Tay-Chan v. Holder
2012 U.S. App. LEXIS 23186
1st Cir.2012Background
- Tay-Chan is a Guatemalan native who entered the United States without inspection (circa 2003–2004).
- In removal proceedings, he conceded removability and sought withholding of removal or voluntary departure; asylum was untimely.
- An IJ found Tay-Chan credible but concluded he did not face past persecution on a protected ground and that future persecution was not more likely than not; voluntary departure was granted.
- The BIA affirmed, rejecting Tay-Chan's claims under the law of social groups and holding that his fear did not arise from a statutorily protected ground; it described his proposed social group as overly broad and not sufficiently particular.
- Tay-Chan petitioned for review; the court reviews the IJ/BIA as a unit, defers to factual findings, and reviews questions of law de novo.
- The court ultimately denies Tay-Chan’s petition, upholding the BIA’s social-group analysis and rejection of past persecution claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there past persecution on a protected ground? | Tay-Chan contends the harm to him and his family shows a pattern linked to family membership. | BIA/IJ found harms not causally tied to a protected ground and not past persecution. | No past persecution established; no rebuttable presumption of future persecution. |
| Is Tay-Chan a member of a cognizable social group? | Tay-Chan argues his social group—victims of gang threats/extortion—meets the social-group criteria. | BIA properly rejected this group as overly broad and not sufficiently particular or socially visible. | BIA’s social-group determination affirmed; proposed group fails the social-visibility and particularity tests. |
| Does social visibility requirement apply to the case post Judulang? | Judulang undermines the court’s acceptance of social-visibility as a sufficient criterion. | Judulang is inapposite; precedents bindingly support the social-visibility standard. | Court rejects the Judulang challenge; social-visibility standard remains valid here. |
Key Cases Cited
- Ruiz v. Mukasey, 526 F.3d 31 (1st Cir. 2008) (past persecution requires causal link to protected ground; multiple family harms insufficient)
- Seng v. Holder, 584 F.3d 13 (1st Cir. 2009) (uniting IJ/BIA findings; deferential to factual determinations)
- Cardoza-Fonseca v. United States, 480 U.S. 421 (1987) (establishes standard for well-founded fear vs. clear probability of persecution)
- Beltrand-Alas v. Holder, 689 F.3d 90 (1st Cir. 2012) (upholds BIA’s definition of social group; social visibility criterion applied)
- Larios v. Holder, 608 F.3d 105 (1st Cir. 2010) (social group analysis in asylum context; social visibility criterion explained)
- Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010) (defends particularity/visibility framework for social groups)
- Faye v. Holder, 580 F.3d 37 (1st Cir. 2009) (social-group definition and standards in asylum context)
- Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009) (requires sufficiently particular and socially visible social group)
- Arévalo-Girón v. Holder, 667 F.3d 79 (1st Cir. 2012) (cites limits of generic violence as basis for asylum)