Valdiviezo-Galdamez v. Attorney General of the United States

configuration At first blush the of ver- case seems anomalous.

dicts this One employer

would think that conduct that is $500,000

sufficiently egregious warrant punitive damages would also result

damage plaintiff, to the and hence merit an compensatory

award of damages. But

review of the trial record reveals that Tep-

perwien, a former member of the Strategic military

Air Command who wore a bearing sleeve,

on his presented even his attorneys tough

own as a and honorable

soldier who refused to buckle under Enter-

gy’s mishandling his complaints about jury’s

Messina. The determinations that compensation

he needed no despite Enter-

gy’s acts of retaliation but that Entergy punished

needed to be and deterred can- reasonably characterized the re- conjecture;

sult surmise or to the con-

trary, they were amply supported by the

evidence at trial. I therefore respectfully

dissent. VALDIVIEZO-GALDAMEZ,

Mauricio

Petitioner

ATTORNEY GENERAL OF STATES,

the UNITED

Respondent.

No. 08-4564.

United States Court of Appeals,

Third Circuit.

Argued: Feb. 2010.

Opinion Nov. filed: Duffey, Esq. (Argued),

Martin Cozen O’Connor, PA, Philadelphia, Ayodele Gan- sallo, Migration I. Esq., HIAS & Council FACTUAL BACKGROUND1 PA, Philadelphia, Philadelphia, Services of Mauricio Edgardo Valdiviezo-Galdamez for Petitioner. was born in May and is a native and citizen of Honduras. He came to the Unit- Dallam, Esq., H. Elizabeth Senior Pro- States in being ed October 2004 without Officer, Com- High tection United Nations paroled admitted or after inspection an D.C., Refugees, Washington, missioner for immigration proceedings officer. Removal As Amicus Curiae for United Nations him against January were initiated for High Refugees, sup- Commissioner During proceedings, those Valdiviezo-Gal- port Petitioner. damez removability, admitted but submit- application asylum, ted withholding West, Tony Esq., Attorney Assistant removal, and relief under Article III of General, Division, Wernery, Civil Linda S. Against (“CAT”), the Convention Torture Director, Esq., Margaret Perry, Assistant as noted above. Counsel, Esq., Litigation Senior Theodore At the ensuing hearing removal before Hirt, Esq. (Argued), C. Attorney, Office of Immigration Judge, an Valdiviezo-Galda- Division, Immigration Litigation, Civil U.S. mez testified that he fled Honduras be- Justice, D.C., Department of Washington, cause of a gang members called “Mara for Respondent. Salvatrueha,” “MS-13,” had threat- a/k/a join ened to kill if him he did not their McKEE, Judge, Before: Chief gang. Valdiviezo-Galdamez testified that HARDIMAN, DAVIS, Judge, Circuit and gang and, in engages drug trafficking Judge.* District occasion, on commits murder. According Valdiviezo-Galdamez, to gang mem- OPINION began bers threatening him in March living city when he was in the of San McKEE, Chief Judge. Pedro Sula in Honduras. On one occasion approached six men Valdiviezo-Galdamez Mauricio Valdiviezo-Galdamez petitions and robbed him as he was leaving work. for of a review decision of the Board They told him that he join would have to Immigration Appeals dismissing appeal his gang their to his get money and jewelry Immigration an Judge’s deny- from order refused, back. When he the men hit him ing applications asylum, his for withhold- told him that he better think about ing of removal and relief under III Article their “proposal.” Valdiviezo-Galdamez Against the Convention Torture. For knew that the men were members Mara follow, the reasons that grant we will they Salvatrueha because had tattoos that petition for review on the asylum with- were of gang characteristic membership. holding applications removal and re- mand for proceedings; further will we Valdiviezo-Galdamez days waited three deny petition for review on claim before reporting the incident the police to for Against relief under the Convention because he was afraid to his leave house. incident, Torture. After this he moved to live with * Davis, Legróme Hon. D. United Attorney States District view. Gener- Valdiviezo-Galdamez Judge Pennsylva- (“Valdiviezo-Galdamez Eastern District I”), al F.3d nia, sitting by designation. (3d Cir.2007). 286-287 1. The opinion facts taken from our prior petition Valdiviezo-Galdamez's for re- they they testified that told him Cupón Galdamez Rosa de be- mother in Santa

his longer offering option him the come no gang would were he was afraid cause kill their and had decided to joining gang, remained San Pedro him if he after They then mother’s house him instead. tied Valdiviezo- He did not leave his Sula. stayed up beat him for five hours. he in San- Galdamez the three months during to Pedro Sula He returned San ta Rosa. eventually by freed the Guate- He job he offer. 2003 because received June had alerted fam- police malan who been think that he that he did not He testified traveling were ily members who behind Rosa because the find work Santa could had not been Valdiviezo-Galdamez and agricultural and most village largely attackers. spotted Valdiviezo-Gal- addition, he was are farmers. people complaint filed a the Guatema- damez Rosa because some stay to in Santa afraid they simply said it was police, lan but there classmates who lived of his former problem from their since he wasn’t he feared gang were members re- Valdiviezo-Galdamez Guatemala. his presence. they would discover briefly Guatemala with his sis- mained husband, and then ter’s decided come returned After Valdiviezo-Galdamez escape gang. States to He Sula, the United he to a different Pedro moved San gang testified that he believes city attempt within the colony family him his members will kill and attack of Mara Salvatrucha. members avoid if he returns to Honduras and continues However, spotted him members soon gang gang resist recruitment. They at their threats. shot renewed him him, spears rocks and and threw asylum application, In his Valdiviezo- a week. times When about two-to-three that been alleged perse- he had Galdamez ran, him: “Don’t they would shout after he in on of mem- cuted Honduras account his you or afraid. later ran. Don’t be Sooner in a bership group, that join identify us.” He was able to some will of persecution had suffered on account he men, by nicknames gang either he had a well- political opinion his that they or in their tattoos because inscribed fear such would persecution founded by those nick- one another addressed if to he were returned Honduras. continue five filed names. Valdiviezo-Galdamez inci- police reports about these separate II. PROCEDURAL HISTORY dents, no response but he received claimed 2005, hearing, after a On June police. from the Judge Valdiviezo-Gal- Immigration denied applications although for relief he testified that he damez’s

