Rojas-Perez v. Holder, Jr.

com- any hardship undue evidence at the was unknown

pliance hearing to which stage. complaint unavailable at limitation already addresses Local This apparent get fear Solutia will 414C’s hardship apple, second bite at the undue pur- with the and it was not inconsistent poses of the Act for the Board to leave the newly evidence on open

door discovered topic. this important (3) objection un- Finally, Local 414C’s is necessary. finding The Board’s mandatory

transferring the work is a lab subject bargaining that Solutia means already obligation bargain will work, attempt further to transfer the a specific bargaining with or without order. bargaining change A order would not Solu- obligations, prevent tia’s nor it from even- tually bargaining impasse imple-

menting the transfer.

V. The National Relations Labor Board’s petition granted. for enforcement is Solu- cross-petition tia’s for review denied. petition Local 414C’s for review is denied. ROJAS-PÉREZ, Angélica Erasmo García-Ángeles, Petitioners, HOLDER, Jr., Attorney Eric H. States, General Respondent. No. 11-1047. Appeals, United States Court of First Circuit. May Submitted 2012. Decided Nov.

Randy Watt, Jr., Olen and D. Robert on petitioners. brief Leo, Attorney, Sabatino F. Trial Office Division, Immigration Litigation, Civil West, Tony General, Attorney Assistant Anthony Nicastro, Litigation P. Senior

Counsel, respondent. on brief for TORRUELLA, HOWARD,

Before THOMPSON, Judges. Circuit TORRUELLA, Judge. Circuit Rojas-Pérez (“Rojas”), Erasmo the lead case, wife, this and his Angéli- (“García”), García-Ángeles ca seek review of a final order of removal issued (“BIA”) Immigration Board of Appeals December 2010. Because we conclude that the BIA’s decision was reasonable and adequately supported by substantial evi- dence, itself,” deny petition police having we the instant but denied received any specific review. threats to that effect. explained also neither he nor his Background I. subjected family wife’s had been to attacks while in Mexico. Garcia limited her testi- Rojas (collectively, “peti- the and Garcia mony to brief remarks in which admit- tioners”) she entered the United States with- ted that she entered the United States inspection January July out on 2001 and without inspection 2003 and affirmed 2003, 16, respectively. November On Rojas’s spouse. she was a government the filed Notice to (“NTA”) in Appear immigration court The petitioners’ applica- IJ denied the charging Rojas removability under withholding tions for of removal on the 212(a)(6)(A)(i) sections day hearing. same as the merits The IJ 212(a)(7)(A)(i)(I) Immigration of the Rojas’s found and Garcia’s testimonies (“INA”), Nationality Act 8 U.S.C. credible, but nonetheless concluded that 1182(a)(7)(A)(i)(I).1 1182(a)(6)(A)®, §§ An they likely had not shown it was “more charging NTA Garcia with removability they than not that persecuted would be 212(a)(6)(A)® § under INA followed on upon them return to Mexico on account of September 2006. statutorily protected ground.” a Speaking specifically Rojas’s to petitioners The claims that he feared removability conceded family his targeted would be on aliens who had entered the account of United States but, sojourn States, their inspection July 18, 2007, without the United the on IJ reasoned applications persons “returning filed from withholding for of remov- the 241(b)(3), may § al under United States and who INA looked U.S.C. 1231(b)(3). § Rojas upon having money comprise and Garcia each do not a grounded particular requests withholding their individual for re- of removal lief on their stated belief that if relief. family Mexico, Rojas— returned their son Iker petitioners appealed the IJ’s find- being U.S. citizen virtue of born and, ings 14, 2010, on December United States 2006—could be kid- ruling. affirmed the IJ’s In its written napped and held ransom. order, the BIA defined the petitioners’ hearing A on petition- the merits of the purported “persons who applications ers’ was held before an immi- lengthy have a residence in the United (“IJ”) gration judge February on parents” States and are of U.S. citizen At hearing, Rojas testified that he and offspring. The BIA pe- reasoned that the returning Garcia feared to Mexico because titioners’ stated fear that their son could “people” would know that family had be kidnapped and held for upon ransom in, from, been and returned returning properly Mexico was not States and likely this made it grounded his son in their belonging to a discerni- could be kidnapped and held for group. ransom. ble social To support reasoning, its Rojas added he feared his son could the BIA cited precedent own for the be kidnapped gangs criminal or “the proposition that “fear of persecution based INA, 212(a)(6)(A)(i) INA, 1. Section codified codified 8 U.S.C. 1182(a)(6)(A)(i), 1182(a)(7)(A)(i)(I), § § at 8 U.S.C. prescribes renders the same for present "alienfs] in the United States without aliens who lack valid identification at the time being paroled” admitted or inadmissible to file an for admission into the 212(a)(7)(A)(i)(I) the United States. Section United States. persecuted” wealth does constitute would be on account of perceived under the [INA].” above-referenced factors. 8 C.F.R. timely petition for re- 208.16(b)(2). then filed § To establish either of view with this court. showings, these an alien must show a probability” persecution “clear of future

