Rivera-Barrientos v. Holder
2012 U.S. App. LEXIS 7588
| 10th Cir. | 2012Background
- Rivera Barrientos, a Salvadoran, was attacked by MS-13 members after refusing to join the gang.
- She was raped and threatened, prompting her to flee to the United States.
- She sought asylum based on past persecution on account of political opinion and membership in a particular social group.
- The IJ found her credible but denied asylum; the BIA affirmed.
- Removal proceedings followed under 8 U.S.C. § 1182(a)(6)(A).
- The court affirms the BIA’s denial of asylum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the attack on account of political opinion | Rivera Barrientos argues attack targeted anti-gang views | BIA found attack not tied to political opinion | No; central reason was refusal to join gang, not political opinion |
| Is Rivera Barrientos in a particular social group | Group: Salvadoran women 12–25 who resisted recruitment | Group lacks particularity and social visibility; not a PSG | Not a PSG; even with particularity, fails social visibility; BIA affirmed |
| What is standard of review for BIA interpretation | Chevron deference should apply to BIA’s interpretation | BIA reasonably interprets ambiguous INA provisions | We defer to BIA if reasonable; Chevron applies |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (persecution basis requires more than mere recruitment resistance)
- Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) (Chevron deference for ambiguous INA terms)
- Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) (group must be particular; rigid boundaries recommended)
- Matter of C-A-, 23 I. & N. Dec. 957 (BIA 2006) (social visibility and particularity framework for PSGs)
- Aguirre-Aguirre, 526 U.S. 415 (1999) (Guidelines not binding on BIA; deference applicable)
- Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (supports BIA’s social visibility approach)