Maria Belen Perez-Zenteno v. U.S. Attorney General
Opinion
The central question raised in this immigration appeal is whether the Petitioners are entitled to asylum on account of being members of a "particular social group" as defined in the Immigration and Nationality Act (INA). Maria Perez-Zenteno ("Perez-Zenteno") and her son (Gerardo Melchor Perez) seek review of a Board of Immigration Appeals (BIA) decision denying their requests for asylum, withholding of removal, and humanitarian asylum. They claim entitlement to asylum because they were persecuted in Mexico on account of membership in a "particular social group," which they defined as all "Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States." The Immigration Judge (IJ) denied relief because, although Perez-Zenteno was beaten and brutally raped and her daughter kidnapped, she failed to prove that she was persecuted on account of membership in a statutorily protected group. The social group offered was neither sufficiently particular nor socially distinct. What's more, the IJ determined Perez-Zenteno failed to establish any nexus between the persecution she suffered and the statutory grounds asserted. The BIA agreed. Because we too agree that Perez-Zenteno has failed to establish membership in a particular social group, as defined by Congress, and because no nexus has been shown, we hold that the petition must be denied.
I.
Maria Perez-Zenteno is a native and citizen of Mexico, from the village of Tzitzio in the state of Michoacán. In 2015, she applied for admission to the United States. On November 10, 2015, the Department of Homeland Security commenced removal proceedings against Perez-Zenteno and her son by filing Notices to Appear, charging them with inadmissibility under
*1305 At an evidentiary hearing conducted by the IJ, Perez-Zenteno claimed that she first came to the United States in 1995 as an eleven-year-old child after her father was killed in Mexico. She stayed for two years and returned to Mexico fearing sexual abuse at the hands of her uncle in the United States. In 2001, she returned to the United States with her husband and young son. They had three more children, all born in Florida, before Perez-Zenteno and her children returned to Mexico in 2007 because her mother became ill. The only family Perez-Zenteno specifically identified as being in the United States after she left was her husband, who continued working at a construction job in Florida.
Perez-Zenteno further testified that in April 2013, while she and her children were living in Mexico, her five-year-old daughter was kidnapped from a supermarket. The kidnappers demanded a ransom of 150,000 pesos. When Perez-Zenteno delivered the ransom, she was abducted, driven outside of town, beaten, and raped. Perez-Zenteno also was threatened, warned not to tell anyone of her attack, and released, to find her daughter returned to her sister's home unharmed. A neighbor then offered to provide protection for 1,000 pesos per month, which Perez-Zenteno paid for approximately a year until she became suspicious that her neighbor was involved in the kidnapping plot. Perez-Zenteno eventually called the police, who discovered a kidnapped man in her neighbor's home, and arrested the neighbor in October 2014. In March 2015, after receiving a phone call threatening her for being a "snitch," Perez-Zenteno fled along with her children to the United States.
The IJ denied the Petitioners' application, concluding that Perez-Zenteno had failed to establish she was the victim of past persecution on account of any statutory ground for asylum, including membership in a cognizable social group. The IJ likewise concluded that Perez-Zenteno had not established a well-founded fear of future persecution on account of any statutorily protected ground, including membership in a particular social group. Although the Immigration Judge found Perez-Zenteno credible as to her rape and fear of returning to Mexico, the IJ concluded that Perez-Zenteno's proposed social group -- "Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States" -- was not cognizable under the INA. The IJ found that although the group might be based on an immutable characteristic -- after all, one cannot change the past experience of having been in the United States or having family in the United States -- the group was defined with insufficient particularity and was not socially distinct. Consequently, the IJ denied Perez-Zenteno's application for asylum and withholding of removal.
