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.

- 1 - 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

- 2 - 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.

- 3 - As will be further discussed below, Reyes had the burden of

establishing a "reasonable possibility" of either consequence to

have his removal withheld under

(c).

Reyes requested review of the asylum officer's rejection

of his reasonable fear claim by an IJ. See

(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

- 4 - "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

(a)(1) and (5) applies only to final orders of removal. See,

e.g., Xin Qiang Liu v. Lynch,

(1st Cir. 2015).

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.

(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.,

(1st Cir. 1993).

- 5 - 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).

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,

, 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,

(2021); Nasrallah v. Barr,

(2020).

And at least one circuit has foreclosed review under similar

circumstances. See Bhaktibhai-Patel v. Garland,

(2d Cir. 2022); but see Tomas-Ramos v. Garland,

, 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

- 6 - under § 1252, we bypass the jurisdictional question here because

Reyes's petition "easily fail[s] on the merits." Telles v. Lynch,

(1st Cir. 2016); see also Tacuri-Tacuri v.

Garland,

(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,

(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,

(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

; cf. Tomas-Ramos,

("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

- 7 - 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,

("[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,

(1st Cir. 2019) (quoting INS v. Elias-Zacarias,

(1992)). "We will reverse if the record would compel a

reasonable fact-finder to reach a contrary conclusion." Ordonez-

Quino v. Holder,

(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.

- 8 - Aguilar-de Guillen v. Sessions,

(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

(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,

(1st Cir. 1990).

- 9 - opposition to gang membership cannot form the basis of a particular

social group. See, e.g., Guevara-de Vilorio v. Lynch,

(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,

(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,

(1st Cir. 2022)

(quoting Paiz-Morales v. Lynch,

(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,

(1st Cir. 2010) (stating that "[t]he

relevant inquiry is whether the social group is visible in the

- 10 - society, not whether the alien herself is visible to the alleged

persecutors"); see also Perez-Trujillo v. Garland,

, 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,

(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,

(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,

(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

- 11 - generally inhibit the 'accurate separation of members from

nonmembers'" (quoting Ahmed v. Holder,

(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.

- 12 -