Valdiviezo-Galdamez Valdiviezo- way on his to found no reason disbelieve in a car caravan was two Guatemala, testimony. suggested The IJ his husband Galdamez’s visit sister’s proof. The IJ concluded when he and his fellow three failures September, had estab- cars kid- one of the were Valdiviezo-Galdamez passengers refused lished by members Mara Salvatrucha napped by him the Mara protect from the attacks the border into Guatemala. crossing after that the refusal members and into the mountains where Salvatrucha They were taken grounds one the five on account of kidnappers asked Valdiviezo-Galdamez was Na- Immigration in the doing in He told enumerated he was Guatemala. what (“INA”), i.e., race, his reli- tionality Act only traveling, but his that he was them in a nationality, membership partic- trying escape gion, thought he was abductors political opinion. their ular gang. into Valdiviezo- recruitment Second, the IJ found that Valdiviezo-Gal- Valdiviezo-Galdamez had failed to estab damez failed to establish that had he lish that the harm he suffered Honduras injured been on account of his race, reli- account of his membership in the gion, nationality, membership in a partic- group consisting young men who had ular social political opinion. been by recruited gangs and had refused Third, the IJ noted Valdiviezo-Gal- join. Id. at 290. We remanded to the damez had lived in Santa Rosa without BIA for it to address the ques threshold problems and faulted him for failing to tion whether “young men who have establish that the danger of persecution actively been recruited gangs and who at the hands of the gang members was have join refused to the gangs” is a “par country-wide.2 The IJ also found that ticular within the meaning of presented Valdiviezo-Galdamez no evi- the INA—an issue that neither the IJ nor dence that he would be tortured if re- the BIA had decided—and which de we turned to Honduras. clined to decide in the first instance. Id. appealed Valdiviezo-Galdamez that rul- We also directed the BIA to address ing to the Board of Immigration Appeals. whether injures that Valdiviezo-Galda In his BIA, brief to the argued, he inter mez suffered rose to the level of persecu alia, that belonged he tion. Id. addition, at 291. In we held social group” of youth “Honduran who the IJ erred in analysis his of whether have actively been recruited but gangs Valdiviezo-Galdamez could safely relocate have join refused to because they oppose within Honduras. Id. at 291-92. Finally, the gangs.” On February 2006, the we held that the IJ erred in denying the rejected the argument summarily application for relief under the CAT be affirmed the IJ’s decision. cause the ignored IJ relevant evidence and Valdiviezo-Galdamez then filed his first remanded for consideration of the relevant petition for review with this court. We evidence light of our decision in Silva- granted petition, vacated the BIA’s Rengifo General, v. Attorney 473 F.3d 58 decision and remanded for pro further (3d Cir.2007). Id. at There, 292-93. we ceedings. Valdiviezo-Galdamez v. Attor addressed the standard proving for gov (“Valdiviezo-Galdamez ney General I”), ernment acquiescence to torture. (3d Cir.2007). 502 F.3d 285 held, We pertinent part, that substantial remand, evidence On the again rejected Val- did not support the IJ’s determination that diviezo-Galdamez’s claims.3 The BIA con- 2. § See 8 1208.13(b)(2)(ii) ("An C.F.R. appli- the case put had been on the adju- docket for cant does not have a well-founded fear of dication and that if Valdiviezo-Galdamez persecution applicant if the could perse- avoid wished represented counsel, to be by that by relocating cution part to representative another of must file a entry ap- new of applicant’s country of nationality pearance ... if under unless that one already had been all the However, circumstances it be would filed. reasonable entry no appearance of was expect to applicant so.”). to do Only filed. a filed brief after the remand. 3. represented Valdiviezo-Galdamez was 22, The BIA's October 2008 decision follow- Nicole Simon at hearing his first before ing remand stated appeared that he pro had IJ, as well as in appeal his first However, to the BIA. He se. prior decision, to the BIA’s represented counsel, was also Gansallo, P. Martin who had not appearance entered an Duffey Gansallo, Ayodele and peti- his remand, first with the BIA after and did seek not tion for remanded, review with us. After we brief, opportunity to file a sent Septem- a the BIA sent a notice 23, of remand to Valdivie- ber advising letter to the BIA zo-Galdamez and advising Simon that them required that it was to consider the social quali- to inchoate” and “too broad ety” to failed Valdiviezo-Galdamez that eluded The App. 11. the INA. under fy for relief past perse- experienced had he that show that BIA believed fear of future a well-founded cution or had required as lacked group a classification of’ account “on persecution persons E-A-G- because under Matter App. INA. 10- of under the protected that is to be not shown gangs were who resist decid- it had noted that also The BIA 11. group recognizable or a socially visible analogous” case Matter of “closely ed society, and the risk of segment Honduran (BIA S-E-G-, Dec. 579 I. & N. of was feared harm Valdiviezo-Galdamez of Valdiviezo-Gal- 2008), we remanded after to gang reaction actually an individualized In App. 11. for review. petition damez’s App. behavior.4 specific his S-E-G-, the BIA held that Sal- Matter of re- subjected who were youth vadoran that Valdiviezo- also concluded The BIA Salvatrucha, Mara by the efforts on account persecution cruitment claim Galdamez’s membership “based by INS gang foreclosed and who resisted was opinion political Elias-Zacarias, religious moral 112 S.Ct. personal, own on their U.S. activi- (1992). There, gang’s values opposition 117 L.Ed.2d a or ties,” guerrilla constitute that a did not held Supreme Court rejecting again conscript In a Guate Id. attempt at 579. group.” ganization’s claim, BIA re- nec military did not into its Valdiviezo-Galdamez’s malan native compan- its S-E-G- on account lied on Matter persecution essarily constitute E-A-G-, 24 I. & N. However, Matter case, the Court opinion. ion political 2008). (BIA BIA concluded the issue of whether Dec. 591 address did there “particu- a a asylum held it had for previously qualify alien could whose mem- be lar social member common, charac- immutable opposition share that his argued bers cause he cannot either relief. members qualified opinion” teristic “political required not be be rejected proposition should change, or The Court to their that he it is establish fundamental alien did not change because cause the App. politi because of that consciences. prosecuted would individual identities con- his ofE-A-G-, the Board “because of refusal and not 11. Matter opinion In cal 483, 112 Id. “greater specifici- S.Ct. 812. give fight.” that it would cluded concepts of by adding that test ty” to ap- Valdiviezo-Galdamez’s rejecting visibility.” Id. and “social “particularity” although he that BIA reasoned peal, the S-E-G-, retaliation, “failed he gang the BIA to fear as Matter of Here, claimed gang resisting political so- motive to show reasoned fu- fear of a well-founded who have youth recruitment “Honduran of cial political his on of account persecution but have ture gangs actively recruited been BIA noted App. 12. The gangs” opinion.” they oppose join because to refused that Valdiviezo- “no evidence” was “po- there it was because lacked made active” or “politically was Galdamez of segment soci- large and diffuse tentially "particular gangs was not did BIA send remand. The on issues INA, 22, did have meaning it of the 2008 decision within the courtesy copy its October of unable whether to decide to Gansallo. unwilling protect Valdiviezo-Galdamez to that Honduran found 4. Because have could Valdiviezo-Galdamez or whether by gangs but youth have been recruited who Honduras. safely within relocated they oppose join because have refused 590

any “anti-gang political statements.” Id. IV. GENERAL LEGAL PRINCIPLES BIA, According to the Valdiviezo-Galda- Asylum withholding A. any provide mez did not evidence of removal. him, gang “imputed, impute or would gives Section 208 of the INA the Attor- anti-gang political opinion, or would be ney grant asylum General discretion to for any interested him reason other 1158(a). § removable aliens. 8 U.S.C. simply than increas[e] their ranks.” Id. However, that can only granted relief if also denied Valdiviezo-Galda- applicant “refugee.” is a Id. “[Refu- CAT claim because mez’s he failed to show gee” is defined as: past rising to conduct the level torture. [A]ny person any is country who outside addition, arguendo, assuming even or, person’s nationality such it likely he had established was “more than a person having case of no nationality, is not” that he would be tortured any country outside of in which such gang, Board reasoned that he had not resided, person habitually last and who established that the torture would be in- is or unwilling unable to avail himself or acquiescence public flicted of a protection herself country of that official. Id. at 13. persecution because of or a well-founded petition This for review followed. persecution fear race, account nationality,

religion, membership in a group, or political opin- III. STANDARD OF REVIEW ion. Our questions review of law is 1101(a)(42)(A). § 8 U.S.C. Accordingly, an General, Attorney de novo. Kamara v. ability alien’s to establish that is enti s/he (3d 202, Cir.2005). 420 F.3d 210-11 We refugee tled to relief aas turns on whether statutory interpretation review BIA’s can establish “on persecution s/he account Immigration and Nationality Act of’ statutory one of the five grounds. INS under the deferential standard set forth in Elias-Zacarias, 478, v. 112 502 U.S. S.Ct. Chevron v. Natural Resources Defense 812, 117 (1992). L.Ed.2d 38 Council, 837, 104 U.S. S.Ct. (1984). L.Ed.2d 694 Lukwago Ashcroft, v. An applicant who establishes (3d Cir.2003). 329 F.3d past persecution Under is “entitled to a presump analytical framework, if the statute is tion that life or his[/her] freedom will be issue, silent or ambiguous about an if we threatened Gabuniya [s/]he returns.” agency’s General, (3d must determine if the interpreta Attorney 463 F.3d Cir.2006); tion permissible 208.16(b)(1). is based on a construction § see 8 C.F.R. INS, of the statute. Fatin v. 12 F.3d applicant Where an unable demon (3d Cir.1993). 1233, 1239 We review the strate that has been the victim of s/he Board’s findings of fact past persecution, under “sub applicant nonetheless standard, stantial evidence” Tarrawally eligible asylum v. becomes for upon demon 180, (3d Cir.2003). Ashcroft, 338 F.3d 186 a strating well-founded fear future per of only We can reverse the if Board’s decision if secution returned native coun his/her “any adjudicator reasonable try. would be Ashcroft, com See Abdulrahman v. 330 pelled (3d 587, Cir.2003). conclude to the contrary.” 8 F.3d 592 The well- 1252(b)(4)(B). § U.S.C. v. See INS Elias- found persecution fear of in standard Zacarias, 478, 481, 812, 502 U.S. 112 subjectively S.Ct. volves a genuine both fear of (1992). 117 L.Ed.2d 38 persecution objectively and an reasonable

