57 F.4th 367
1st Cir.2023Background
- Reyes-Ramos, a Salvadoran national, entered the U.S. without inspection multiple times; a 2006 removal order was reinstated against him after subsequent apprehensions.
- After a 2018 arrest, Reyes expressed fear of return based on repeated gang (MS-13) violence for refusing to join: beatings, a gunshot wound, threats, and threats to his family; he did not report incidents to police.
- An asylum officer found Reyes credible but concluded he failed to show nexus to a protected ground or a reasonable possibility of government acquiescence to torture; the officer denied reasonable fear.
- Reyes sought IJ review; the IJ credited his testimony and documents but agreed with the asylum officer, finding the claim gang-motivated (not tied to a protected ground), and that his proposed social group lacked particularity and social distinction.
- The IJ’s adverse reasonable-fear determination is final under 8 C.F.R. § 208.31(g)(1); Reyes petitioned the First Circuit, which bypassed a jurisdictional question and reviewed the merits.
- Applying substantial-evidence review (and de novo review for the legal question of social-group definition), the First Circuit denied Reyes’s petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review IJ concurrence with asylum officer’s negative reasonable-fear finding | Reyes: Court has jurisdiction to review IJ decision challenging reasonable fear denial | Government: statutory limits on review of non-final withholding-only proceedings; contestable | Court avoided resolving jurisdictional question because petition fails on merits; dismissed on merits |
| Standard of review for IJ concurrence | Reyes: substantial-evidence standard should apply | Gov't: more deferential "facially legitimate and bona fide reason" standard | Court applied substantial-evidence standard (petitioner-favorable) and still found no reversible error |
| Whether proposed social group (persons targeted for refusing gang membership) is cognizable | Reyes: group qualifies as a particular social group (opposition to gang recruitment) | Gov't: opposition to gangs is not a protected social group; group lacks particularity/social distinctiveness | Court (de novo on legal definition) held group fails both particularity and social distinction requirements under precedent |
| Nexus/acquiescence to torture or persecution | Reyes: past attacks and threats show reasonable possibility of future harm and government acquiescence | Gov't: violence was gang-motivated for recruitment/power, no protected-ground nexus, and insufficient evidence of official acquiescence | Court agreed with IJ/asylum officer: record does not compel finding of nexus or reasonable possibility of official acquiescence |
Key Cases Cited
- Chavez v. Garland, 51 F.4th 424 (1st Cir. 2022) (articulates the three-part particular-social-group test)
- Paiz-Morales v. Lynch, 795 F.3d 238 (1st Cir. 2015) (framework for defining a particular social group)
- Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (visibility/social-distinction inquiry and particularity concerns)
- Beltrand-Alas v. Holder, 689 F.3d 90 (1st Cir. 2012) (rejecting opposition-to-gangs as cognizable social group)
- Guevara-de Vilorio v. Lynch, [citation="674 F. App'x 1"] (1st Cir. 2017) (gang-opposition claims rejected under circuit precedent)
- Enamorado-Rodriguez v. Barr, 941 F.3d 589 (1st Cir. 2019) (describing the substantial-evidence standard in immigration review)
- INS v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (standards for reviewing persecution nexus and substantial-evidence principles)
- Johnson v. Guzman Chavez, 141 S. Ct. 2271 (U.S. 2021) (holding withholding-only proceedings do not produce final orders of removal)
- Nasrallah v. Barr, 140 S. Ct. 1683 (U.S. 2020) (same point regarding finality of withholding-only proceedings)