II. Discussion Stevic, repatriated. once INS 467 U.S. jurisdiction court to re This has 407, 413, 104 S.Ct. 81 L.Ed.2d 321 view BIA-issued final removal orders un (1984); see also v. Mukasey, Rashad 1252(a). § der 8 U.S.C. In circumstances (1st Cir.2009). case, present such as the where the “BIA Because the INA does not define the decision a adopts opts IJ’s but offer phrase “particular group,” social we have considerations, glimpse into its we review interpretation deferred to the BIA’s of the both the decision of the BIA and the IJ.” Holder, Mayorga-Vidal term. See v. 675 Holder, (1st 10, v. 676 Restrepo F.3d 15 (1st 9, Cir.2012); 14 Cir.2012). F.3d Méndez-Barrera applicable Under the “substan Holder, (1st 21, v. standard, 602 F.3d yield tial evidence” we to the 25-26 Cir. 2010). findings long they Accordingly, recognized of fact “so as are we IJ’s reasonable, ‘supported substantial and this context that a legally “cognizable so evidence on the record consid probative cial group is one whose members share ‘a ” Holder, Cheung ered as a whole.’ v. 678 common, immutable characteristic that (1st Cir.2012) 66, (quoting Seng F.3d 69 v. group socially makes the visible and suffi ” (1st Cir.2009)). Holder, 13, 584 F.3d ciently particular.’ Carvalho-Frois v. law, however, Questions of are afforded de Holder, (1st Cir.2012) 667 F.3d consideration, def proper novo albeit Méndez-Barrera, 25). (quoting 602 F.3d at agency’s interpretation erence to the applicable regulations. statutes and See We find that substantial evidence (1st Holder, v.

