Reyes-Ramos v. Garland

United States Court of Appeals
For the First Circuit
No. 18-1830
JOSE ANTONIO REYES-RAMOS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF AN IMMIGRATION JUDGE
Before
Barron, Chief Judge,
Howard and Kayatta, Circuit Judges.
Stephen A. Lagana for petitioner.
Christina P. Greer, with whom Joseph H. Hunt, Assistant
Attorney General, U.S. Department of Justice, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Leslie McKay, Senior Litigation Counsel, Office of
Immigration Litigation, were on brief, for respondent.
January 13, 2023
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted as the respondent.
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HOWARD, Circuit Judge. In his petition for review of an
immigration judge's (IJ) denial of his application for withholding
of removal, Jose Antonio Reyes-Ramos argues that the IJ erred by
concurring with an asylum officer's determination that Reyes did
not have a reasonable fear of persecution or torture. Finding
Reyes's arguments unpersuasive, we deny his petition.
I.
A native and citizen of El Salvador, Reyes entered the
United States without inspection on three occasions. He first
entered in 2005 and the next year was ordered removed in absentia,
after he failed to appear for a hearing. After his eventual
removal by the Department of Homeland Security (DHS) in June 2011,
pursuant to the 2006 removal order, Reyes reentered the United
States without inspection in September of the same year. He was
apprehended the following month and DHS reinstated the 2006 removal
order against him. After his October 2011 apprehension, Reyes
initially expressed fear of persecution or torture if removed to
El Salvador. However, he withdrew his request for a reasonable
fear determination after being detained for two months,
disclaiming his fear of returning to El Salvador and requesting
removal. DHS removed Reyes in January 2012.
Reyes subsequently reentered the United States for a
third time without inspection on an unknown date. DHS apprehended
him in April 2018 after he was arrested in Massachusetts for
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committing a criminal offense. The agency reinstated his 2006
removal order for a second time, and Reyes again expressed fear of
persecution or torture. During his subsequent reasonable fear
interview with the asylum officer, Reyes stated that he feared
returning to El Salvador because of the violence that he suffered
at the hands of gangs that he refused to join. According to Reyes,
MS-13 began recruiting him when he was 18 or 19 years old and
serially terrorized him after he refused to join. They reportedly
beat him to the point of unconsciousness the first time he refused,
leaving permanent scars on his head. Reyes also said that, on
another occasion, gang members shot him in the leg as he fled from
them and threatened to kill him the next time they saw him. While
Reyes was away from his family recovering from his wound, gang
members allegedly told his mother that they would continually
search for Reyes so that they could kill him. Reyes did not report
these incidents to local police, and noted his general belief that
the police could not protect him from gang-inflicted violence. He
recounted that police did not respond when his cousin was kidnapped
and killed and that they responded tardily when his uncle was shot.
He attributed his uncle's death to this delay.
While the asylum officer found Reyes's testimony
credible, the officer nevertheless concluded that Reyes had shown
neither a connection between his claims and a protected ground,
nor that government officials would acquiesce in torturing him.
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As will be further discussed below, Reyes had the burden of
establishing a "reasonable possibility" of either consequence to
have his removal withheld under 8 C.F.R. § 208.31(c).
Reyes requested review of the asylum officer's rejection
of his reasonable fear claim by an IJ. See 8 C.F.R. § 208.31(g).
Reyes argued to the IJ that he was a member of a social group of
"persons [against] who[m] the MS Gang retaliates for failure to
join." In addition to considering Reyes's testimony, the IJ also
reviewed death certificates and medical records that Reyes
submitted to show the murders of family and friends killed by MS-
13 gang members.
In upholding the asylum officer's decision, the IJ
concluded in a written order that, while he believed that Reyes's
"threats and beatings [were] unfortunate" and he was "extremely
sympathetic to the plight of the respondent," there was
insufficient evidence to find that Reyes had been attacked because
of a protected ground, as DHS regulations require. The IJ found
that the harm Reyes suffered "appear[ed] to be motivated by gangs
or organized crime committing heinous crimes to increase their
ranks and power[,] instead of targeting the respondent on any
protected ground."
The IJ also found that Reyes's purported social group
was "insufficiently particular and lack[ed] social distinction."
And the IJ agreed with the asylum officer that there was
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"insufficient evidence in the record to establish a reasonable
possibility that the respondent would be singled out for torture
with the consent, instigation, acquiescence, or willful blindness
of a public official or other person acting in an official
capacity." He also noted that Reyes never contacted the police
and that there was insufficient evidence to show why the police
did not follow up on his cousin's murder. Reyes's petition to
this court followed.