591 ” 166, Ashcroft, 290 F.3d v. al.’ Sevoian v. Cardoza- INS persecution. of possibility Cir.2002) (3d 8 C.F.R. 430-31, (quoting 421, S.Ct. 174-175 Fonseca, 107 480 U.S. 208.16(c)(2)). (1987). Sen- subjec- “The United States § 1207, 434 94 L.Ed.2d standard, as well as this showing specified that ate requires prong tive INS, govern F.3d many v. 67 of other standards Mitev genuine. is fear Cir.1995). Convention, (7th Determining ‘un- in several 1325, under the relief 1331 objec- imposed is that it on Unit- persecution derstandings’ of the fear whether ascertaining requires of the Convention ratification tively reasonable ed States’ (citations alien’s in the person Id. at 175 Against a reasonable Torture.” whether if omitted). persecution fear has no would standard for relief circumstances “The country. Chang v. given requires to a subjective component, returned but instead Cir.1997). (3d 1055, INS, 1065 establish, evi- by objective 119 F.3d alien to dence, entitled relief.” Id. is [s/]he conduct persecution If the omitted). (citation quotations internal its or directly ed credible, may if testimony, The alien’s also establish must petitioner agents, proof of the burden to sustain sufficient gov “by forces the that it was conducted INS, v. corroboration. Mansour without unwilling control.” unable or ernment is Cir.2000) (7th 902, (citing 8 907 230 F.3d General., F.3d Attorney v. Kibinda 208.16(c)(2)). If alien meets § an C.F.R. Cir.2007). (3d 113, 119 withholding of proof, of his or her burden man Withholding of removal is is manda- deferring of removal removal or General deter Attorney datory if “the 241(b)(3); § 8 C.F.R. tory. INA life or freedom alien’s mines that [the] §§ 208.16-208.18. pro account of on would be threatened” regulations for implementing Under the (re- 1253(h)(1) § 8 U.S.C. ground. tected the Convention: amended, at 8 U.S.C. codified, as 1231(b)(3)). withholding for qualify § To an act which as is defined Torture “clear removal, must establish a an alien physi- suffering, pain severe or whether i.e., it is persecution,” probability on mental, intentionally inflicted is cal or not, suffer would likely than more s/he obtaining purposes for such person returning home. See upon persecution infor- person or her or third from him 429-30, Stevie, 467 U.S. INS confession, him or punishing mation or a (1984). Since 81 L.Ed.2d S.Ct. or a third act he or she her an for demanding than is this standard more suspected or has committed person alien asylum, for eligibility governing committed, intimidating or or having asylum for is necessari qualify who fails or person, or a third him or her coercing withholding of removal. for ly ineligible on discrimination any reason based for (2d F.3d Slattery, 55 Zhang v. suffering kind, pain or when such any Cir.1995). of or instigation by or at the is inflicted of a acquiescence consent with the the CAT. B. under Relief acting person other public official relief applicant “An capacity. an official Conven III] under [Article merits 208.18(a)(1). § 8 C.F.R. bears the burden Torture Against tion clearly state regulations “[T]he not likely than it is more establishing ‘that torture acquiescence is no if that there re be tortured she would that he or the about officials know unless relevant country remov- of moved to 592 Sevoian, it 290 not may implicate regula- occurs.” cials

torture torture before 208.18(a)(7)) Sevoian, § (citing at 176 8 tions.” 290 “[T]or- F.3d C.F.R. F.3d acts, original). Silva-Rengifo governmental In ture intentional (emphasis covers (3d General, 58, Attorney 70 not acts or negligent by private v. 473 F.3d acts indi- Cir.2007), acting govern- “acquiescence we held viduals not behalf of the J-E-, 291, In re regulation] requires used in the ment.” 23 I. & N. Dec. [as torture (BIA 2002). government remain will- 299 The BIA held only officials has also and breach fully blind to torturous conduct committed individuals “[violence prevent legal responsibility to it.” over whom the reason- their has no regulations provide: implicate” also able control does not un- relief Y-L-, R-S-R-, A-G-, der the In re CAT. (3) assessing is more like- whether it 2002). (BIA I. N. 23 & Dec. 280 ly applicant than not that an would be Similarly: proposed country tortured of re-

moval, all evidence to the possi- relevant of a pattern existence consistent of bility of future torture shall be consid- flagrant, gross, or mass of hu- violations ered, including, but not limited to: country man in a rights particular does not, such, constitute a sufficient (i) past Evidence of torture inflicted ground for determining that a applicant; upon person danger being would be sub- of (ii) Evidence that applicant could re- jected upon to torture return his or her part country to a locate remov- country. Specific to that grounds must likely al where he or she is not to be exist that indicate that individual tortured; personally would be at risk. (in) gross, Evidence of flagrant mass S-V-, In re I. & N. Dec. rights violations human within the (BIA 2000). removal, country of applicable; where V. DISCUSSION (iv) Other regard- relevant information we Although will address each ing country conditions removal. arguments makes in Valdiviezo-Galdamez 208.16(c)(3). § “[Country 8 C.F.R. condi- support petition review, his prin- his play alone can tions a decisive role [in cipal clearly claim is that the BIA erred determining if relief ... warranted] requiring “particularity” visibil- require the law does not [and] ity” to establish that he is a of a member prospective risk of torture account of be on particular social group. argues He that is protected certain grounds.”5 Kamalthas to, contrary with, and inconsistent the text INS, (9th Cir.2001). 251 F.3d of the INA. is an form of extreme “Torture cruel inhuman treatment and does not we can merits address the Before lesser cruel, claim, include forms of inhuman or we this must first address degrading treatment punishment government’s claim juris that we no have not do amount torture.” C.F.R. diction to consider Valdiviezo-Galdamez’s 1208.18(a)(2). § Therefore, “even challenge cruel to the requirements BIA’s that a inhuman by government behavior offi- group must have “particularity” and “so- 5. Because the risk of torture not need necessarily preclude does claim does relief un- grounds, protected Kamalthas, be on account of certain der the [CAT].” 251 F.3d at 1280. inability cognizable asylum “the to state a

593 correct that this “particular government arguing is visibility” to constitute a cial argues jurisdictional requirement. See Hox- government The is a group.” social (3d Holder, 157, because 559 F.3d 159 n. 3 reach the merits ha v. we cannot that Cir.2009) (“[I]ssue required failed to exhaust his exhaustion as Valdiviezo-Galdamez rule.”). 1252(d)(1) to respect jurisdictional § with a by remedies is administrative petitioners raise all issues Requiring that issue. permits agency the BIA the “to before 2008, May that in government notes The controversy a or correct its own resolve of notified Valdiviezo-Galdamez the BIA judicial Bon- errors before intervention.” remand, Valdi- on but briefing schedule its (3d Gonzales, 442, 414 447 hometre F.3d The did a brief. not file viezo-Galdamez Cir.2005). Gan- Ayodele also notes that government sallo, represented had Valdiviezo-Gal- who undisputed It is that Valdiviezo-Galda review, did petition his for prior damez on “particular not address BIA’s mez did the 2008 September BIA a letter in send the i.e., analysis, require its group” social required to the Board that it was advising “particularity” “social visi ments for on re- social issues group the consider following our to the BIA. bility,” remand However, supra. n. Gansal- mand. See However, automatically that does not de an nor filed appearance neither entered lo prive jurisdiction of In Lin v. us now. addressing raised issues a brief (3d General, Attorney 543 F.3d 114 Cir. of social “particular discussion Board’s 2008), we held “the BIA’s consider S-E-G-, supra, in Matter group” provide of ation of an issue is sufficient to us E-A-G-, we have supra. As Matter if jurisdiction over that issue” even of reject- cases, Board those explained, fails to petitioner raise the issue before asylum being on of for account ed claims Here, BIA. F.3d at n. 7. 123 particular group based social member “particular that the social held opposition gang recruit- the aliens’ did not Valdiviezo-Galdamez Thus, government believes ment. it asylum for because qualify consideration his present “failed to Valdiviezo-Galdamez lacked and “social visibili interpretation to the challenges [BIA’s] ty.” raised the issue sua Since in its group’ social articulated ‘particular jurisdiction have over Valdivie sponte, we Br. 2006-2008 decisions.”6 Government’s challenge the BIA’s re zo-Galdamez’s con- Accordingly, at 18. “particularity” and “social visibili quiring jurisdiction have no that we because tends precedent qualifying ty” as a condition his failed to exhaust Valdiviezo-Galdamez Accordingly, from we for relief removal. he did remedies because administrative that he address the merits of his claim will challenge the BIA’s group a particular a member of in his review. analysis petition for is a establishing that he purposes “refugee.” judicial raising issue for Prior review, all ad- petitioner must exhaust denying BIA erred 1. The right remedies as of ministrative available asylum. application for issue. 8 U.S.C.