Lobo Cir. supports agency’s conclusion that Ro 2012); Holder, McCreath v. 573 F.3d jas failed to show if petitioners that (1st Cir.2009). Mexico, were to return to likely it is more than not persecuted that be 241(b)(3), § Under INA withhold they belong because to a particular social ing of removal relief must if issue group. Specifically, Rojas alleges that he “Attorney General decides alien’s persecution and García face if they return life or freedom would be threatened in [the they belong to Mexico because a partic country] destination because of the alien’s ular social comprised “persons of race, religion, nationality, membership in a who have lengthy residence in the United particular group, or political opin parents States and are of a United States 1231(b)(3)(A). § ion.” 8 An U.S.C. alien citizen.” As the IJ and the BIA both applying for such relief bears the burden explained, the reasoning argu behind this proof and must establish either of two appears ment that be individuals re showings: past per that he has “suffered turning from the United States would pos secution” 2—thus creating a rebuttable sibly upon by be looked criminals presumption likely persecution— being future as or, country financially that if returned to more well-off than origin, his others and likely “it targeted here, is more than not that he ... would thus be for harm — co, Rojas's petitioners 2. Consistent with admission he the IJ found that the had not past persecution. was never harmed while he resided in Mexi- suffered membership particular in a ransoming of their son cause of kidnapping country-wide citizen. of victimiza- who is U.S. risk “[a]— through tion economic terrorism is not the reject court and the BIA have Both this equivalent statutorily of a pro- functional might who recognize ed calls to individuals ground....” tected Id. wealthy or “hav perceived being returning to their ing money” and are denying Rojas’s In application for country origin living after the United withholding of removal affirming cognizable groups. legally States as decision, both the and the BIA (respec IJ Holder, v. Sicajú-Díaz See tively) grounded analyses their on this (1st Cir.2011)(rejecting comprised class logic. part, well-settled For his the IJ returning “wealthy individuals to Gua precedent proposi referenced for the lengthy residence in the temala after who are returning tion “those from States”); López-Castro may the United States and who be looked (1st Cir.2009) (rejecting upon having money and therefore are argument “would be ex being targets comprise fearful of do not to an increased risk of future at posed In group.” opinion, by in Guatemala gang tacks members be reasoning the then reiterated the IJ’s perceived cause he be [would] of endorsing and cited several its decisions Holder, wealthy”); Díaz v. see also accordingly the same rationale. We find (1st 4, Cir.2012); In Fed.Appx. re A-M- agency’s judgment the here to have been J-G-U-, E & I. & N. Dec. both reasonable and consonant with its (BIA 2007); S-V-, In 22 I. N. Dec. re & precedent.3 (BIA 2000), overruled on other attempt In an to outflank the considera grounds by Zheng Ashcroft, 332 F.3d supporting ble amount of case law the (9th Cir.2003). reasoning under decision, agency’s Rojas advances a sec that, pinning holdings these when a ondary potentially consequential and more that, petitioner upon repatriation, asserts argument. Specifically, Rojas takes issue he persecuted would be on account of his status, the BIA’s reliance on “social visibili perceived wealth or financial “[t]hat ty” requisite as one of the suggestion fails to' factors that objectively establish a particular legally cogni would define and persecution reasonable basis for a fear of premised group precedent. a zable social under BIA statutorily protected on ground.” requirement, This López-Castro, incorpo 577 F.3d at 54. which the BIA way, analysis Put another rated into its of pressing comprises what “particular such contention does not advance an In see re C-A-, (BIA argument persecuted 2006), that he would be be- 23 I. & N. Dec. 951 there, Although Rojas perceived wealthy claims that the BIA incor- others as once rectly "persecution focused on the based on making target thus their son an attractive logic expense paying wealth” at the atten- possibil- All abduction. this means is that the importance specific tion to the harm ity kidnapped by that their son would be petitioners allege could befall them in gangs rogue police criminal officers is the i.e., kidnapping ransoming the Mexico— "persecution” they they kind of that fear son, of their a U.S. citizen —we do not find would suffer once in Mexico. But as our that to be the case. To the extent that precedent suggest, above discussion they and Garcia state that are fearful that "hostile treatment based on economic consid- kidnapped family their son would be the if persecution.” López-Castro, erations is not Mexico, they returns to admit that such 577 F.3d at 54. they fear follows from their belief “common, deference, the immutable see demands id. but nonethe- that, estimation, group explained that an asserted less characteristic” gen also “make the BIA’s [ ] shares must the social community,” requirement erally recognizable was both unreasonable and (1st First, Cir. Faye v. inconsistent. the Gatimi court stat- 2009). ed that requirement sense,” no adding: “ma[de] visibility requirement