II.
There is a threshold question of whether we have
jurisdiction over Reyes's petition.1 We have often repeated that
our jurisdiction to review orders of removal pursuant to 8 U.S.C.
§ 1252(a)(1) and (5) applies only to final orders of removal. See,
e.g., Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015).
8 C.F.R. § 208.31 details DHS's process for adjudicating
reasonable fear claims following reinstatement of removal. Under
the regulation, a claimant whose removal order has been reinstated,
but who "express[es] a fear of returning to the country of
removal," may have her claim reviewed by an asylum officer.
8 C.F.R. § 208.31(a). If the asylum officer finds in the
We raise this issue notwithstanding the government's
1
concession of jurisdiction. "[A] federal court is under an
unflagging duty to ensure that it has jurisdiction over the subject
matter of the cases it proposes to adjudicate." Am. Policyholders
Ins. v. Nyacol Prods., Inc., 989 F.2d 1256, 1258 (1st Cir. 1993).
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claimant's favor, the officer will refer the matter to an IJ for
full consideration of the request to withhold removal, and the
claimant may appeal an adverse decision of the IJ to the Board of
Immigration Appeals (BIA). Id. at § 208.31(e). But if both the
asylum officer and the IJ find against the claimant, the petitioner
cannot appeal to the BIA, and the IJ will have the final
administrative word. Id. at § 208.31(g)(1). This case sits in
the latter posture. Moreover, Reyes does not dispute that there
is a final order of removal in place and that he is nonetheless
challenging only the credible fear ruling by the IJ.
We have not held definitively whether we can exercise
jurisdiction under § 1252 over the credible fear determination in
this scenario. Cf. Garcia Sarmiento v. Garland, 45 F.4th 560, 563
& n.1 (1st Cir. 2022). The Supreme Court has stated twice in
recent years that withholding-only proceedings do not result in
final orders of removal. See Johnson v. Guzman Chavez, 141 S. Ct.
2271, 2288 (2021); Nasrallah v. Barr, 140 S. Ct. 1683, 1691 (2020).
And at least one circuit has foreclosed review under similar
circumstances. See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 195
(2d Cir. 2022); but see Tomas-Ramos v. Garland, 24 F.4th 973, 980
n.3 (4th Cir. 2022) (finding that an IJ's negative reasonable fear
determination constitutes a "final order"). We nevertheless leave
this question for another day. As we have done in other
immigration cases that raised issues of our authority to review
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under § 1252, we bypass the jurisdictional question here because
Reyes's petition "easily fail[s] on the merits." Telles v. Lynch,
639 F. App'x 658, 659 (1st Cir. 2016); see also Tacuri-Tacuri v.
Garland, 998 F.3d 466, 472 (1st Cir. 2021) ("While federal courts
typically cannot apply 'hypothetical jurisdiction' in terms of
Article III jurisdiction, we can sidestep statutory jurisdiction
when, as here, it makes sense to do so because the resolution on
the merits of the case is straightforward." (quoting Alvarado v.
Holder, 743 F.3d 271, 276 (1st Cir. 2014))).
III.
The parties disagree over the standard of review that we
should apply. Reyes argues for the substantial evidence standard,
which at least the Ninth Circuit employs when reviewing an IJ's
negative reasonable fear determination, see Andrade-Garcia v.
Lynch, 828 F.3d 829, 831 (9th Cir. 2016), while the government
asks us to employ the even more deferential "facially legitimate
and bona fide reason" standard, which the government similarly
urged in Telles, see Telles 639 F. App'x at 662; cf. Tomas-Ramos,
24 F.4th at 981 ("While the government has often taken th[e]
position [that the facially legitimate and bona fide reason
standard should apply] in cases challenging reasonable fear
determinations, it has yet to find a circuit to agree, and our
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court has expressed some skepticism.").2 But this dispute need
not detain us, because, as in Telles, Reyes's claims fail even
under the more petitioner-friendly substantial evidence standard
that he urges. See Telles, 639 F. App'x at 662 ("[W]e need not
and do not reach the question of whether this standard should apply
to an IJ's concurrence with an [asylum officer's] negative
reasonable fear determination because [petitioner's] claim fails
even under the substantial evidence standard he says should
apply.").
To that end, when applying the substantial evidence
standard, we will uphold findings that are "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Enamorado-Rodriguez v. Barr, 941 F.3d
589, 595 (1st Cir. 2019) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)). "We will reverse if the record would compel a
reasonable fact-finder to reach a contrary conclusion." Ordonez-
Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014).
