
Rivera-Barrinetos v. Holder, 666 F.3d 641, 653 (10th Cir.
2012) (rejecting proposed group of Salvadoran women between
ages 12 and 25 who resisted gang recruitment for lack of
evidence that group is perceived to be a distinct social group
in El Salvador), Kante v. Holder, 634 F.3d 321, 327 (6th Cir.
2011) (rejecting proposed group of women subjected to rape as
a method of government control in part because of proposed
group’s generalized and far reaching nature), Faye v. Holder,
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580 F.3d 37, 42 (1st Cir. 2009) (rejecting proposed group of
“women who had a child out of wedlock/are considered
adulterers because they gave birth to a child allegedly not
their husband’s/have been abused by their husbands” for lack
of evidence that group is a recognized social group in
Senegal), and Sharif v. INS, 87 F.3d 932, 936 (7th Cir. 1996)
(stating that the cognizability of a group of Iranian women
who had become “westernized” while living in the United States
was “debatable at best”).
II. Consequence of BIA Clarification
M-E-V-G- and W-G-R- have clarified the legal
landscape for adjudicating “particular social group” claims.
Although we are not presented with the paradigmatic situation
requiring a remand – where an agency has not made any decision
on the pertinent issue, see Gonzales v. Thomas, 547 U.S. 183,
186 (2006); Immigration & Naturalization Service v. Ventura,
537 U.S. 12, 17 (2002); Ucelo-Gomez v. Gonzales, 464 F.3d 163,
169-70 (2d Cir. 2006), remand is appropriate in this case
following the agency’s clarification of its approach to that
issue. Cf. NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d
Cir. 1995) (remand following intervening change of policy).
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“[E]very consideration that classically supports the law’s
ordinary remand requirement does so here. The agency can
bring its expertise to bear upon the matter; it can evaluate
the evidence; it can make an initial determination; and, in
doing so, it can, through informed discussion and analysis,
help a court later determine whether its decision exceeds the
leeway that the law provides.” Ventura, 537 U.S. at 17.
The new clarifying opinions are important for cases,
like Paloka’s, that straddle the line between individuals
threatened by state-sponsored or state-condoned criminality on
account of their membership in a particular social group and
individuals threatened only because they live in a country
with pervasive criminality. While continuing to emphasize
that a particular social group is not cognizable merely
because “‘members have been subjected to harm,’” see M-E-V-G-,
26 I. & N. Dec. at 242 (quoting In re A-M-E- & J-G-U-, 24 I &
N. Dec. 69, 74 (B.I.A. 2007)), the BIA stressed that the
“shared trait of persecution does not disqualify an otherwise
valid social group” and that persecution can be the “catalyst”
for societal recognition. See id. at 243.
In this case, the IJ noted that it seemed that “the
factors [Paloka] relied upon [as] constituting the elements of
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her particular social group are those elements which make her
a good target for criminal opportunistic behavior.” However,
being a victim of a crime or even being a likely target for
criminal opportunistic behavior does not necessarily preclude
the existence of a valid asylum claim if the claimant would
likely be targeted because of her membership in a sufficiently
defined social group. See M-E-V-G-, 26 I. & N. Dec. at 243;
see also Cece, 733 F.3d at 671-72. Indeed, those facing
persecution may often be the most vulnerable to crimes,
especially if the government condones or aids the
perpetrators.
Instead of focusing on the perpetrator’s views, the
recent precedential opinions emphasize that the first step of
the analysis — whether the group is cognizable — focuses
primarily on how the society in which the group exists views
the group. Only at the second step of the analysis — whether
the persecution was “on account of” the victim’s status as a
member of the group — does the perpetrator’s mindset become
the center of attention.
The groups proposed by Paloka based on age and gender
require reconsideration in light of the BIA’s new precedential
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decisions, and that reconsideration would benefit from a
somewhat more extended analysis of Paloka’s claim than has
thus far occurred. That analysis might, for example, consider
the Seventh Circuit’s observation that both gender and youth
are immutable characteristics that fit within the broad
definition set out in Acosta, 19 I. & N. Dec. at 233. See
Cece, 733 F.3d at 671. The BIA might also explain whether it
accepts the IJ’s view that the happenstance arrivals of
helpful neighbors and a shepherd to extricate Paloka from a
dangerous situation indicate that she will not be at risk in
the future.3
A final reason for remand is that Paloka has refined
her particular social group during her appeal. In M-E-V-G-,
the BIA remanded to the IJ, in part, because the petitioner’s
“proposed particular social group has evolved during the
pendency of the appeal.” 26 I. & N. Dec. at 252. Here, too,
3
We can safely assume that on reconsideration the BIA will not
embrace the IJ’s view that to show a “probability” of future
persecution, which he defined as a 50 percent likelihood, Paloka
had to present evidence that half of all unmarried young Albanian
women are being forced into prostitution. See IJ Opinion 19.
Probability of facing persecution does not require a probability of
50 percent. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)
(probability of “well-founded fear” of facing persecution may be as
little as ten percent); Kyaw Zwar Tum v. U.S.I.N.S., 445 F.3d 554,
565 (2d Cir. 2006) (same).
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the petitioner has refined the contours of her proposed social
group during the proceedings to include a specific age range
of 15 to 25, a range that finds support in the evidence. See
Trafficking Report 2008 U.S. State Department Trafficking in
Persons Report (2009), available at
http://www.state.gov/j/tip/rls/tiprpt/2009/ (last accessed
June 6, 2014, and available in Clerk’s Office file). This
group can be evaluated on remand because it is a subclass that
is “specific” and “subsidiary” to the broader class first
proposed. See Steevenez v. Gonzales, 476 F.3d 114, 117 (2d
Cir. 2007); cf. Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005).
We conclude that it is necessary to remand to the BIA
for a redetermination of whether Paloka has identified a
cognizable social group in light of the BIA’s recent
clarifications.4 Of course, in remanding for reconsideration,
we make no determination as to whether Paloka has identified
4
There is no need to remand Paloka’s claim that she was
persecuted because of her status as a young, unmarried women who is
a member of family that was persecuted by the former communist
regime. Neither the BIA nor the IJ denied that claim based on a
failure to establish a cognizable social group. Rather it appears
that they assumed that the group could be cognizable but found that
there was nothing in the record to indicate that she was targeted
because of her family’s political beliefs or previous persecution.
Paloka fails to show that there is substantial evidence to compel
the opposite conclusion.
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or can identify a qualifying “particular social group,” nor
whether she can discharge her burden to prove by credible
evidence that she was persecuted or reasonably fears
persecution “on account of” her membership is such a group,
see 8 U.S.C. § 1101(a)(42)(A).
Conclusion
Accordingly, the decision of the BIA is vacated, and
the case is remanded for reconsideration.
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