Perez-Rabanales v. Sessions

United States Court of Appeals
For the First Circuit
No. 17-1803
ANA MARINA PEREZ-RABANALES,
Petitioner,
v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Kevin P. MacMurray, Daniel W. Chin, and MacMurray & Associates
on brief for petitioner.
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, U.S. Department of Justice, Shelley R. Goad, Assistant
Director, Office of Immigration Litigation, and Carmel A. Morgan,
Trial Attorney, Office of Immigration Litigation, on brief for
respondent.
January 26, 2018
SELYA, Circuit Judge. The petitioner, Ana Marina Perez-
Rabanales, a Guatemalan national, seeks judicial review of a final
order of the Board of Immigration Appeals (BIA) denying her
application for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (CAT). We
conclude that the petitioner has failed to show that the claimed
persecution took place on account of her membership in a cognizable
social group. Based largely on that conclusion, we hold that the
BIA's final order is in accordance with law and is supported by
substantial evidence in the record. Consequently, we deny the
petition.
I. BACKGROUND
The petitioner resided in Guatemala until April of 2014,
when she attempted to enter the United States. She claims that in
2003, a man named Rodrigo De Leon grabbed her as she was walking
home from church and raped her. She did not contact the police
because she believed that women have no rights in Guatemala and
that the police would be unwilling to protect her. To avoid future
encounters with De Leon, she altered her route to church.
Notwithstanding her precautions, De Leon tracked her down and raped
her a second time.
The petitioner became pregnant as a result of this second
rape. She told her mother about both the pregnancy and De Leon's
assaults. Soon thereafter, De Leon left Guatemala. But as word
- 2 -
spread that the petitioner was carrying De Leon's child, she began
to experience abuse from De Leon's family. Three of his relatives
beat her with sticks and threatened her life. De Leon was married
at the time of the rapes, and she believed that his relatives,
upon learning of her pregnancy, blamed her for "wreck[ing] his
home."
The petitioner gave birth to her son, Juanfer Perez, in
March of 2004. At an unspecified later date in 2007, she was
attacked by De Leon's sister-in-law, who pulled her hair, threw
her to the ground, and struck her with a rock. An x-ray taken at
a local hospital revealed that blood had pooled in the petitioner's
brain as a result of the attack. Although she seldom went outdoors
following this incident for fear of another confrontation, De
Leon's relatives continued to scream at her from outside her home.
The petitioner subsequently met Raoul Mauricio, with
whom she lived and had a child (Astrid Mauricio). De Leon's family
continued harassing her, and the harassment persisted after Raoul
Mauricio emigrated to the United States in 2010. The petitioner
recalls that members of De Leon's family told her that "now that
you are alone, we can deal with you, bitch."
On or about April 26, 2014, the petitioner, accompanied
by her minor daughter Astrid Mauricio, crossed the border into
Texas and entered the United States without inspection. She was
detained upon entry and placed in removal proceedings. Conceding
- 3 -
removability, she cross-applied for asylum, withholding of
removal, and CAT protection. In support, she claimed both past
persecution and a well-founded fear of future persecution on
account of her membership in a particular social group.
At the conclusion of her removal hearing, the
immigration judge (IJ) found the petitioner credible, but denied
relief. The IJ concluded that the petitioner was ineligible for
either asylum or withholding of removal because she was unable to
show that the harm she suffered in Guatemala was on account of a
statutorily protected ground. The IJ also concluded that the
petitioner did not qualify for CAT protection because she had not
established a likelihood that, if repatriated, she would be
subjected to torture with the consent, acquiescence, or willful
blindness of a public official. Following the petitioner's
unsuccessful appeal to the BIA, she prosecuted this petition for
judicial review.
II. ANALYSIS
Judicial review in immigration cases typically focuses
on the final decision of the BIA. See Cabrera v. Lynch, 805 F.3d
391, 393 (1st Cir. 2015). "But where, as here, the BIA accepts
the IJ's findings and reasoning yet adds its own gloss, we review
the two decisions as a unit." Id. (quoting Moreno v. Holder, 749
F.3d 40, 43 (1st Cir. 2014)). We proceed accordingly.
- 4 -
In the course of our review, "[c]laims of legal error
engender de novo review, with some deference to the agency's
expertise in interpreting both the statutes that govern its
operations and its own implementing regulations." Id. Factual
findings are reviewed for substantial evidence. See López-Castro
v. Holder, 577 F.3d 49, 52 (1st Cir. 2009). "Under this highly
deferential standard, we must accept the BIA's findings so long as
they are 'supported by reasonable, substantial, and probative
evidence on the record considered as a whole.'" Nikijuluw v.
Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). Thus, the agency's factual
findings will not be disturbed unless "the record is such as to
compel a reasonable factfinder to reach a contrary determination."
Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012).
