Rodas-Orellana v. Holder
780 F.3d 982
| 10th Cir. | 2015Background
- Rodas-Orellana, a Salvadoran citizen, entered the U.S. without inspection in 2006 seeking to escape gang recruitment.
- He sought asylum and withholding of removal based on alleged persecution or a well-founded fear due to resisting MS-13 recruitment.
- IJ and BIA denied relief, concluding his proposed group lacked social visibility and that persecution was not shown on account of membership.
- After the BIA decisions, Matter of M-E-V-G- and Matter of W-G-R- clarified the social visibility standard to social distinction; Rodas-Orellana sought reconsideration.
- The BIA denied reconsideration; Rodas-Orellana timely filed a petition for review challenging both the removal order and the reconsideration denial.
- The Tenth Circuit consolidates and reviews the BIA’s January 22 final order of removal and the May 1 reconsideration denial under 8 U.S.C. § 1252.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the proposed social group is socially distinct under social distinction. | Rodas-Orellana contends his group is socially distinct as Salvadoran males resisting gang recruitment. | The BIA decision held the group lacks social distinction and is not a cognizable PSG. | No remand; group not socially distinct. |
| Whether persecution was on account of membership in a particular social group. | Rodas-Orellana argues persecution occurred because of resisting gang recruitment. | Persecution was not shown to be on account of membership in a PSG; harm was for general gang interests, not a central protected ground. | Not proven; no nexus to a protected ground. |
| Whether the denial of the motion to reconsider was proper in light of M-E-V-G- and W-G-R-. | Post-decision guidance warrants remand or reconsideration employing the new social-distinction standard. | The BIA properly denied reconsideration; the changed standards do not alter the outcome here. | Denied; no remand or reconsideration warranted. |
Key Cases Cited
- Rodas-Orellana v. Holder (Rivera-Barrientos v. Holder), 666 F.3d 641 (10th Cir. 2012) (establishes social visibility standards for PSG; differentiates social status from generalized gang violence)
- Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) (clarifies social distinction; remand considerations)
- Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014) (updates social distinction framework)
- Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) (early framework on social visibility for PSGs)
- Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012) (distinguishes persecution based on social status from individualized retaliation)
- In re Dallakoti, 619 F.3d 1264 (10th Cir. 2010) (context on burden of proof for asylum and withholding)
- INS v. Elias-Zacarias, 502 U.S. 478 (U.S. Supreme Court 1992) (motive critical to asylum; central reason requirement)
- Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (remand considerations post-M-E-V-G- and S-E-G- in a different circuit)
- Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (remand under updated PSG standards for evolving group definitions)