Finally, although Reyes urges us to apply substantial-
evidence review, we have held that a "conclusion regarding the
definition and scope of the statutory term 'particular social
group' is a purely legal determination that we review de novo."
Under this standard, the government argues, we should not
2
review the IJ's treatment or balancing of factors. Rather, we
should instead confine our review to the facial plausibility of
the IJ's reasoning.
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Aguilar-de Guillen v. Sessions, 902 F.3d 28, 33 (1st Cir. 2018).
We therefore review de novo, to the extent that Reyes challenges
the IJ's rejection of his proposed definition of the relevant
social group. See 8 C.F.R. § 208.31(c).
IV.
Reyes argues that the IJ erred by dismissing his gang-
related claim "wholesale," ostensibly without evaluating the
merits of his proposed social group.3
A.
Reyes's argument that the IJ dismissed his persecution
claims out of hand because they were gang-related is belied by the
record. The IJ thoughtfully reviewed Reyes's claims: He accepted
and reviewed the death certificates and medical documents that
Reyes submitted, verbally confirmed key parts of Reyes's
testimony, and allowed Reyes to offer new information, ultimately
crediting his testimony. It was only after reviewing this record
that the IJ found that Reyes's articulated social group -- "persons
[against] who[m] the MS Gang retaliates for failure to join" --
did not qualify because this court has repeatedly found that mere
3 Reyes also alludes in one line of his brief to an argument
that the IJ erred by prematurely requiring him to articulate the
social group to which he belonged. We need not address this
argument, since we have long warned "that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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opposition to gang membership cannot form the basis of a particular
social group. See, e.g., Guevara-de Vilorio v. Lynch, 674 F. App'x
1, 4 (1st Cir. 2017) (noting that we have "'decided a number of
cases that have rejected the argument that people who oppose gang
membership or recruitment are members of a particular social
group'" (quoting Beltrand-Alas v. Holder, 689 F.3d 90, 93 (1st
Cir. 2012))).
B.
On de novo review, we also conclude that the IJ correctly
rejected Reyes's proposed social group under this court's
precedent. "For a proposed social group to be cognizable, an
applicant must 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.'" Chavez v. Garland, 51 F.4th 424, 432 (1st Cir. 2022)
(quoting Paiz-Morales v. Lynch, 795 F.3d 238, 244 (1st Cir. 2015)).
As the IJ recognized, Reyes's proposed group falls short of this
definition because it "is insufficiently particular and lacks
social distinction."
First, Reyes failed to show that his group was socially
distinct. He focused instead on his visibility to his attackers,
which does not suffice under our precedent. See Mendez-Barrera v.
Holder, 602 F.3d 21, 27 (1st Cir. 2010) (stating that "[t]he
relevant inquiry is whether the social group is visible in the
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society, not whether the alien herself is visible to the alleged
persecutors"); see also Perez-Trujillo v. Garland, 3 F.4th 10, 17-
18 (1st Cir. 2021) (holding that a proposed social group of "young,
male, Salvadoran students who are forcibly recruited into gangs,
refuse gang orders, and leave the gang" lacked social visibility,
as that group was not "generally recognized in the community as a
cohesive group" (second quoting Larios v. Holder, 608 F.3d 105,
109 (1st Cir. 2010))).
Reyes's group also lacked particularity because he
defined the group ambiguously, leaving open, for example, what
conduct counted as retaliation and what level of refusal
constituted sufficient resistance to provoke retaliation from gang
members. See Mendez-Barrera, 602 F.3d at 27 (finding that
petitioner's proposed social group of "young women recruited by
gang members who resist such recruitment" lacked particularity
because its "loose description" left open "questions about who may
be considered 'young,' the type of conduct that may be considered
'recruit[ment],' and the degree to which a person must display
'resist[ance]'" (alterations in original)); accord Aguilon-Lopez
v. Lynch, 664 F. App'x 14, 15, 18 (1st Cir. 2016) (finding that a
proposed social group of "residents of Guatemala who have been
threatened with gang violence and recruitment to a gang, and have
refused" lacked particularity because "[t]hese group
characteristics are highly amorphous, largely subjective, and
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generally inhibit the 'accurate separation of members from
nonmembers'" (quoting Ahmed v. Holder, 611 F.3d 90, 94 (1st Cir.
2010))). We therefore find no fault with the IJ's reasoning under
our precedent.
V.
For the foregoing reasons, Reyes's petition for review
is denied.
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