Garcia-Callejas v. Holder

United States Court of Appeals
For the First Circuit
No. 11-1084
JUAN ANTONIO GARCIA-CALLEJAS,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Lipez and Howard,
Circuit Judges.
Robert M. Warren on brief for petitioner.
Anthony P. Nicastro, Senior Litigation Counsel, Tony West,
Assistant Attorney General, Civil Division, and Dana M. Camilleri,
Office of Immigration Litigation, Civil Division, Department of
Justice, on brief for respondent.
January 24, 2012
Per Curiam. Juan Antonio Garcia-Callejas, a native and
citizen of El Salvador, challenges a 2009 decision by the Board of
Immigration Appeals ("the Board") denying his application for
withholding of removal. Garcia-Callejas was born in El Salvador
and entered the United States illegally on or about May 9, 2006.
The Department of Homeland Security brought removal proceedings.
8 U.S.C. § 1182(a)(6)(A)(i) (2006). Garcia-Callejas conceded
removability and filed an application for withholding of removal
and Convention Against Torture ("CAT") protection.1 See 8 C.F.R.
§§ 1208.16-18 (2011).
At the hearing before an immigration judge ("IJ") Garcia-
Callejas' central claim was that he would be harmed by criminal
gangs, prevalent in El Salvador, whose attempts to recruit him he
had resisted before he left for the United States. He also
asserted that the gangs would perceive him as wealthy because of
his time in the United States and therefore subject him to further
threats and violence. The IJ held that his fear was genuine, but
that there was neither a sufficient likelihood of harm nor was the
feared harm directed at a statutorily protected social group. The
Board affirmed on the latter ground without reaching the former.
1
In this court, Garcia-Callejas has not developed his CAT
relief claim, which was rejected by the immigration judge and the
Board. Accordingly, we treat the issue as waived. See Lopez Perez
v. Holder, 587 F.3d 456, 463 (1st Cir. 2009).
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As Garcia-Callejas frames his claim, he must establish
that his "life or freedom would be threatened . . . because of
[his] . . . membership in a particular social group." 8 U.S.C. §
1231(b)(3)(A). Here, the category to which Garcia-Callejas seeks
to assign himself, whether as target of gang recruitment or a
returnee perceived as wealthy, does not constitute a "social group"
under the Board's precedents, which have several times been
affirmed by this court. This is so regardless of the degree of
threat (or lack of it) and the government's responsibility (or lack
of it) for the alleged threat.
The Board and the courts have grappled regularly with the
meaning and application of the "social group" concept as used in
the statute; the "social group" concept, like companion categories
in the statute not here in issue ("race, religion,
nationality . . . or political opinion," 8 U.S.C. § 1231(b)(3)(A)),
aims to identify those whom the statute is designed centrally to
protect. There are criteria, but they are inherently rather
general. E.g. Scatambuli v. Holder, 558 F.3d 53, 58-60 (1st Cir.
2009).2
2
In Scatambuli, we identified four factors used by the Board
to determine whether a claimed group constitutes a legally
cognizable social group: (1) immutability; (2) social visibility;
(3) sufficient particularity; and (4) that the group not be defined
exclusively by the fact that its members have been targeted for
persecution.
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Accordingly, guidance is most easily obtained from their
application in particular cases where such precedents exist. And
here our own decisions are directly in point. We have previously
rejected the proposed social group of "young women recruited by
gang members who resist such recruitment" in El Salvador. Mendez-
Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010); see also Larios
v. Holder, 608 F.3d 105, 108-09 (1st Cir. 2010) ("young Guatemalan
men recruited by gang members who resist such recruitment"); Díaz
Ruano v. Holder, 420 F. App'x 19, 21-22 (1st Cir. 2011)
(unpublished opinion) ("young male[s] sought out for information
and recruitment by the criminal gang of Guatemala").
We have also rejected social groups based solely on
perceived wealth, even if signaling an increased vulnerability to
crime. Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011); see
also Perez-Valenzuela v. Holder, 363 F. App'x 759, 760 (1st Cir.
2010) (unpublished opinion) ("Guatemalan m[e]n . . . perceived by
gang members to have disposable money available"); López-Castro v.
Holder, 577 F.3d 49, 54 (1st Cir. 2009) ("hostile treatment based
on economic considerations").
These decisions, in turn, are consistent with established
Board precedent, In re E-A-G-, 24 I. & N. Dec. 591 (BIA 2008); In
re S-E-G-, 24 I. & N. Dec. 579 (BIA 2008); In re A-M-E- & J-G-U-,
24 I. & N. Dec. 69 (BIA 2007), and the Board is entitled to
deference on its reasonable interpretations of ambiguous statutory
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language, such as that in issue here. Scatambuli, 558 F.3d at 58;
see also Sicaju-Diaz, 663 F.3d at 4 (citing INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999)).
On this appeal, Garcia-Callejas has (impermissibly)
adjusted, although modestly, the definition of his proposed social
group, describing it as including "a person disfigured in the
United States who would be subject to persecution because of the
community's perception that he has wealth due to his personal
injury settlement and persecution young male with information they
want and for recruitment [sic]." The reference to a perceived
settlement adds little, and the references to both the settlement
and "information" are neither explained nor obviously relevant.
There is no point repeating a full analysis of the group
in each successive case where the underlying issue is materially
identical to several already decided in this circuit. If there is
supervening authority from the Supreme Court or other reason for
this court en banc to alter its prior precedent, these arguments
ought to be presented; but mere repetition of positions already
rejected serves no purpose and warrants per curiam treatment.
The petition for review is denied.
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