regarding Gen., 1252(d)(1); argu- makes three Valdiviezo-Galdamez Att’y § Sandie v. (3d Cir.2009). his support contention 250 n. ments F.3d S-E-G-, boundaries, possesses and that it BIA noted that well-defined In Matter through visibility.” it decisions recognized had rendered 24 I. level "membership purported in a & N. Dec. at 582. requires have tin, denying application his for we that it “appropriate BIA erred in reasoned was separately. each asylum. phrase ‘particular consider consider what the We social in group’ was understood to mean by applying A. The BIA erred a new the Protocol.” Id. membership standard to determine I the generally Article Protocol group.” social “particular in a adopted of a “refugee” the definition argument, To this understand some in I contained Article of the Na- United background necessary. is information As Relating tions Convention to the Status above, § pursuant noted INA Refugees. provision This latter de- only alien must establish has i.e., s/he a “refugee” using fined terms — persecuted country been in the of origin, “race, religion, nationality, membership but that such was “on persecution account in particular social political specified of’ one of in grounds opinion” virtually identical to those — above, statute. As also noted Valdiviezo- in incorporated now the INA. When the arguing Galdamez is he is entitled to Plenipotentiaries Conference of was con- persecution relief based on on account of sidering the Convention particular his “a membership in phrase “membership particular so- group.” cial added to was this definition “afterthought.” as an rep- The Swedish (3d INS, Fatin v. F.3d 1233 Cir. language, resentative this ex- 1993),we wrote: plaining only it that was needed because Both courts and commentators have “experience shown has that certain refu- “particular struggled to define gees they had been persecuted because group.” Read in its broadest literal belonged social groups,” sense, phrase completely almost Thus, proposal adopted. and the open-ended. Virtually any set including legislative history neither the of the rel- person more than one could be de- evant United statutes States nor the scribed “particular as a social group.” negotiating history of pertinent in- Thus, statutory language standing agreements ternational light sheds much alone very is not instructive. on meaning phrase of the “particular (footnotes omitted). Id. at 1238 The con- social group.” cept is even more elusive because there is (citations omitted). Id. no legislative clear evidence of intent. Id. Fatin, explained We From 1985 until the BIA issued “phrase ‘particular group’ was first number of dealing decisions with the placed in Congress the INA when meaning “particular enacted social group.” The 1980,” Refugee Act of but legisla- phrase first interpreted in Matter history Acosta, (BIA tive Refugee 1985), Act “does not 19 I. N. Dec. 211 & what, reveal specific if any, meaning grounds by overruled on other Matter of (BIA members of Congress Mogharrabi, attached to the 19 I. & N. Dec. 201 [,]” 1985). phrase ... There, other than to argued make it clear alien that volun Congress bring tary intended “to United members a taxi cooperative cab refugee States law into conformance who yield anti-government refused to the 1967 guerrillas United Nations Relating Protocol in El Salvador constituted Refugees the Status ... to which group.” guerrillas (foot- United States “targeted acceded 1968.” Id. small businesses in the transpor omitted). note Thus, and citations in Fa- tation work industry stoppages, fundamental El econo did not consider either to damaging Salvador’s hopes of identity BIA at at 216. The or conscience. Id. 234. 19 I. & N. Dec. my.” that the claim. It noted UN rejected that cases, subsequent In the BIA relied race, nationality religion, refers to Protocol a upon finding Acosta in that number of as member opinion, as well political and groups “particular constituted a social It then particular group. in a social ship group” under the INA. Matter of generis,7 principle ejusdem applied (BIA Fuentes, 1988), 19 I. & N. Dec. 658 account of “persecution on interpreted and BIA that “former members of the held particular group” in a social membership El police national Salvador” could form as used the INA “particular group” a social because the to- persecution that is directed to mean policeman status as a former is “an alien’s who is a member of a ward an individual characteristic, it immutable as is one be- whom share a persons all of group yond capacity change.” of the to [alien] common, characteristic. The immutable Toboso-Alfonso, at 662. In Matter Id. might characteristic be innate shared (BIA 1990), 20 I. & N. Dec. the BIA 819 ties, sex, color, kinship as or or one such that held homosexuals Cuba could con- a might circumstances it be in some “particular group” stitute because as former past experience such shared government required the Cuban homosex- ownership. military leadership or land register, report regularly to to uals characteris- particular group kind of The undergo physical examinations this construc- qualify tic that will under registered by “once Cuban on a to be determined case- tion remains homosexual, as a that characteristic [was However, basis. whatever the by-case subject at change.” Id. 821-23. In not] common characteristic defines H-, (BIA 1996), 21 I. In re & N. Dec. 337 it that the members group, must one the BIA found a familial sub-clan in Soma- change, cannot or group either “particular group.” lia to be a change be- required should not be explained: “The record before us it is fundamental to their individu- cause only makes clear not the Marehan or consciences. al identities kinship, they ties of but that share upon linguis- based group at The BIA reasoned that the identifiable as Id. 233-34. In In re group “particular was not a so- tic commonalities.” Id. 343. proffered meaning Fauziya Kasinga, of the INA I. & N. Dec. 357 cial within the (be- (BIA 1996), identifying characteristic found because the participate “young refused to to be women of the ing a taxi driver who Tchamba-Kunsunto Tribe who had not stoppages) work guerilla-sponsored subjected geni- [female immutable. The taxi drivers could had been FGM tribe, jobs practiced by any persecution by changing or tal mutilation] avoid Id. at acceding guerrillas’ par- oppose practice.” to the demands to and who 365. the BIA The BIA reasoned: ticipate stoppages, in work is, ever, "(T)he necessarily require 'ejusdem generis rule’ that where does not provision scope general per- general be limited in its to the words follow an enumeration of things specifically things, by particular identical named. Nor does sons or words of a apply a con- specific meaning, general are not it when the context manifests such words Walasek, extent, trary United States v. in their widest but are intention.” to be construed (3d Cir.1975) (quot- applying only persons F.2d 679 n. 10 to be held as (Rev. Dictionary ing 4th ed. things general kind class as Black’s Law in the same rule, 1968)). specifically mentioned. The how- those Acosta, particu- In accordance with group” as enunciated in asy- Acosfa. The applicant lum group lar social is defined common was Guatemalan woman who was the victim of horrific domestic characteristics members of the violence. The IJ found that the applicant change, cannot or should not be persecuted had been because of her mem- required change because such charac- bership in the teristics are fundamental to their indi- “Guatemalan women who have been inti- vidual identities. The characteristics of mately involved with Guatemalan male being “young woman” and a “member companions, who believe that women are of the Tchamba-Kunsunto Tribe” cannot to live under male domination.” at 911. Id. changed. be The characteristic of hav- BIA rejected The that grouping qualify- as ing genitalia intact is one so fundamen- ing for relief under the INA. The BIA tal identity young to the individual of a explained that group accepted: IJ woman that she required should not be appears to have been principally, defined change it. if not exclusively, for purposes of this Id. at In In 366. re V-T-S- 21 I. & N. case, asylum regard without to the (BIA 1997), Dec. 792 the BIA found that question of anyone whether in Gua- “Filipinos Filipino-Chinese of mixed an- temala perceives this group to exist in cestry” “particular constituted a any form whatsoever ... group [T]he group” because the being characteristics of largely defined in the abstract. It a Filipino Filipino-Chinese of mixed ances- seems to bear little or no relation to the try ... “are immutable.” Id. at 798. The inway which might Guatemalans identi- country also relied on reports that fy subdivisions within society their own showed that “[ajpproximately percent 1.5 perceive otherwise pos- individuals to of the Philippine population has an identifi- sess or lack important characteristic able background.” Chinese Id. proposed trait. The group may satis- However, in Vigil, Matter 19 I. & N. fy requirement the basic of containing (BIA 1988), Dec. 572 held that the an immutable or fundamental individual male, unenlisted, of “young, urban But, characteristic. to be for Salvadorans” was not a asylum viable purposes, we believe group” because the identify factors which there must also be showing some howof the group “are not factors that are ‘funda- the characteristic is understood in the mental identity individual or con- we, society, turn, alien’s such that ” science.’ Id. at 574-75. may understand potential per- R-A-, (BIA In re I. & N. Dec 906 persons secutors in see sharing the fact 1999),8 began the BIA to add to its inter- characteristic warranting suppres- pretation of the term “particular social sion or the harm. infliction of In re R-A- Attorney was later vacated tion because no final rule had been issued. anticipation General in new so, rules. In re R- doing Id. In Attorney recog- General A, (A.G. 19, 2001). 22 I. & N. Dec. 906 Jan. nized the four new decisions of the BIA con- about, The sought rule comment cerning "particular group,” all of alia, inter whether involving or not claims upon analysis which rested of In re R-A-. might domestic “conceptualized violence be below; however, Id. We discuss those cases and evaluated asy- within the framework of language because the BIA's in In re R-A- is so lum law.” Government's Br. at 27 n. 7. Ulti- here, important to the claim before us we take mately, Attorney General directed the BIA liberty quoting reasoning the BIA's review, to refer the case to him for and re- length. In re R-A- at manded the case to the BIA for reconsidera- added). society. [applicant] referring Guatemalan (emphasis at 918 Id. has official tolerance of her hus- shown on the doctrine reliance prior to its But, for “so- cruelty toward her. Acosta, band’s the BIA ex- ejusdem generis she has not shown group” purposes, cial plained: society expected by that women “particu- term ruled that the have [W]e abused, any or that there are adverse is to be construed lar social or their consequences women societal statutory the other four keeping with if are not abused. husbands the women per- that are the focus characteristics determinative, promi- While not race, nationality, and religion, secution: importance a characteristic nence or other four char- opinion. These political society is another bear- within factor sepa- typically ones that acteristics are recognize will ing on whether ive coun- factions within various rate “particular social part as of factor —tries n group” refugee provisions. under our If case, has [applicant] In present important given a characteristic is in a with abusive living that women shown society, likely it is that distinc- more legal prac- variety face a of partners society within that tions will drawn obtaining protection problems tical those who share and those who between But, relationship. leaving the abusive the characteristic. do not share has not shown [applicant] in- who have been toomen “Guatemalan starting point group” for “social The intimately with Guatemalan