To establish her eligibility for asylum, an alien must
show that she is a refugee as defined by the Immigration and
Nationality Act. See 8 U.S.C. § 1101 (a)(42)(A); see also Villa-
Londono v. Holder, 600 F.3d 21, 24 (1st Cir. 2010). "A refugee is
a person who cannot or will not return to her home country 'because
of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.'" Olujoke v. Gonzales, 411 F.3d 16,
21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)).
- 5 -
Here, the petitioner pins her hopes on the fourth of
these five statutorily protected grounds: membership in a
particular social group. The Immigration and Nationality Act does
not define what constitutes membership in a particular social
group. Decisional law has filled this void: to make out a
cognizable social group, an alien must show that the group's
members share a common immutable characteristic, see Paiz-Morales
v. Lynch, 795 F.3d 238, 243 (1st Cir. 2015); that the group can be
defined with particularity, see id.; and that the group is socially
distinct, see id.; see also Matter of M-E-V-G-, 26 I. & N. Dec.
227, 232 (BIA 2014). Our cases have consistently employed this
tripartite formulation in passing upon the cognizability of social
groups. See, e.g., Granada-Rubio v. Lynch, 814 F.3d 35, 38 (1st
Cir. 2016); Paiz-Morales, 795 F.3d at 243-44; Mendez-Barrera v.
Holder, 602 F.3d 21, 25 (1st Cir. 2010).
In the case at hand, the petitioner's claims are premised
on her membership in a social group that she describes as
constituting "Guatemalan women who try to escape systemic and
severe violence but who are unable to receive official protection."
Both the IJ and the BIA concluded that this proffered social group
was not legally cognizable. As we explain below, this conclusion
is in accordance with law and is supported by substantial evidence.
The BIA has defined a common, immutable characteristic
as "one that the members of the group either cannot change, or
- 6 -
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). We assume, favorably to the
petitioner, that she has demonstrated a common, immutable
characteristic amongst members of her proffered social group:
gender. This assumption appears warranted since the BIA has
recognized gender as sufficient for this purpose. See Matter of
A-R-C-G-, 26 I. & N. Dec. 388, 392 (BIA 2014).
Even so, we are mindful that "the social group concept
would virtually swallow the entire refugee definition if common
characteristics, coupled with a meaningful level of harm, were all
that need be shown." Paiz-Morales, 795 F.3d at 243 (quoting Matter
of M-E-V-G-, 26 I. & N. Dec. at 231). To avoid such overbreadth,
a cognizable social group must also satisfy the particularity and
social distinctiveness requirements. See id. The petitioner's
proffered social group fails to satisfy either of these
prerequisites.
The particularity requirement seeks to determine whether
a proffered social group can be described in a manner sufficiently
unique to ensure that the group would be recognized in its own
society as a discrete class of persons. See Matter of S-E-G-, 24
I. & N. Dec. 579, 584 (BIA 2008). If the description of the group
is so amorphous as to preclude a rational determination of group
membership, the particularity requirement is not met. See id. It
- 7 -
follows, we think, that a proffered social group is not
sufficiently particular if it is broad to the point of
indeterminacy. See Tay-Chan v. Holder, 699 F.3d 107, 112 (1st
Cir. 2012) (holding that a group consisting of "victims of gang
threats and possible extortion" was overly broad and, thus,
insufficiently particular). The petitioner's proffered social
group potentially encompasses all women in Guatemala, as any woman
in Guatemala may fall victim to violence and find herself unable
to obtain official protection. The amorphous nature of this
sprawling group precludes determinacy and renders the group
insufficiently particular.
Nor is this the only shortcoming in the petitioner's
attempt to construct a cognizable social group. The social
distinctiveness requirement demands that the proffered group be
perceived as a group by the society in which it exists. See Vega-
Ayala v. Lynch, 833 F.3d 34, 39-40 (1st Cir. 2016). This element
turns on "whether members of a particular group 'are set apart, or
distinct, from other persons within the society in some significant
way.'" Id. at 39 (quoting Granada-Rubio, 814 F.3d at 39). The
test is whether, "if the common, immutable characteristic were
known, those with the characteristic in the society in question
would be meaningfully distinguished from those who do not have
it." Id. at 39-40.
- 8 -
The petitioner argues that her status as a woman who
feels unable to seek official recourse placed her in a socially
visible group within her society in Guatemala. She relies on
Matter of A-R-C-G- to buttress her proposition that a particular
social group may consist of women subject to violence. See,
Matter of A-R-C-G-, 26 I. & N. Dec. at 390-94 (holding that
"married women in Guatemala who are unable to leave their
relationship" may constitute a cognizable social group). The BIA
rejected this attempted comparison, finding that the petitioner's
proffered social group — unlike the social group recognized in
Matter of A-R-C-G- — lacks any socially visible characteristics
independent of the harm of which the petitioner complains.
