Jose Orellana-Monson v. Eric Holder, Jr.
2012 U.S. App. LEXIS 12965
| 5th Cir. | 2012Background
- Jose Orellana-Monson and his brother Andres, Salvadoran citizens, entered the U.S. on Oct. 22, 2005 and faced removal with asylum claims based on political opinions and membership in a particular social group.
- They argued they would be persecuted in El Salvador due to membership in a social group formed by Gang Mara 18 recruitment resistance, or as siblings/family of such individuals.
- Mara 18 is a violent gang active in El Salvador, recruiting teens; the brothers alleged threats and coercion by a gang member named Juan, including forced robbery at gunpoint.
- Their grandmother and Teresa Turcios testified that return would leave them homeless and without support; Mara 18 threats were directed at their family.
- The IJ found credibility but denied asylum; the BIA affirmed dismissal; the Fifth Circuit previously remanded for BIA reasoning on social-group grounds; on remand BIA again denied asylum and withholding.
- The court reviews the BIA’s interpretation of “particular social group” under Chevron deference and concludes the BIA’s social-visibility and particularity test is a permissible construction, affirming the denial of asylum and withholding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Chevron deference to BIA reading of PSG | Orellana-Monson contends BIA’s PSG standard is an improper departure. | BIA’s reading is a permissible construction of the statute; entitled to deference. | BIA interpretation entitled to Chevron deference. |
| Whether proposed groups meet particularity and social visibility | Jose’s group: Salvadoran males 8–15 recruited by Mara 18 but refused; Andres’: family members of Jose. | Groups are not sufficiently particular or socially visible. | Proposed groups fail the BIA’s particularity and social-visibility tests. |
| Consequences for asylum and withholding | If groups qualified, asylum/withholding could be granted. | Without PSG, asylum and withholding are unavailable. | Denying PSG leads to denial of asylum and withholding. |
Key Cases Cited
- In re S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) (framework for social group: social visibility and particularity)
- In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007) (social group criteria; visibility and particularity considered)
- In re E-A-G-, 24 I. & N. Dec. 591 (BIA 2008) (expansion of social group analysis under BIA framework)
- Mwembie v. Gonzales, 443 F.3d 405 (5th Cir. 2006) (definition of protected social group; immutable characteristics)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (Chevron step two applicability to agency interpretations)