Paiz-Morales v. Lynch
2015 U.S. App. LEXIS 13242
| 1st Cir. | 2015Background
- Elmer Humberto Paiz-Morales, a Guatemalan national who entered the U.S. unlawfully in 1993, applied for asylum, withholding of removal, and CAT protection; an IJ found him credible but denied asylum/withholding and granted voluntary departure.
- His persecution claim arose from repeated threats, beatings, and a neck cut inflicted by anti-government guerrillas in Guatemala when he was a minor; he left Guatemala in 1993.
- The IJ concluded Paiz-Morales failed to show nexus to a protected ground, no government-perpetrated torture, and no well-founded fear of future persecution; Paiz-Morales appealed to the BIA.
- Before the BIA, Paiz-Morales argued refugeability based on membership in a proposed particular social group: “members opposed to gang membership,” asserting gang members could identify opponents by clothing/tattoos.
- The BIA affirmed, holding the proposed group lacked the required particularity (and was overbroad/amorphous), that Paiz-Morales failed to show past persecution or a well-founded fear, and that he did not meaningfully challenge the IJ’s CAT ruling.
- Paiz-Morales sought judicial review; the First Circuit applied substantial-evidence review and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed group "members opposed to gang membership" is a legally cognizable particular social group | Paiz-Morales: group defined by opposition to gangs; gang members can identify opponents by clothing/tattoos | Government: group is amorphous, overbroad, lacks particularity and definable boundaries | Court: Group lacks particularity; BIA decision supported by substantial evidence |
| Whether remand required due to BIA’s shift from "social visibility" to "social distinction" terminology | Paiz-Morales: matter of M-E-V-G is new law requiring remand for reconsideration under clarified standard | Government: change is terminological clarification, not a substantive departure | Court: No remand — M-E-V-G clarified rather than changed the rule; neither IJ nor BIA required literal ocular visibility |
| Whether CAT claim is reviewable here | Paiz-Morales: asserted CAT protection in brief to court | Government: CAT claim was not exhausted before BIA; jurisdictional bar | Court: No jurisdiction to review CAT claim because Paiz-Morales failed to meaningfully raise it before the BIA |
| Whether withholding of removal claim succeeds given asylum denial | Paiz-Morales: sought withholding based on same social group theory | Government: withholding requires higher "more-likely-than-not" standard and fails if asylum fails | Court: Denied — failure to meet asylum burden precludes withholding relief |
Key Cases Cited
- Singh v. Holder, 750 F.3d 84 (1st Cir.) (describes asylum well-founded fear/past persecution rule)
- Jianli Chen v. Holder, 703 F.3d 17 (1st Cir.) (standard of review for BIA and IJ decisions)
- Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir.) (particularity requirement for social-group claims)
- Scatambuli v. Holder, 558 F.3d 53 (1st Cir.) (withholding of removal higher evidentiary standard)
- Garcia-Callejas v. Holder, 666 F.3d 828 (1st Cir.) (rejecting gang-recruitment-based social group)
- Larios v. Holder, 608 F.3d 105 (1st Cir.) (rejecting young Guatemalan men resisting gang recruitment as a particular social group)