Perez-Zenteno appealed to the BIA. In a two-page, non-precedential decision, a single member of the BIA affirmed the IJ's decision. The BIA agreed that Perez-Zenteno had failed to establish that she was targeted on account of membership in a particular social group. The BIA said that "even if the factors of immutability and particularity were met, the respondents did not establish that their claimed group
*1306
is viewed as socially distinct within Mexican society" and that "the group is impermissibly circularly defined by the harm directed at its members." In support of its determination, the BIA cited to its opinion in
Matter of A-M-E- & J-G-U-
,
Perez-Zenteno seeks review in our Court of the denial of asylum, withholding of removal, and humanitarian asylum.
II.
We review the BIA's decision as the final judgment, unless the BIA expressly adopted the IJ's opinion.
Kazemzadeh v. U.S. Att'y Gen.
,
As we have previously held, this
de novo
review is further informed by the principles of deference set forth in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
,
We also review findings of fact under the substantial-evidence test, which requires us to "view the record evidence in the light most favorable to the agency's decision and draw all reasonable inferences in favor of that decision."
Adefemi v. Ashcroft
,
III.
Under the Immigration and Nationality Act, the "Secretary of Homeland Security or the Attorney General may grant asylum to an alien ... if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A)."
A.
Here, the IJ and the BIA agreed that Perez-Zenteno failed to demonstrate that "Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States" were viewed as a socially distinct group in Mexico and that the group was not defined with sufficient particularity.
The antecedent question we confront is the level of deference to afford the BIA's determination. Our law is clear that we defer to reasonable interpretations of the ambiguous statutory phrase "particular social group" set forth in precedential, three-member BIA decisions, including
Matter of Acosta
,
But the general principle that the BIA is entitled to deference in interpreting the meaning of "a particular social group" is not the end of the story. Two years after
Castillo-Arias
, a panel of this Court adopted the view expressed by the Second and Ninth Circuits that single-member, non-precedential BIA decisions -- like the one before us now -- may not be entitled to any deference.
Quinchia v. U.S. Att'y Gen.
,
In
Rotimi
, the Second Circuit similarly applied
Mead
and declined to afford
Chevron
deference to a single-member BIA decision interpreting the phrase "lawfully resided continually" for purposes of a § 212(h) waiver.
Rotimi
,
It is not at all clear that we are obliged to afford deference directly to the single-member decision in this case. As a panel of this Court recently observed, pursuant to
Quinchia
"a single-member Board decision should be deemed to have 'rel[ied] on' existing precedent for
Chevron
purposes only where it is actually dictated -- or 'compelled' -- by an earlier decision."
Barton v. U.S. Att'y Gen.
,
B.
Affording Chevron deference to the BIA's determination in this case, we are satisfied that the Petitioners' claims to asylum must be denied.
The IJ determined and the BIA agreed that Perez-Zenteno failed to establish that she was targeted on account of membership in a particular social group. Although the IJ found her to be a credible witness, the IJ concluded that the proffered social group was not cognizable under the INA. The BIA agreed, ruling that "even if the factors of immutability and particularity were met, the respondents did not establish that their claimed group is viewed as socially distinct within Mexican society," and that "the group is impermissibly circularly defined by the harm directed at its members."
In
Matter of Acosta
, the BIA had first interpreted the phrase "particular social group" to mean "a group of persons all of whom share a common, immutable
*1309
characteristic."
Matter of Acosta
,
The IJ and the BIA reasonably applied these precedents to this case and concluded that Perez-Zenteno had failed to establish that her proffered group was either socially distinct or defined with sufficient particularity. Perez-Zenteno failed to present any evidence even suggesting that the particular social group she had proffered was perceived as being socially distinct in Mexico.
Castillo-Arias
,
Indeed, to the extent the Report made any reference to any group that even arguably could be characterized as discrete, the Report simply identified prisoners, human rights activists, journalists, women, people with disabilities, indigenous people, members of the LGBT community, and children forced into labor. In no way does the Report support the idea that Mexican citizens who traveled to the United States and who had family members who lived in the United States somehow were socially distinct or uniquely targeted for abuse. The Report observed that kidnapping -- the persecution suffered by Perez-Zenteno's daughter - - "remain[s] a serious problem for persons at all socioeconomic levels." Perez-Zenteno has cited to no evidence supporting the idea that "Mexican citizens targeted by criminal groups because they have been in the United States and have families in the United States" are recognized as a socially distinct group.
