Valdiviezo-Galdamez v. Attorney General of the United States, 663 F.3d 582

Valdiviezo-Galdamez is a Honduran native who entered the U.S. illegally in Oct. 2004 and faced removal proceedings starting Jan. 2005.
He sought asylum, withholding of removal, and CAT relief based on persecution by MS-13 in Honduras and related kidnapping in Guatemala.
At the initial IJ hearing, he testified to threats, beatings, shootings, and kidnappings linked to gang recruitment and past police inaction.
The IJ denied relief; the BIA summarily affirmed; on appeal this Court remanded in Valdiviezo-Galdamez I for further consideration of social-group, persecution, relocation, and CAT issues.
On remand, the BIA again denied asylum and social-group relief, relying on Matter of S-E-G- and Matter of E-A-G- (2008), and held he lacked a cognizable political-opinion persecution claim; CAT relief was denied for lack of future torture or government acquiescence.
This Third Circuit petition for review seeks reversal on asylum and withholding and remand for the BIA to address the new standards, with CAT relief denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA erred in applying a new social-group standard.	Valdiviezo-Galdamez contends BIA’s social-visibility/particularity requirements are new and unlawfully applied.	Goverment argues the BIA’s approach arises from existing Acosta-based framework and post-2006 refinements, not a de novo standard.	Remand required; BIA’s added social-visibility/particularity standards not entitled to Chevron deference as applied.
Whether the BIA violated due process by applying new law on remand without notice or opportunity to respond.	Valdiviezo-Galdamez asserts he had no counsel on remand and was not informed of new standards before briefing.	The BIA had no obligation to notify about new controlling authority; the record shows no reliance on his counsel for remand briefing.	Petition granted on this ground for procedural remand; remand for fair opportunity to address new standards.
Whether the CAT denial was supported by substantial evidence regarding likelihood of torture and governmental acquiescence.	Valdiviezo-Galdamez argues there is evidence of willful blindness by Honduran authorities to gang torture.	BIA’s CAT denial was supported by country background materials and testimony suggesting government efforts to combat gangs.	CAT denial affirmed; substantial evidence supported no more-likely-than-not torture with acquiescence.

INS v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (persecution on account of political opinion requires intent and causal nexus)
Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) (set forth interpretive approach to ‘particular social group’ and Chevron deference)
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S. 1984) (establishes deference to agency interpretations of ambiguous statutes)
Cardoza-Fonseca v. United States, 480 U.S. 421 (U.S. 1987) (discusses refugee standard and well-founded fear)
Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) (rejects ‘social visibility’ as sole determinative criterion and criticizes inconsistent Board rulings)
Kamara v. Attorney General, 420 F.3d 202 (3d Cir. 2005) (discusses standard of review and asylum framework)