The social under- nor has the attempted ... to ex- [BIA] agency relied girds the cases which plain reasoning behind criterion in denying petitioners’ applications visibility. of social Women who have not withholding. Both this court and the BIA yet undergone genital female mutilation generally petitioners reasoned that practice tribes that it do not look claiming they belong to a from anyone different else. A homosex- group comprised persons who are ual in a homophobic society pass will wealthy perceived either or would be If you heterosexual. are a member of a upon country such their return to a where targeted has been for assas- crime is endemic do not meet the social sination or torture or some other mode visibility requirement. Because af crime persecution, you will pains take countries, fects all who reside in those visible; being socially avoid and to the (or logic goes, wealth perception extent that members of target group wealth) necessarily single would not out a are in remaining invisible, successful person Sicajú-Díaz, for victimization. See will not be “seen” people other (“In at 4 a poorly policed country, in society segment the “as a popu- of the poor rich and are all prey to criminals who lation.” nothing care about more than it taking J-G-U-,

themselves.”); In re A-M-E & Id. Further advancing its reasoning, the (“[T]here 24 I. & N. Dec. at 74 is in little court Gatimi noted that it found the defer- background the evidence of record to indi commonly ence that is due to the BIA’s wealthy cate that Guatemalans would be “particular definition of group” social un- recognized greater as a that is at warranted in the context of the social visi- in general risk of crime or of extortion or bility requirement. Here, the Seventh robbery in particular.”). explained Circuit it considered the BIA to have been “inconsistent” in apply- reasoning behind the BIA’s social ing requirement, the “[finding] groups to visibility requirement in has come for some ‘particular be social groups’ without refer- late, Rojas criticism of and points to varied as, ence to social ... as in well in authority calling this court to recognize cases, refusing other classify social- requirement is both unwarranted ly groups invisible particular social unnecessary. The sharpest critique of groups but without repudiating the other visibility requirement line of cases.” Id. at 615-16. The court points to is the Seventh Circuit’s decision that, thus regarding found social (7th in Gatimi 578 F.3d 611 as a criterion for determining “particular Cir.2009), in which that court invalidated group,” social visibility requirement the BIA’s social asylum the context. The court Gatimi the Board has been inconsistent rather acknowledged proposition the above-stated than silent.... When an administrative that the BIA’s definition statutory agency’s inconsistent, of the decisions are phrase “particular group” pick entitled court cannot one of the inconsistent one, fonso), to that unless and former El