The IJ and BIA also reasonably determined that Petitioners failed to meet the particularity requirement because the social group they proffered lacked any definable boundaries and actually encompassed a very large percentage of the Mexican population. Finally, the BIA reasonably determined that the Petitioners' formulation was impermissibly circular. "Mexican *1310 citizens targeted by criminal groups because they have been in the United States and have families in the United States" do not comprise a particular social group because its defining attribute is the risk of persecution stemming from being targeted by criminal groups. Rodriguez , 735 F.3d at 1310. The proffered social group is defined in large measure by the risk of persecution. The IJ and BIA determinations were reasonable and -- on the assumption that Chevron applies -- entitled to deference.
IV.
Even if we were to conclude, however, that the IJ and BIA's determinations are not entitled to deference because the ruling was made by a single member of the Board and went substantially beyond its precedential holdings, we would still reach the same conclusion ourselves, and even in the absence of the Acosta framework at that. On any reading of the statute, Perez-Zenteno's proffered definition does not constitute a particular social group.
The phrase "particular social group" was enacted into American law in the Refugee Act of 1980, Pub. L. No. 96-212,
Any analysis of the statutory term "a particular social group" necessarily begins with the text.
See
King v. Burwell
, --- U.S. ----,
The addition of the modifier "particular" suggests some narrowing from the breadth otherwise found in the term "social group." "Particular" means "of, relating to, or being a single definite person or thing as distinguished from some or all others." Particular , Webster's Third New International Dictionary (1966). Thus, a particular social group denotes some characteristic setting the group off in a definite way from the vast majority of society; indeed, "particular" must meaningfully narrow the possibilities or it would be mere surplusage and redundant of the word "group." These limited textual clues, then, tell us that a particular social group must be defined more narrowly.
In
Castillo-Arias
, we explained that a " 'particular social group' should not be a 'catch all' for all persons alleging persecution who do not fit elsewhere. In restricting the grounds for asylum and withholding of deportation based on persecution to five enumerated grounds, Congress could not have intended that all individuals seeking this relief would qualify in some form by defining their own 'particular social group.' "
Castillo-Arias
,
As we see it, any reasonable application of this statute necessarily yields the conclusion that the proffered group is drawn far too broadly to qualify as a particular social group under the INA. The demographic group proposed is sweeping in its breadth and not easily cabined by any obvious guidepost or limiting principle. It is extraordinarily numerous, but we don't even know how large because the Petitioners have not told us, and the group is wholly amorphous because they have filled in none of the blanks. Undeniably, large numbers of Mexican citizens have visited the United States, perhaps numbering in the millions. And many Mexican citizens live in the United States, also perhaps numbering in the millions.
Perez-Zenteno has done nothing to limit or circumscribe this large and diverse group in any way. Indeed, although we know that Perez-Zenteno lived in the United States for roughly eight years, her proposed definition also would encompass Mexican citizens who have only visited the United States, so long as they also have a family member residing in America. What's more, having "family" in the United States is likewise impermissibly unclear. We cannot tell from anything Perez-Zenteno has told us whether it includes only immediate family members or indeed extends to far more distant familial relations.
Some basic demographic figures illustrate the potential scope of this group. As of 2016, more than 11 million United States residents were born in Mexico. Pew Research Center, Facts on U.S. Immigrants, 2016 (2018), available at http://www.pewhispanic.org/2018/09/14/facts-on-u-s-immigrants-current-data. Each of those Mexico-born United States residents likely has a number of family members or indeed extended family members still living in Mexico. And the total population of Mexico as of 2017 was just over 123 million. See UN Statistics Division, United Nations Demographic Yearbook (2017), https://unstats.un.org/unsd/demographic-social/products/dyb/dyb_2017 (estimating the population of Mexico in 2017 as 123,518,000). Thus, the number of Mexican citizens living in Mexico who "have family in the United States" likely constitutes a significant percentage of the total population of Mexico.