volved im- analysis remains the existence of an believe that companions, who male individual char- mutable or fundamental male domina- are to live under women in accordance with Matter acteristic recognized is group is a tion” of declared, however, Acosta. We never faction, or is to be a societal understood starting point assessing so- segment recognized otherwise of in Acosta cial claims articulated group [appli- The population, in Guatemala. ending point. The was also the that the victims has shown neither cant] factors case, beyond Acosta’s look to in this we as abuse view themselves spouse test, prerequi- not “immutableness” nor, most im- group, this members of sites, rule out the use and we do not see oppressors their male portantly, that may additional considerations part as companions victimized their group on whether a social properly bear .... this in an individual recognized should be not even alleged persecutor if the are consistent case. But these factors existence, it be- group’s of the aware four operation of the other with understand how comes harder asylum are therefore grounds for may have been motivated persecutor judgment, in our for consid- appropriate, in the “membership” the victim’s “particular group” eration harm. to inflict the context. fails in anoth- showing [applicant’s] added). (emphasis Id. at 918-20 noteworthy our respect, one that is er deciding the BIA was whether has While Kasinga. She ruling of Matter by asylum appli- groups proposed itself is an social spouse abuse not shown attribute, or, “particular constituted a in other cants important societal INA, courts of various being group” under words, the characteristic to make sense of trying were also appeals within important is one that is abused INS, concept. supra, perimeters Fatin v. we for a protected group within scope held that the BIA’s construction of the of the Id. at 367. [INA].” “particular term Matter of appeals Other courts of have used varia- a permissible Acosta was construction of tions of the interpretation “par- Acosta and, Immigration Nationality Act group.” ticular social Ap- The Court of therefore, entitled Chevron deference.9 peals for the Ninth Circuit has it defined Accordingly, at 1240. adopted F.3d we as: that construction.10 Id. Applying the people closely [A] collection of construction, affiliated Acosta recognized we as a other, with each who are actuated a group “con- impulse some common or interest. Of sist[ing] of Iranian women who [found] central concern is the existence of a country’s gender-specific their laws offen- voluntary associational relationship sive and comply [did] wish to members, among purported However, which them.” Id. at 1241. we af- imp arts some common characteristic firmed the BIA’s denial of relief because that is identity fundamental to their the alien had not requisite established the member of that persecution. group. discrete social Id. at 1243. Following our adoption INS, Sanchez-Trujillo Acosta 801 F.2d construction, (9th Cir.1986).11 we held that group of 1576 Ap- The Court of former escaped child soldiers who had peals for the Second Circuit has defined guerrilla organization’s army grouping constitutes “comprised as one of indi- “particular social group” within the mean possess viduals who some fundamental ing of Lukwago Ashcroft, the INS. v. 329 in characteristic common which serves to (3d Cir.2003). 157, However, F.3d 178-79 distinguish in eyes them the of a persecu- we held that homeless street in eyes children tor —or in the of the outside world in Gonzales, INS, Honduras did not. Escobar v. general.” 660, Gomez v. 947 F.2d (3d 363, Cir.2005). (2d Cir.1991) (citations 417 omitted). F.3d 367 In Esco 664 Un- bar, explained: we “Poverty, definition, homelessness der that “the attributes of a youth are far too vague particular and all encom social group recogniz- must be passing to be characteristics that set the able and discrete.” Id. Cardoza-Fonseca, 421, 9. In INS v. 480 U.S. recognized 11.The Ninth Circuit later 445-50, 1207, 107 S.Ct. 94 L.Ed.2d characteristics, 434 groups sharing immutable (1987), Supreme Court held that the BIA’s identity such identity, as familial or sexual interpretation Refugee of the Act is entitled to could groups also be considered social within pursuant deference to the standards set out in meaning of the INA. v. Hernandez-Montiel U.S.A., Chevron Inc. v. Natural Resources De- INS, 1084, (9th Cir.2000) 225 F.3d 1093 Council, Inc., 837, " 467 U.S. 104 S.Ct. fense (holding 'particular group' that a social is 2778, (1984). 81 L.Ed.2d 694 association, by voluntary one united includ association, ing a former an innate 10. Several appeals other courts of have characteristic is so fundamental to the adopted the Niang Acosta construction. See identities or consciences of its members Gonzales, 1187, (10th v. 422 F.3d 1199 Cir. members either cannot or should not 2005); be re INS, Castellano-Chacon v. 341 F.3d it.”), quired 533, change (6th overruled Cir.2003); on other Yadegar-Sargis 546-48 v. Gonzales, INS, 596, grounds by (7th Cir.2002); Thomas v. 409 F.3d 297 F.3d 603 Her INS, (9th Cir.2005) (en 1084, banc). 1177 v. 225 F.3d nandez-Montiel 1093 (9th Cir.2000); INS, v. 25 F.3d Safaie (8th 1994); INS, 640 Cir. Gebremichael v. (1st 1993). F.3d Cir. BIA added addi ture” of Beginning being confidential informant “is generally considerations to its definition such that it public tional is out of the group” as first articulat “particular events, social In the view. normal course of an In In re 23 I. & N. ed Acosta. C-A- informant against the Cali cartel intends to (BIA nom., 2006), Dec. 951 sub Cas remain unknown and undiscovered.” Id. aff'd General, Attorney 446 F.3d tillo-Arias Thus, proposed the BIA found the group (11th Cir.2006), that the held did not qualify “particular for relief as a visibility “social of the members of a social under the INA. group important con claimed social The BIA also considered whether the of a identifying sideration existence group requisite was defined with the par- ” ‘particular group.’ social Id. It also held ticularity, and concluded that was an element in the group of “noncriminal informants” was group analysis. Id. at loosely “too defined to require- meet the Accordingly, of “former 957. particularity.” ment of at Id. 957. working drug noncriminal informants J-G-U-, In In re A-M-E & 24 I. & N. against drug the Cali cartel” was not a (BIA 2007), nom., Dec. 69 sub Ucelo affd because the (2d Mukasey, Gomez v. 509 F.3d 70 Cir. visibility.” Id. group [did] have 2007), the BIA returned concepts to the There, began analysis the BIA its with the visibility There, and particularity.