lines and defer members of the (Matter scope agency’s police of the Salvador national one is within (BIA it Fuentes I. & N. Dec. 658 interpret [19 discretion to the statutes 1988)]). Yet, policy Congress’s anything or to make neither enforces opinions Board’s cases nor delegate. picking choosing Such those general understanding of those usurp would condone arbitrariness and groups, suggests that agency’s responsibilities. members “socially groups are visible.” The (citations omitted). Id. at 615-16 of each of groups members these Only one of the other federal circuit completely characteristics which are in- appeal has courts endorsed Gatimi ternal to the individual and cannot be reasoning. judgment In its court’s Val observed or known other members Att’y diviezo-Galdamez v. Gen. of (or society in question even oth- (3d States, Cir.2011),4 668 F.3d 582 er group) members of the unless and the Third Circuit voiced similar concerns until the individual member chooses regarding it perceived what as a lack of make that characteristic known. consistency in the BIA’s of its Id. fact Based on the that the above-cited requirement. example, own For the Val groups cog- court diviezo-Galdamez noted that nizable if the BIA impose were to had, interpreting since first the statu visibility” requirement “social today, the tory phrase “particular requirement court found the inconsistent Acosta, see In re 19 I. & N. Dec. past BIA decisions and concluded (BIA 1985), overruled on other grounds by that “it is an unreasonable addition to the In Mogharrabi, re 19 I. & N. Dec. 439 requirements establishing refugee sta- (BIA 1987), “recognized a number of where that upon persecu- tus status turns groups ‘particular groups’ where tion on account membership partic- in a there was no group’s indication that the ular social group.” Id. The court went possessed members ‘characteristics that further in finding particu- the BIA’s highly were recognizable by visible and larity requirement was inconsistent with country question’ pos others in the in or decisions, prior stating that it was “hard- sessed that characteristics were otherwise pressed to discern difference between ‘socially recognizable,” visible’ or Valdivie requirement of ‘particularity’ and the zo-Galdamez, By way 663 F.3d at 604. of requirement discredited of ‘social visibili- example, the Valdiviezo-Galdamez court ”ty’ Id. at 608. added: BIA has found each of [T]he the fol- recognizes While this Court the co lowing groups to constitute a “particu- gency persuasiveness of both the rea lar purposes for of refu- soning and the outcomes of the Seventh gee decisions, status: women who are opposed to and Third it Circuits’ is bound (Matter genital female mutilation by precedent its own regarding the rea Kasinga), required homosexuals visibility to sonableness of the BIA’s social (Matter Cuba, register in requirement.5 Toboso-Al- See Beltrand-Alas v. Hold- however, rely upon rejects, does not 5. The Court the concur- Valdiviezo-Galda- briefing in his multiple before this Court. The rence’s statement that we have mez "on viability decision was issued on occasions addressed the of the social Valdiviezo-Galdamez 8, 2011, criterion, day visibility rejected November one very argu- after his brief was by majority filed in the instant per- matter. ments which the has been (1st Cir.2012). er, A F.3d 93-94 The Court nevertheless believes requirement of social may only be overturned panel decision very least merits additional examina by it either undermined “subse- where by tion and clarification from the BIA. It is quently controlling authority” announced particularly unclear how are courts “authority or in the rare instance where square the BIA’s more recent statements decision, postdates original al- regarding requirement though directly controlling, not neverthe- decisions, with its former which allow as believing less offers a sound reason for cognizable particu those characteristics in panel, light in the former fresh groups only lar social that are visible when change its collective developments, members, made known individual Incf. Mongeau City Marlborough, mind.” Kasinga, re 21 I. & N. Dec. 365-66 (1st Cir.2007) (quoting 18-19 (BIA 1996) Toboso-Alfonso, and In re 20 I. Co., Eng’g v. Ashland Williams (BIA 1990). Also, & N. Dec. if (1st Cir.1995)). 588, 592 Since no control- an “immutable” characteristic is one that authority ling has been announced subse- possesses individual but either cannot quent to this Court’s decision Beltrand- change required should not be Alas, just and since this Court reviewed change, it why is not clear an individual arguments the same decision Petition- awith hidden characteristic need make presents regarding er here the inconsis- that characteristic for known it to be tency and unreasonableness of the BIA’s See, e.g., deemed immutable. In re Acos visibility” requirement, only “social ta, 19 I. & N. Dec. at 233. development fresh the Court consid- The concurrence states criticisms of divergence er is the further in the circuit BIA’s of the social visibility resulting courts from the Third Circuit requirement need not be entertained decision Valdiviezo-Galdamez. Since this case. wholeheartedly disagree We reasoning

that decision is based similar First, two reasons. the criticisms were decision, as the Seventh Circuit’s it is diffi- explicitly raised the Petitioner in his categorize cult to Third Circuit’s itera- challenges Gatimi-based to the social visi- development panel tion as a fresh had bility requirement, and appropri- we find it considered, already and that would be challenges ate to address those on that change sufficient to its collective mind. basis and on the basis of the growing purview,” suaded here.” This is not the case. The sonable but also within the BIA's arguments Court has addressed the conflating granted the deference to the BIA’s inconsistency opinion stated Gatimi interpretations prior of "social in de- decisions, prior in Beltrand-Alas. In its the (Scatambuli Faye) cisions and with the way arguments Court in no referenced chal granting Court’s of deference to the BIA's lenging arbitrary as inconsistent and visibility require- delineation application visibility BIA's of the social re ment). fact, In the Court has even avoided See, quirement. e.g., Faye, 580 F.3d at 41 addressing head on the issue of a tension (only stating generally that the Court ”show[s] immutability requirement between the and interpretation deference some to the BIA’s visibility requirement. See Scatam- group’]” evaluating the term without [‘social buli, ("it necessary 558 F.3d at 60 is not per extrapolation the reasonableness se of its explore this case for us to there whether immutability requirement from the that a any looking visibility tension between to the visible”); "socially characteristic be Méndez- require- of a and Barrera, (in stating 602 F.3d at 25-26 ment that of a an members share im- "we have found elaboration the so th[e] [of characteristic.”). mutable or fundamental visibility requirement] cial to be not rea- 82 Second, biguously requires as the the court’s construc- split

