Philome Pierre v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16241 ELEVENTH CIRCUIT
JUNE 24, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A088-003-991, A088-003-992
PHILOME PIERRE,
MARIE DOR CANGE PIERRE,
AGNODESKY PIERRE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 24, 2011)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Philome Pierre, a native and citizen of Haiti, petitions for review of the final
order of the Board of Immigration Appeals (“BIA”), which affirmed the
Immigration Judge’s (“IJ”) denial of his claims for asylum and withholding of
removal under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and
relief under the United Nations Convention Against Torture. The IJ rejected
Pierre’s application for relief based on membership in a particular social group,
finding that he and his family were ineligible for asylum, despite the fact that he
suffered past persecution at the hands of Haiti’s anti-government group, the
Lavalas group. The IJ found that Pierre’s purported social group, namely,
employees at the U.S. Embassy in Haiti, was not a particular social group because
it was not a group readily identifiable in society. The IJ also found that the
persecution that Pierre suffered was a risk normally associated with his
employment as a uniformed security guard at the embassy. The BIA affirmed the
IJ’s decision without opinion.
When the BIA affirms an immigration judge’s decision without opinion, the
immigration judge’s decision is reviewed as the final order of the agency.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). To the extent
that the IJ’s decision was based on a legal determination, we conduct a de novo
review. Castillo-Arias, 446 F.3d at 1195. We review factual determinations under
the substantial evidence test, and will affirm the decision if it is supported by
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reasonable, substantial, and probative evidence on the record as a whole.
Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). Under this
test, we view all evidence in the light most favorable to affirming the agency’s
decision and will reverse the IJ’s findings “only when the record compels” it.
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). We “cannot
find, or consider, facts not raised in the administrative forum, nor can we reweigh
the evidence from scratch.” Id. Even if the evidence could support multiple
conclusions, we will affirm the agency’s decision unless there is no reasonable
basis for the decision. Id. at 1029.
The Attorney General or Secretary of Homeland Security has discretion to
grant asylum if the alien meets the definition of “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). Refugee is defined as
any person who is outside any country of such person’s nationality . . .
who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of that 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.
8 U.S.C. § 1101(a)(42)(A).
The asylum applicant carries the burden of establishing asylum eligibility by
proving his status as a refugee under the statute. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). To establish asylum eligibility based on past
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persecution, the applicant must prove that (1) he was persecuted, and (2) that the
persecution was on account of a protected ground, including race, religion,
nationality, political opinion, or membership in a particular social group. Id. To
establish a nexus between the persecution and the protected ground, an alien
seeking asylum must demonstrate that one of the statutorily enumerated grounds
“was . . . at least one central reason” for his persecution. See INA
§ 208(b)(1)(B)(i); 8 U.S.C. § 1158(b)(1)(B)(i).
The BIA has defined persecution on account of membership in a particular
social group as “persecution that is directed toward an individual who is a member
of a group of persons all of whom share a common, immutable characteristic.”
Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other
grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The
immutable characteristic must be “one that 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.(a) Whether we should continue to apply the BIA’s social visibility
criterion to determine whether a particular social group has been
established
On review, Pierre argues that the BIA’s social visibility criterion
requirements are arbitrary, inconsistent, and contrary to the law, and accordingly
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requests that we overturn precedent upholding the BIA’s definitions of a particular
social group.
Congress did not expressly define what constitutes a “particular social
group,” pursuant to 8 U.S.C. § 1231(b)(3)(A), INA § 241(b)(3)(A). Following
Acosta, the BIA further defined its requirements for a particular social group,
holding that “membership in a purported social group requires that the group have
particular and well-defined boundaries, and that it possess a recognized level of
social visibility.” Matter of S-E-G-, 24 I. & N. 579, 582 (BIA 2008). The
particularity requirement is defined as “whether the proposed group can accurately
be described in a manner sufficiently distinct that the group would be recognized,
in the society in question, as a discrete class of persons.” Id. at 584. The social
visibility requirement asks whether the shared characteristic of the group is
generally recognized by others in the community and whether the members of the
group are perceived as such by society. Id. at 586.
In Castillo-Arias, we affirmed the BIA’s definitions and requirements for
establishing a particular social group. 446 F.3d at 1196-97. A panel of this Court
held that the BIA’s definition “strikes an acceptable balance between (1) rendering
‘particular social group’ a catch-all for all groups who might claim persecution,
which would render the other four [statutorily enumerated] categories meaningless,
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and (2) rendering ‘particular social group’ a nullity by making its requirements too
stringent or too specific.” Id. at 1197.
In this Circuit, a panel is bound by prior panel decisions.
United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). We must
follow prior panel decisions until such time as they are overruled by either this
Court sitting en banc or the United States Supreme Court. Cargill v. Turpin, 120
F.3d 1366, 1386 (11th Cir. 1997).
Here, because Castillo-Arias has not been overruled by this Court sitting en
banc or by the Supreme Court, we are bound to apply this precedent. See Cargill,
120 F.3d at 1386. We must accordingly continue to apply the BIA’s definition of a
particular social group and reject Pierre’s argument that the social visibility
criterion should not be considered in this appeal. See Hansen, 262 F.3d at 1248-
50.
(b) Whether Pierre met the BIA’s requirements for social visibility by
establishing that he was one of a group of uniformed watchmen at
the U.S. Embassy in Haiti
Pierre argues that he was socially visible because he wore a uniform while
performing his duties as a watchman at the United States Embassy in Haiti, and
that he qualifies as a member of a particular social group under the Acosta
formulation because of his immutable characteristic as a past uniformed employee
at the embassy.
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Based on the BIA’s particularity and social visibility criterion for
establishing a particular social group, in some circumstances, a group of uniformed
security guards working at an embassy could qualify as a particular social group.
See S-E-G-, 24 I. & N. at 582, 586. Here, however, the fact that Pierre was a
uniformed security guard does not, without more evidence, establish that the group
he was a member of would be generally recognized and perceived as a group in
their community. See id. Because Pierre failed to present evidence or testimony
establishing that his alleged group was socially visible, the agency’s finding that
Pierre was not entitled to asylum relief as a member of a particular social group
was supported by substantial evidence in the record, and accordingly, we affirm.1
See Adefemi, 386 F.3d at 1027; Al Najjar, 257 F.3d at 1284.
AFFIRMED.2
1
Because we find that Pierre failed to meet his burden of establishing that he was
persecuted based on membership in a particular social group, we need not address the issue of
whether the district court erred in finding that his persecution based on membership in a
particular social group was a risk normally associated with his employment.
2
Pierre’s request for oral argument is denied.
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