definition It used Acosta. Id. “[fjactors opined the BIA to be prior then noted that some of its decisions considered in determining par whether a involving particular groups “have ticular social group exists include whether i.e., reeognizability, considered the the so group’s gives shared characteristic visibility, question. cial requisite members the visibility social groups Social based on innate characteris readily make them family society tics such as sex or are identifiable relationship and whether the can generally easily recognizable group and under be defined with stood others particularity constitute sufficient to delimit its mem H-). groups.” (citing Id. at 959 Matter bership.” Id. at 69. The proposed group of However, inexplicably, who, and rather the was affluent Guatemalans it was al Board of also noted some its other leged, greater are at a risk of crime in decisions “involved characteristics general subject or who are to extortion or highly were recognizable by visible and robbery particular. BIA The found that country question.” others in the Id. background “there is little in the evidence alia, (citing, inter Kasinga; Matter of wealthy record to indicate that Guate of Toboso-Alfonso; Matter and Matter malans recognized group of would be as a of Fuentes). Finally, explained the Board at greater general that is risk of crime in past experi that “the two illustrations of robbery particular.” or extortion or Id. might group ences that suffice for social at 74. The BIA noted that “violence and Acosta, i.e., membership in Matter ‘for of crime in appear pervasive Guatemala to be military leadership ownership,’ mer or land at all socio-economic levels.” Id. at 75. easily recognizable traits.” Id. Because of pervasive the nature of crime people relatively “even visibility The BIA noted that because is modest re important identifying may possess an element in sources income sufficient land, particular group, crops, existence of a con- or other forms of wealth to requi- potential targets” fidential informants do not have that make them of criminals. visibility “very Accordingly, site social because the na- Id. held that group group requires ed social of affluent Guatemalans proposed group visibility’ Id. bound- particular test.” have and well-defined “fails the ‘social aries, recognized that it level possess group did found that BIA also The The BIA visibility.” of social Id. at 582. “particulari- satisfy requirement concepts ‘particu- “[t]hese believed ty:” larity’ visibility’ give greater and ‘social “affluent” “wealthy” and terms The to the definition of specificity amorphous to alone are too standing in Mat- group, which was first determined for de- adequate an benchmark provide ter Acosta.” Id. membership. Depend- termining group wealthy perspective, on one’s ing the BIA regard “particularity,” With echelon; very top limited to the may be wrote: owners include small business might [or] particularity require- The essence relatively comforta- living a and others proposed group ment ... is whether the generally impover- in a ble existence accurately can described in a manner be country. concept Because the ished indeterminate, sufficiently group would distinct proposed wealth is so vary society question, little as 1 recognized, could from as be in the percent much as 20 percent persons. to as a discrete class of While the more.... The character- population, may proposed group size of the be simply affluence is too of wealth or istic important determining factor in whether inchoate, pro- and variable to subjective, recognized, key can so membership in a basis for vide the sole question is whether the de- group. scription sufficiently particular, or is ... to create a bench- amorphous Id. at 76. too determining group mark for member- noted, applied the BIA has its “social As ship. “particularity” requirements gang who resisted re- proposed groups (citation quotation Id. at 584 and internal S-E-G-, cruitment In Matter efforts. omitted). marks The held (BIA 2008)12, one of 24 I. & N. Dec. 579 proposed group particularity. lacked groups was: “Salvadoran up explained group “make[s] youth subjected have been to recruit- who potentially large segment a and diffuse of have re- ment efforts MS-13 and who society, gang and the motivation of mem- jected membership on their own based recruiting targeting young bers in and moral, religious opposition to personal, quite from motivations males could arise and activities.” Id. at gang’s values any that the males apart perception from There, that it was explained question in members of a class.” Id. were in guided by holdings its recent Matter of group BIA held that the proposed Matter C-A- The A-M-E & J-G-U- visibility” in as well. It wrote: “membership purport- that: lacked held 26, 2008, government's August petition ed the motion to dismiss for 12. On for review Appeals jurisdiction, grant was docked with the Court of for the and did not lack of Eighth v. Mu Circuit sub nom. petitioner’s request Gonzales-Mira vacate the that the court (8th Cir.2008). July kasey, No. 08-2925 On opinion light precedential in of the BIA's or 28, 2009, reopened the case and the BIA Holder, reopening. der Gonzales-Mira remanded, prece did vacate the but it not 08-2925, (8th Sept. 09-2678 Cir. Nos. 9, 2009, September dential decision. On 2009). Eighth grant Appeals Circuit Court of for the proposed group meaning lar social within the question The whether of the It req- explained: a shared characteristic with the INA. has consid- uisite “social must be particular group [T]he identified country in the context of the ered ... “persons gang as resistant to mem- feared. persecution concern and the bership” visibility lacks the social that [applicants] The this case victims identify would allow others to its mem- harassment, beatings, and threats part a group. bers such Persons gang a criminal in El Salvador. from joining who resist gangs have not been background There little in the evi- part socially shown to be of a visible dence of record to indicate Salvado- society, within Honduran and the youth by gangs ran are recruited who [applicant] not allege pos- does that he ... join per- but refuse to would be any sesses characteristics that would by society, ceived as a or society cause others Honduran to rec- higher suffer from a these individuals him ognize as one who has gang refused incidence of crime than the rest of the course, recruitment. Of individuals who population. gang may resist recruitment face the assert have a [applicants] risk of harm from gang. the refused (i.e., specific join reason their refusal to But such a risk would arise from the gang) to fear the MS-13 would sub- individualized reaction of gang to the ject them to more violence than the specific behavior of prospective re- general population. We do doubt cruit. There is no showing that mem- gangs ... such as MS-13 retaliate bership larger body in a of persons re- join against those who refuse to their gangs sistant to is of anyone concern to However, gangs ranks. such have di- Honduras, including the gangs them- against anyone every- harm rected selves, part or that individuals who are with, perceived one to have interfered body persons are seen as a to, might present who a threat their segment any of the population mean- criminal enterprises pow- and territorial ingful respect. [applicants]

er. The are therefore not in Id. at 594-95. substantially different situation from lengthy We include this rather anyone gang, has who crossed summary legal landscape surround perceived who is to be a to the threat ing claims of “a gang’s interests. order to address Valdiviezo-Galdamez’s Id. 586-87. argument by applying that the BIA erred The BIA pro- denied relief because the adjudicate a new standard to his claim. posed group lacked and We understand Valdiviezo-Galdamez to be therefore, visibility,” and was not a arguing that the BIA erred because it 13 “particular group.” rejection its of his claim on Matter based E-A-G-, 24 Matter E-A-G- I. & N. Dec. and Matter S-E-G- which of of of (BIA 2008), held, alia, 30, 2008, the BIA July inter were decided on which he that Honduran gang past males who resisted submits was the time which he “particu- addressing recruitment did not constitute a could have filed briefs those Mukasey, "young resisting In Santos-Lemus v. 542 F.3d of men in El Salvador 738, (9th Cir.2008), ap- gang visibility” 744-747 the court of violence” lacks the "social peals "particularity” "particular relied on Matter and own and to S-E-G- its constitute of precedent concluding meaning of the INA. within received that notice because she However, of “so- that she concepts decisions.14 changed her changed jobs and had and discussed had visibility” cial E-A- and Matter This claim is meritless. in Matter S-E-G- address. of of Rath- in those cases. originate not G- did concepts 3, explained, noted, supra, both n. no one er, have As see as we In A-M-E & re from In re C-A- the BIA on appearance arise entered an J-G-U-, prior to our were decided which on remand. behalf Valdiviezo-Galdamez’s case on of Valdiviezo-Galdamez’s Thus, remand attorney had no of record. Valdi he Thus, 7, the BIA did 2007.15 September and did appeared pro se viezo-Galdamez to determine a new standard apply Moreover, even if Simon not file a brief. group.” “particular in a membership address, clearly it changed her had Rather, other simply applied BIA two to advise the BIA of responsibility her so- gang recruitment-based involving cases 1003.2(b)(1). § change. See 8 C.F.R. require- in which the cial claims also contends Valdiviezo-Galdamez “particulari- of “social ments because deprived process he was of due applied. ty” were discussed notify him that it intended the BIA did not by applying apply Matter S-E-G- and Matter B. The BIA erred new to of membership determine This contention is standard to E-A-G- to his case. First, with- in a merit. we know of no also without providing out Valdiviezo-Galdamez authority require that would opportunity an to be with notice or have notified Valdiviezo-Galdamez of the heard. case, apply it to his and he law intended support that would his claim. offers none submits that Valdiviezo-Galdamez Gonzales, 1107, Theagene v. 411 F.3d See process by applying him BIA denied due Cir.2005) (9th (finding asy- that the Matter S-E-G- and Matter E-A-G- authority lum no for the applicant “cited him affording him notice of its without right that an to due proposition alien’s those cases to decide his apply intent to ... process is violated when the Board opportunity him an to file appeal giving legal authority to a applies controlling responsive brief. He contends informing the alien pending case without copy to send a of its notice of failed providing opportunity respond”); record, attorneys to his Martin briefing (“Though a tribunal see also id. 3, Duffey Ayodele P. See n. Gansallo. in such requests supplemental often briefs supra. govern- He also contends that the cases, pending new law to a case applying certified that it served the notice on ment not, Simon, any notice does under authori- him in his without represented Nicole who us, However, ty process.”). he cited to offend due Sec- appeal first to the BIA. ond, required apply the BIA is new law claims that there is no reason to believe 30, 15, 2005, by April were due 2008. It later extended 14. On June the IJ denied Valdivie- applications May for relief. On filing zo-Galdamez's deadline to 2008. Two 27, 2006, February summarily later, the BIA af- July the BIA decid- months 7, 2007, September the IJ. On we firmed and Matter E-A-G-. ed Matter S-E-G- the BIA for a determination of remanded to 15, whether Valdiviezo-Galdamez’s so- 15. In re C-A- was decided on June 2006 group "particular cial was a was decided on and In re A-M-E & J-G-U- meaning INA. within the of the 31, January 2007. 9, 2008, April briefing On the BIA issued schedule, informing parties that the briefs