circuit on the issue. tion.”). stated, has an ad- “[w]hen Gatimi court The Court cannot be concerned are incon- agency’s ministrative decisions jurisprudence, the fact that its about sistent, pick one of the a court cannot states, the concurrence “does not necessar- and defer to that inconsistent lines ily groups might exclude members whose choosing picking one.... and [s]uch hiding have some measure success usurp agen- condone arbitrariness and attempt escape their status in an to perse- Gatimi, cy’s responsibilities.” 578 F.3d at added). Rather, (Emphasis cution.” (citations omitted). solely Court is and should be concerned with whether the BIA’s social “application This of the so Court’s own test,” requirement groups cial however reasonable and so excludes such in its broad, target of Petitioner’s is not interpretation application inconsistent Rather, challenge. challenges, See, Petitioner Chevron, U.S.A., e.g., of the INA.6 Chevron, may he after the BIA’s incon NRDC, Inc., 837, 843, Inc. v. 467 U.S. sistently im applied interpretation of the (1984) (“If S.Ct. 81 L.Ed.2d 694 ... mutability requirement encompassing Congress the court determines has not socially visible characteristic to which the directly precise question addressed the granted Court has deference. It is there issue, simply the court does not impose its unavailing adopted fore that this has Court statute, own construction on the as would a more or demanding approach less to this necessary in the absence of an adminis- See, e.g., or other term in the INA. Rather, interpretation. trative if the stat- 511, 523, Negusie v. 555 U.S. ambiguous ute is silent or to a respect (2009) (“ambi 5.Ct. L.Ed.2d issue, specific question for the court is guities agency’s juris statutes within an agency’s whether the answer is based on a delegations diction to administer are statute.”). permissible construction of the authority agency statutory to the to fill the basis, On this the Court cannot share gap in Filling reasonable fashion. these the concurrence’s concern that our discus gaps policy involves difficult choices may encourage sion of this issue “mis agencies equipped are better to make courts.”) (citation placed challenges to the BIA’s social visi than and quotation bility First, omitted); requirement.” it is both the marks Nat'l Cable & Tele Servs., duty and mandate of this comms. Ass’n v. X Court review Brand Internet 967, 985, interpretation the BIA’s U.S. 125 S.Ct. (2005) (“Before judicial precisely L.Ed.2d 820 the INA over time con evaluate statute, struction of a arbitrary capricious. whether contained whether rule is or not, See, a precedent may trump agency’s e.g., Mayo Found. Med. Educ. & — States, the court U.S. -, must hold that the statute unam- Research v. United 6. The helpful explain concurrence’s citation to the Tenth Cir Circuit is not here as it fails to genital cuit’s decision in Rivera-Ba rrientos v. Holder how homosexuals or females who fear mutilation, groups fails address this concern. See Rivera- which have been accorded Barrientos, (10th BIA, Cir.2012). protection by 666 F.3d 641 have characteristics quotes The that, "publicly concurrence the court’s statement that are either "evident” or accessi- visibility requires appears "social that the rele ble.” The Tenth Circuit to further potentially by solidify tendency by vant trait be identifiable mem the circuit courts community, bers of the either because it is establish their own standards of what of, defining evident visibility requirement or because the information social consists even publically prior characteristic is accessible.” if that standard conflicts with the BIA's rulings protected groups. See id. at 652. This statement the Tenth on