We agree. Comparing the petitioner's proffered social
group to the social group found cognizable in Matter of A-R-C-G-
is like comparing carrots to cucumbers. The alien in Matter of A-
R-C-G- was able to show that the group in which she claimed
membership — "married women in Guatemala who are unable to leave
their relationship" — was viewed by her society as a discrete class
of persons. Id. The members' status as women forced to remain in
their marriages left them uniquely vulnerable to persecution — a
fact that was easily recognizable by Guatemalan society. See id.
at 394 (noting that Guatemala's "culture of machismo and family
violence" and a consistent failure on the part of law enforcement
- 9 -
to protect married women from these offenses contribute
significantly to the social distinctiveness of the group).
Here — unlike in Matter of A-R-C-G- — the petitioner's
proffered social group is defined by the persecution of its
members. This distinction has decretory significance. A
sufficiently distinct social group must exist independent of the
persecution claimed to have been suffered by the alien and must
have existed before the alleged persecution began. See Burbiene
v. Holder, 568 F.3d 251, 254 (1st Cir. 2009); Rreshpja v. Gonzales,
420 F.3d 551, 556 (6th Cir. 2005); Matter of W-G-R-, 26 I. & N.
Dec. 208, 215 (BIA 2014); see also Escobar v. Holder, 657 F.3d
537, 545 (7th Cir. 2011) (noting that "[w]here a proposed group is
defined only by the characteristic that it is persecuted, it does
not qualify as a 'social group'"). The petitioner has offered no
evidence to show that the members of her proffered social group
("Guatemalan women who try to escape systemic and severe violence
but who are unable to receive official protection") — unlike the
members of the social group recognized in Matter of A-R-C-G- —
were viewed by Guatemalan society as either distinct or uniquely
vulnerable prior to the commission of the acts of persecution of
which they complain. Consequently, the petitioner's proffered
social group fails to satisfy the social distinctiveness
requirement.
- 10 -
That ends this aspect of the matter. The petitioner's
failure to satisfy both the particularity and the social
distinctiveness requirements defeats her attempt to qualify as a
refugee through membership in a particular social group.1
As an attempted fallback, the petitioner argues that the
agency erred in failing to analyze her claim of past persecution.
The Immigration and Nationality Act, though, does not provide a
pathway to asylum for all individuals who have suffered harm severe
enough to rise to the level of persecution. See Sugiarto v.
Holder, 586 F.3d 90, 95 (1st Cir. 2009). To warrant such relief,
the claimed harm must have been causally connected to one of the
five statutorily protected grounds. See Lopez Perez v. Holder,
587 F.3d 456, 462 (1st Cir. 2009). Absent such a nexus, a free-
floating finding of persecution is not itself sufficient to pave
the way for asylum. See Sugiarto, 586 F.3d at 95. Because the IJ
and the BIA supportably found that the petitioner failed to
establish a nexus between the claimed harm and a statutorily
protected ground, there was no error in forgoing an analysis of
past persecution.
1 In an effort to change the trajectory of the debate, the
petitioner suggests that she may qualify for relief as a member of
a different social group: "victims of a crime." Because the
petitioner proffers this alternative description for the first
time in this court, we lack jurisdiction to consider it. See Villa-
Londono, 600 F.3d at 25.
- 11 -
So, too, the IJ and the BIA did not err in declining to
reach the issue of humanitarian parole. Since humanitarian parole
requires a showing of past persecution on account of a statutorily
protected ground, see Ordonez-Quino v. Holder, 760 F.3d 80, 96
(1st Cir. 2014), no separate analysis was needed to warrant the
dismissal of this claim.
Having disposed of the petitioner's application for
asylum, we need not linger long over her application for
withholding of removal. "[C]laims for withholding of removal
require a higher level of proof than claims for asylum. It follows
that if a claim for asylum is rejected on the merits, a counterpart
claim for withholding of removal must necessarily fail." Villa-
Londono, 600 F.3d at 24 n.1; accord Rodriguez-Ramirez v. Ashcroft,
398 F.3d 120, 123 (1st Cir. 2005). Because the petitioner's asylum
claim fails on its merits, her counterpart claim for withholding
of removal fails as well.
Finally, both the IJ and the BIA rejected the
petitioner's claim for CAT protection, concluding that she had not
shown a likelihood that she would be subject to torture upon her
return to Guatemala at the instigation or with the acquiescence of
a government official. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a).
In this court, the petitioner has not advanced any developed
argumentation relating to this claim. Consequently, we deem it
abandoned. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010).
- 12 -
III. CONCLUSION
We need go no further. Although the petitioner presents
a sympathetic case, it is not a case that demonstrates her
entitlement to the relief that she seeks. Accordingly, we deny
the petition for judicial review.
So Ordered.
- 13 -