603 INS, 1148, 179 considering to its review. Ortiz F.3d in the interpretation BIA’s (9th Cir.1999). Act, 1156 the we ask “whether Congress has directly spoken to precise question at requirements The BIA’s C. of “social Chevron, 842, 104 issue.” 467 U.S. S.Ct. visibility” “particularity” and are not, If 2778. it has we may not “simply contrary to the intent of the statute. impose own [our] construction of the stat Valdiviezo-Galdamez submits that 843, ute.” Id. at “Rather, S.Ct. 2778. requiring prove visibility” him to “social if the statute ambiguous is silent or “particularity” contrary to the respect issue, to the specific the question provisions interpret of the INA. We for the court is whether the agency’s an argument referring “partic- as to the term swer permissible is based on a construc ular social contained in the 8 tion of the statute.” Id. 1101(a)(42)(A). § U.S.C. As we have ex- Valdiviezo-Galdamez contends that plained, Congress there defined the term requirement BIA’s that a “particular social However, in “refugee” as used the INA. group” possess the elements of “social visi- argument requirements his that the two bility” “particularity” is not entitled to contrary are to the intent of the statute is Chevron deference. problematic for explained reasons we There, Fatin. we observed that the statu- (i). Visibility” “Social tory language “standing very alone is not meaning instructive” as to the of the term C-A-, In In re 23 I. & N. Dec. at 959- group,” and that “neither 60, the BIA referred to visibility” “social legislative history of the relevant Unit- alternatively “recognizability.” In at- negotiating ed States statutes nor the his- tempting to refine the concept of “social tory of pertinent agree- international visibility,” the Board explained that in its ments much light meaning sheds of the of other decisions recognizing “particular so- ” phrase ‘particular group.’ groups,” groups cial “involved charac- why F.3d at That we looked to highly teristics that were visible and rec- interpretation phrase the BIA’s ognizable others in the country Acosta, Matter applied the Chevron J-G-U-, question.” In re A-M-E & analysis interpretation, to that found the 74, I. & N. Dec. at the BIA held that interpretation BIA’s permissible, and held visibility” “social requires that the “shared interpretation BIA’s was entitled general- characteristic of the should to Chevron deference. ly recognizable by others the com- munity” and that “members requirements D. The BIA’s of “social perceived as a group soci- visibility” are not ety.” entitled to Chevron deference. noted, Valdiviezo-Galdamez contends supra, As we have see n. Cardoza-Fonseca, requirement that this INS v. U.S.

445-50, is inconsistent with a 107 S.Ct. 94 L.Ed.2d 434 number of the BIA’s (1987), Supreme prior Court held that the decisions is therefore not enti interpretation BIA’s of the Refugee Act is tled to deference under Chevron. We Therefore, entitled to Chevron deference. agree.16 note, however,

16. We approved do that the Court of and Eleventh Circuits have all First, Second, Appeals Eighth, visibility” requirement for the Ninth BIA’s "social for a 604 Acosta, Although we afforded the BIA’s recog- BIA of

In the wake interpretation “particular of “particular groups of nized a number Fatin, in this did not no indica- Chevron deference there was where groups” adju agency license to thereafter give the possessed members group’s tion claims of social status incon highly dicate that were visible “characteristics are sistently, irrationally. “Agencies country in the by others recognizable Chevron, free, to errat generate under characteristics possessed question” in ic, of their interpretations irreconcilable “socially visible” or that were otherwise Consistency ... over Indeed, governing statutes we are hard- recognizable. subjects a fac time and across is relevant how the “social visi- to understand pressed deciding when wheth prior ] in tor Chevron [under was satisfied bility” requirement agency’s interpretation current is By way er the the Acosta standard. using cases ” above, Marmolejo-Campos v. BIA has ‘reasonable.’ examples noted (9th Cir.2009) Holder, 903, 920 groups to con- 558 F.3d following of the found each (Berzon, J., dissenting) (citing Cardoza- pur- for a stitute Fonseca, 30, 480 at 446 n. 107 S.Ct. women who are U.S. refugee status: poses (Mat- 1207) (emphasis original). in Since genital mutilation opposed to female is inconsis required requirement Kasinga), homosexuals ter of (Matter decisions, we conclude Cuba, past tent with register of Toboso-Alfon- it addition to the so), of the El unreasonable and former members Salva- (Matter Fuentes). refugee sta requirements establishing for police dor national Yet, upon persecu tus where that status turns anything opin- the Board’s neither membership partic in a under- tion on account of general in those cases nor ions group. groups, suggests ular social standing any of those groups are “so- that the members only appeals We are not the court of each of cially visible.” The members express require- concerns about the BIA’s have characteristics which groups these visibility.” In v. ment of “social Gatimi internal to the individual completely (7th Holder, Cir.2009), 578 F.3d 611 Gatimi or known other and cannot be observed Kiku- Kenyan and a member of the was (or society question members of the Kenyan yu That tribe dominated tribe. unless group) even other members of the 1995, at the relevant times. politics and until the individual member chooses joined Kikuyu group called the Gatimi known. make that characteristic “Mungiki.” practices Tribal included com- undergo genital female any groups pelling If of these women a member mutilation. Gatimi defected from applied asylum today, the BIA’s “social result, he was pose Mungiki an un- 1999. As visibility” requirement would status, tortured refugee subsequently kidnapped obstacle surmountable Mungiki group. That already held that members of the though even has sought out any groups quali- group repeatedly also Gatimi’s membership of these female undergo if an alien can es- wife in order to have her refugee fies for status family genital Ultimately, “on ac- mutilation. persecuted tablish that s/he sought asylum. fled to United States and group membership. count of’ that 624, Cir.2008); (8th Santos-Lemus "particular group" and have accorded F.3d 629 See, 738, Cir.2008); (9th e.g., v. Mukasey, it Chevron deference. Scatambuli v. 542 F.3d 746 Cir.2009); Holder, (1st Castillo-Arias, (11th 558 F.3d 59-60 Cir. 446 F.3d Mukasey, F.3d v. 2006). Ucelo-Gomez (2nd Cir.2007); Davila-Mejia Mukasey,

605 application squared Sepulveda.” An IJ denied Gatimi’s for not be Sig- Id. alia, that asylum, holding, inter defectors nificantly for our purposes, the court of Mungiki not constitute a from did appeals say: went on to BIA af- “particular group.” social sense; visibility] makes no [social nor petition that basis. Gatimi’s firmed on On attempted, has the Board any this or review, Appeals for the Court of for the ease, explain other reasoning be- that Circuit noted one of its Seventh hind the criterion of social visibility. decisions, Gonzales, v. prior Sepulveda yet who undergone Women have not (7th Cir.2006), it had held that: F.3d genital female mutilation in tribes that attorney subordinates of the [F]ormer practice any it do not look different from general of Colombia who had informa- anyone A else. homosexual in a homo- insurgents plaguing tion about the phobic society will pass as heterosexual. nation a “particular group.” were you If are a member of a group that has They targeted had been for assassina- targeted been for assassination or tor- insurgents, many tion had ture or some other mode of persecution, employee been assassinated. While an you will take pains to avoid being social- resign attorney general’s could from the visible; ly and to the extent office, a resign grpup he could not from target group members of the are suc- employees defined as former of that of- remaining invisible, cessful in they will fice; a employee, always once former be “seen” other people (unless former employee one is reem- society a segment population.” “as of the ployed by former employer). one’s employees Those former of the Colombi- Gatimi, 578 F.3d at 615. In adjudicating attorney general hard, tried one can review, petition Gatimi’s the court rea- sure, and, be to become invisible so far soned: cannot “[w]e see how this case can appears, were unknown to Colombian as. distinguished be Sepulveda, from which society aas whole. Instead, did not cite.” Id. [BIA] appeals court of noted that had agree. Id. We cited cases “which hold must explained The court then the distinction visibility’ have ‘social to be a member of a ” between situation and that which Gatimi’s ‘particular group[.]’ Applying Supreme confronted the Court in Gonzales formula, visibility” “social the BIA had Thomas, U.S. 126 S.Ct. that: found (2006): 164 L.Ed.2d 358 there was no evidence that pos- Gatimi any sesses characteristics that would Supreme We mindful Court’s cause in Kenyan society others to rec- admonition to the appeals courts of ognize him former member of ..., Gonzales v. Thomas Mungiki.... showing There is no Board’s definition of in a membership larger body persons group” is entitled to deference. The Mungiki resistant is of concern to issue in that case family was whether a anyone Kenya or that such individu- could a particular group, segment popula- als are seen as a difficult issue on which the Board had any tion in meaningful respect. not opined; and the Court held that the Id. opportunity Board should have an to do appeals regarding

The court of so. But as a concluded that “social [i.e., visibility”] formula determining “particular “[t]his can- criterion for so- BIA decisions past relied on government inconsis- Board has been group,” cial ‘particular found “that to be a social argued silent. It has rather than tent groups” visibili- “particular group social a must have ‘social group’ to be groups ” visibility, rejecting posi- to social at ty.’ reference Id. 430. without tion, explained: the court In re Toboso- Kasinga, re (citing In Id. Acosta). and In re In re Fuentes