83 704, 711-12, term.”) (internal statutory 131 S.Ct. 178 L.Ed.2d ous quotation (2011). Second, omitted); it is true and marks while this Mendez-Barrera v. Hold- er, (1st 21, Cir.2010)(“[T]he acknowledged that Court has we are F.3d it precedent, bound our own is not our asserts that we ignore should operate blindly unscientifically task to and BIA’s delineation of [the the term ‘social legitimate challenges group’] in the face of to ei- because ... the BIA departed prior rulings adjudications precedent, gutted ther our or the from its immutable char- test, agency (and of an administrative tasked with acteristic and substituted a new interpreting organic unprecedented) statute. visibility test. This cry

assertion contains more than wool.... III. Conclusion The social visibility criterion ... repre- sents an elaboration of how [the immutable event, any In since this Court does not requirement operates. characteristic] We slate, on write a clean and since the BIA’s have found this elaboration to be determinations were based on substantial reasonable but also within the pur- BIA’s it, evidence in the record before the Court view.”); Holder, Scatambuli v. 558 F.3d deny Rojas-Pérez’s petition must for re- 53, (1st 59-60 Cir.2009)(examining the con- view.

tours of the visibility BIA’s social test and HOWARD, finding that “it Judge (concurring). Circuit is relevant to social group analysis”). I judgment, While concur in the I do not endorse the critiques court’s We are not alone in this view. A multi test, tude of recently which we have other circuits similarly and have con see, unreservedly rejected, e.g., cluded that the BIA’s interpretation Beltrand- of “so Holder, (1st 90, visibility” Alas v. cial 689 F.3d is Cir. reasonable and therefore 2012). Nor can I entitled discern reason to to Chevron deference. See Orella anew, Holder, entertain given 511, such criticisms na-Monson v. 685 F.3d 519- (5th Cir.2012); they impact have no on the outcome this Rivera-Barrientos v. Holder, (10th Thus, join 641, case. I decline to majority’s Cir.2012); 666 F.3d Holder, 980, 991, dicta on this nonessential matter. Al-Ghorbani 585 F.3d (6th Cir.2009); Ramos-Lopez v. Hold I. er, (9th 855, Cir.2009); 563 F.3d 858-62 Davila-Mejia v. Mukasey, 531 validity of the BIA’s social visibility (8th Cir.2008); 628-29 Ucelo-Gomez v. test is impression not an issue of first (2d Cir.2007) Mukasey, 509 F.3d 73-74 this circuit. have multiple We occa- curiam); (per Att’y Castillo-Arias v. U.S. viability sions addressed the of the social Gen., (11th 446 F.3d 1197-98 Cir. visibility criterion, rejected very and 2006). arguments by which majority has been See, (“[The persuaded e.g., here. peti- Only id. the Third and Seventh Circuits argues that ... expressly tioner] BIA’s use of have declined to apply the BIA’s visibility’ ‘social group analy- framework. See Valdiviezo-Galdamez v. Gen., (3d an arbitrary capricious interpre- sis is Att’y 603-09 Cir. 2011); tation of the statute court [but] this Gatimi v. (7th Cir.2009).