Put simply, the Petitioners' proffered social group is amorphous, insufficiently defined, and potentially encompasses a very large number of people who live in Mexico. The Petitioners have failed to come close to meeting their burden of establishing a particular social group that is either immutable, identical, visible, homogeneous, or cohesive. Accordingly, we deny Perez-Zenteno's petition seeking asylum, withholding of removal, and humanitarian asylum. 3
*1312 V.
Although the IJ largely focused its opinion on the Petitioners' failure to define a "particular social group," the IJ also suggested -- and the BIA found that the IJ determined -- that Perez-Zenteno failed to establish a nexus between the persecution suffered, the persecution she claims she will suffer, and any other statutorily protected grounds for asylum. The determination of a persecutor's motive when considering whether an alien is eligible for asylum is essentially factfinding.
See
Sealed Petitioner v. Sealed Respondent
,
We agree with the BIA that even if the Petitioners had properly formulated a "particular social group" -- and on this record they haven't come close to meeting their burden -- their claims still would fail because the record does not support, let alone compel reversal of the IJ's finding that Perez-Zenteno did not demonstrate a nexus between persecution and membership in the proffered group.
See
Mendoza
,
We can identify only two pieces of record evidence that even arguably support a finding of nexus. In her supplemental statement before the evidentiary hearing, Perez-Zenteno claimed that her assailants "told [her] that they knew the identities of [her] children and that [her] husband was in the US." During the hearing, the government's lawyer asked Perez-Zenteno whether she was considered in Mexico to have money because she had just come back from the United States and had a husband who lived in the United States. She simply answered in the affirmative. Perez-Zenteno offered no other evidence, testimonial or otherwise, that remotely suggested she was targeted because she had once lived in the United States or because her husband continued to do so. The long and short of it is that the failure to adequately controvert the nexus finding by the IJ provides an independent basis for affirming the BIA's determination and denying the petition.
*1313 Thus, on this record, the petition for asylum, withholding of removal, and humanitarian asylum must be denied.
PETITION DENIED.
Both the BIA and the Immigration Judge at various points defined the proffered group as "Mexican citizens targeted by criminal groups because they have been in the United States and have families in the United States,
and who are unable to get protection from their government
." This additional language simply duplicates the statutory language defining a refugee as "any person who is outside any country of such person's nationality ... and 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 ...
membership in a particular social group
."
The BIA Practice Manual, last revised in October 2018, has remained unchanged as to the provisions cited by the Ninth Circuit in Garcia-Quintero . See BIA Prac. Man., Ch. 1.3 (rev. 10/16/2018).
At the end of her Blue Brief filed in this Court, Perez-Zenteno suggests that she need not show membership in a particular social group in order to be granted humanitarian asylum. An applicant, who establishes that she is a refugee, may qualify for asylum even when the government has rebutted the presumption of a well-founded fear of future persecution if: (1) "[t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution," or (2) "[t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country."
The BIA did so in a footnote. The IJ found that Perez-Zenteno had "failed to establish a nexus between the persecution that she suffered and the persecution that she fears she will suffer, and any of the statutory grounds for asylum." While it is possible to read from the context of that statement that the IJ was simply referring to the Petitioners' failure to allege a cognizable particular social group, we believe it was reasonable for the BIA to determine that the IJ had made a factual finding on this separate matter too.
Reference
- Full Case Name
- Maria Belen PEREZ-ZENTENO, Gerardo Melchor-Perez, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
- Cited By
- 96 cases
- Status
- Published