has held that criterion The majority aptly is reasonable it represents courts, because an sets reasoning forth the of those elaboration requirement oper- of how the I point need not belabor the here. At interpretation bottom, ates and ambigu- of an narrowly construed “so- BIA, immediately identifiable. We have by to erwise applied visibility,” as cial test, satisfy visibility a of a “you can be member held to mean that only complete if group only recog- a “be particular group generally social a need if identify you as a member stranger could community cohesive.” nized street, in the you because Mendez-Barrera, he encountered at 602 F.3d 26. speech pattern, your gait, appearance, not be “recognized” term should conflated discernible characteris- behavior or other visibility targeted of the physical with the Holder, tic.” F.3d Ramos characteristic; “eye- it is not immutable (7th Cir.2009); also Valdiviezo-Galda- see Thus, it not ball” test. See id. matters mez, Consequently, F.3d at 603-09. whether, as stated Valdiviezo-Galda- concluding the test after rejected mez, “completely the trait is internal to the identifiability” require- this “immediate or individual and cannot observed with a line of unre- ment inconsistent was by society of the known other members finding groups pudiated BIA cases social until the question ... unless and individual generally traits that are physical based on make that member chooses to characteris- “invisible.” See id. 604; rather, known,” tic 663 F.3d we interpret visibility I no need to social see whether, if that consider characteris- narrowly. The seminal BIA decision so known, tic were those who exhibit it— test, C-A-, Matter rec- establishing the regardless visibility to the casual of its ognized socially numerous traits as visible group passerby comprise would be — immediately apparent to the are not society sufficiently identified their eye, including opposition genital naked Mendez-Barrera, cohesive. See ties, mutilation, prior kinship employ- (“The inquiry at 26 whether the relevant police ment officer. See 23 I. & N. group society, not is visible (BIA 2006). Dec. As the 959-61 whether herself is to the the alien visible succinctly explained, Tenth has Circuit Holder, Faye v. alleged persecutors.”); mutilation, if kin- opposition genital (1st Cir.2009)(finding ties, ship prior as a employment proposed petitioner’s visible, socially police officer are social of who had a child out of wed- “adulterers literally. read visibility cannot be Rath- visible, socially lock” not not due to was er, visibility requires that the rele- externally the absence of some visible vant potentially trait be identifiable trait, but “did not because community, of the either members be- society explain Senegalese generally how it is evident because the infor- cause perceive her and women a similar defining the characteristic is mation Accordingly, the position”). social visibili- publically accessible. ty requirement both BIA and this —as Rivera-Barrientos, 666 F.3d at 652. circuit not applied it—does necessari- ly might groups exclude whose members

Our of the social hiding of success in have some measure understanding: test with that so- comports attempt escape perse- their status in an cial does demand that cution.7 externally relevant trait be or oth- visible because a class of cases in which the con- mants” as a There is peti- knew petitioner, duct to its "the of those who due clandestine or universe nature, insufficiently identity quite was deemed tioners’ as informants was confidential small; See, particularly e.g., petitioners were not visible. Scatambuli v. visible”); C-A-, (1st & Cir.2009)(rejecting 23 I. N. Dec. "infor- Matter

85 II. reflection, cussion is not a institutionally, of the view of this court. assuming argument’s Even sake that test has been inconsis- tently unreasonably interpreted by or

BIA, petitioner’s claim this fails. The so-

cial proposes “persons he who — lengthy have residence parents States and are of a United States merely particularized citizen”—is de- STATES, Appellee, UNITED wealth,” scription “perceived a trait which ap- and several courts of v. peals, including the Third and Seventh Anthony RABBIA, Defendant, Circuits, rejected as an immutable charac- Appellant. long teristic before the social visibility test No. 11-1510. See,

was formulated. e.g., Tapiero ever de Gonzales, Orejuela v. 672 United States Appeals, Court of (7th Cir.2005); Ashcroft, Jimenez-Mora v. First Circuit. (3d Cir.2004); Fed.Appx. 531 Mat- 7,May Heard 2012. S-V-, ter I. & N. Dec. (BIA 2000)(holding that actions motivated Decided Nov. wealth”, insufficient, “perceived were more, support without a finding per-

secution on membership based in a partic- ular group), overruled on other

grounds by Zheng Ashcroft, (9th Cir.2003); V-T-S-, Matter (BIA 1997) (same).

I. & N. Dec. words, In other removing the social visibil- ity equation test from the not sal- vage petitioner’s case, obviating any

need to reconsider this circuit’s well-set- precedent. tled

III. end, In the my concern is that the dicta majority opinion may encourage what I believe misplaced will be challenges

to the BIA’s visibility requirement. We repeatedly require- found that sound,

ment to be and the majority’s dis- (BIA 2006) (rejecting "confidential infor- sufficiently be members group. cohesive mants” as a Those proposition cases do not stand for the basis "generally that members are out of the that an immutable characteristic must ex- view”). public It makes sense that such indi- ternally immediately ascertainable to meet viduals, secrecy who act in definable no standard. group goal thought common would not be

Case Details

Case Name: Rojas-Perez v. Holder, Jr.

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 5, 2012

Citation: 699 F.3d 74

Docket Number: 11-1047

Court Abbreviation: 1st Cir.