Alfonso, means—and its By government this the ... lawyer emphatic argument was at agency’s an administrative “When you can a member of a inconsistent, a cannot court decisions only complete stranger if a group lines and of the inconsistent defer pick one you if he identify could as a member one, only within the unless one is to that street, you in the because encountered to inter agency’s discretion scope pattern, your appearance, gait, speech to make it enforces or the statutes pret character- or other discernable delegate.” Id. at 616. behavior Congress’s policy as noted that other courts istic. The court Gatimi to the Board on had deferred appeals judicial support, position This has some issue, fact that some but the mere this ..., rejected it in but we have Gatimi analysis disagreed with its courts appellate Gatimi, cases cited in as and other As the court ex persuasive. of the use of “exter- misunderstanding work just don’t see what plained: “We identify nal” criteria does; the candidate visibility” “Visibility” in the literal group.... flunked the basic “social groups in which the Board sometimes sense (where ... ... in Acosta test declared might the term be relevant used originated).” 578 F.3d test it is persecution, whether there is but its criti- appeals

The court of reiterated persecu- irrelevant to whether if there is handling “particular cism of Board’s ground group on the tion it will be claims in Benitez Ramos it is unclear wheth- membership. Often (7th Cir.2009). Holder, F.3d 426 using is the term “social er the Board There, appli- denied an alien’s had sense, visibility” in the literal removal based on his cation for relief from sense, criterion” or even- “external refugee sta- claim that he was entitled it understands the difference. whether “tattooed, gang former tus as a Salvadoran (citations omitted). Id. joined had petitioner member.” Here, that “so- government contends fourteen, but subse- gang when he was visibility” on-sight not mean visi- cial does to the quently came United States Rather, are told that “social bility.17 we He ar- “born-again became a Christian.” a means to discern the neces- Salvador, if to El he gued that returned i.e., group perceptibility, sary element of recognized gang would be member unifying of a characteristic the existence engage because of his tattoos and forced that makes the members understood religious practices which violated his society to constitute a social others scruples. The BIA concluded that group recognized as discrete group that he claimed to be a member understand- society. We have a hard time did not constitute a does ing why government’s definition Id. at 429. On group” under INA. visibility,” join and we “on-sight not mean appeals, review before the court of Ramos, F.3d at cited su- de- 17. The makes this contention Benitez contrary pra. spite apparent to the its concession Appeals the Court of for the Seventh Cir- ment of onto social wondering cuit in “even-whether claims no [the BIA] fares better.

understands the difference.” (ii). “Particularity” noted,

As the courts have members of Valdiviezo-Galdamez groups argues that have been also that persecuted some requirement the BIA’s of recognized “particular group” “particularity” a social should not be certainly take to avoid afforded Chevron deference. pains being would S-E-G-, In Matter the BIA society they explained: identified a where would of government agents face if persecution The particularity require- essence of the Yet, they belonged group.18 knew to the ... proposed ment is whether the group by attempting persecution by to avoid accurately can described a manner blending society large, in to the at the sufficiently group distinct that the would Boards’ rational would cause them to for- be recognized, society in the in question, eligibility asylum feit based on the as a persons. discrete class While the persecution they experience would if rec- size of the proposed group may be an ognized a as member of the important factor in determining whether group in society. social their group the can recognized, be so key the question is proposed whether the de- Thus, government’s the attempt to add scription sufficiently is particular, or is gloss to the BIA’s reliance on “social visi- amorphous too ... to create a bench- bility” phrase is odds with the itself as mark for determining group member- well as the BIA’s definition in In re C-A- ship. Indeed, and In re A-M-E & J-G-U-. (citation rather than in- adding gloss to the BIA’s 24 I. & N. Dec. at 584 and inter- omitted). terpretation, the government quotation seems to be nal marks Valdiviezo- Galdamez, attempting spackle to over the cracks in presumably focusing on the sec- way approached has social ond sentence in “particu- the definition of group government’s position larity,” cases. The nothing contends there is appears to be little more than an attempt statutory language suggests arising to avoid the tension Congress from the BIA’s place any intended to numerical interpretations phrase, various of that protected and limitation on the ground of a the fact present interpreta- “particular that, that the BIA’s group.” He notes asylum Acosta, tion would have excluded in deferring to the under granted claims that were in In Kasinga, appeals re courts of “particular have said that Toboso-Alfonso, In re and In re Fuentes. “encompass[es] any group, noted, cases, As we have in each of those however populous, persecuted because of aliens’ social claim was success- shared characteristics that are im- either ful, though question even was mutable or fundamental.” Gao Gon- Thus, “socially zales, (2d not reject Cir.2006), visible.” we 440 F.3d vacat- government’s attempt graft nom., re- grounds ed on other sub Keisler v. Gao, quirement onto Valdiviezo-Galdamez’s 552 U.S. 128 S.Ct. reasons, (2007).

claim here. For similar gov- L.Ed.2d Accordingly, Valdivie- attempt graft require- ernment’s zo-Galdamez submits that the BIA’s at- Kasinga, pra. 18. See Matter Matter Toboso- Fuentes, discussed, Alfonso, and Matter su- firmity government’s as the latter. The limitation is a numerical impose

tempt is inconsistent with “particularity” use of to deference. not entitled in the BIA decisions discussed prior responds by arguing opinion. visibility” portion of this requirement “particularity” “partic- a adopting therefore hold We a numerical limita- impose attempt ularity” requirement is unreasonable be- “particular tion on the size many it is inconsistent with cause According government, group.” prior BIA’s decisions. merely functions to assess group has definable whether sum, because the BIA’s re that it can constitute dis- so boundaries that a quirements persons. class of group, tinct discrete visibility” possess the elements of “social view, “particularity” government’s In the are inconsistent with “particularity” and from “social a different function serves decisions, requirements BIA those prior asy- determining whether the visibility” By deference. are not entitled Chevron cognizable has described a applicant lum the re holding that the BIA’s addition of Thus, gov- group. according to the social visibility” “par of “social and quirements ernment, visibility” wheth- assesses ticularity” “particular to the definition of has identified a applicant er the it announced Acosta is not unifying perceived characteristic that is deference, entitled to Chevron we do not by society, apart discrete or set as suggest that the cannot add new re “particularity” while examines whether to, quirements change, or even its defini unifying characteristic for the “particular group.” Clearly, tion of definable, proposed group opposed is as change adopt poli can agency “an its subjective. gov- diffuse or being too Ashcroft, cies.” 286 F.3d Johnson concepts argues ernment these two (3d Cir.2002). However, an agency related, they distinct and that have are but arbitrarily departs if it from its es “acts complimentary functions. precedents announcing without tablished principled that the reason for its decision.” Id. We do not believe (citation impose quotation a numeri- and internal marks using particularity is omitted). agency If an from an meaning “departs cal or size limitation on the However, group.” explanation we announced rule without or an “particular social alteration, any to discern difference avowed such action could be hard-pressed requirement “particularity” arbitrary, capricious viewed as [or] between the (citation in requirement of “social abuse of discretion.” Id. and and the discredited omitted) (bracket Indeed, visibility.” they appear quotation to be dif- ternal marks Here, explained, have concept original).19 ferent articulations of the same we attempt requirements to distin- the BIA’s addition of the government’s and the visibility” between confusion “social and to its guish the two oscillates obfuscation, con- definition of while times both decisions, Indeed, prior with its fusing obfuscating. “Particu- inconsistent “principled not announced a larity” little more than a has appears be adoption for its of those inconsis reworked definition of “social reason” will requirements. Accordingly, from the in- tent we and the former suffers same course, only group,” any changes 19. BIA must not announced must Of announce permissible “principled any changes it on a construction of the reason” for based "particular statute. makes to its definition pressed for and remand to the grant petition gang opposed review that he was proceedings to the BIA for further consis- membership gang in the because of his opinion. tent with this political opinion. claimed To the extent join that his refusal to the gang was based holding 2. The BIA erred in that Valdi- political on his opinion, his refusal was eligible was not viezo-Galdamez on an internally political opin- based held asylum upon political based his support ion which cannot a claim that he opinion. persecuted on political was account of that previously When we remanded to the opinion. Holding political opinion, with- BIA, Valdiviezo-Galdamez contended more, also out is not sufficient to persecu- show asylum that he was entitled to based on his tion on account of that political opinion. political opinion. He asserted that “he Holder, Mendez-Barrera v. 602 F.3d ‘on account persecuted of his inherent- (1st Cir.2010). There must be evidence ly political anti-gang opinion’ as evident gang political opinion knew of his join his refusal to the Mara Salvatrucha targeted him because of it. Id. How- rejected gang.” App. The BIA this ever, there is no such evidence here. claim, finding that it was foreclosed Elias-Zacarias,

INS 502 U.S. denying 3. The erred in Valdivie- (1992). There, 117 L.Ed.2d S.Ct. application zo-Galdamez’s for re- Supreme guerrilla the Court held that a lief under the CAT. organization’s attempts conscript to a Gua- noted, in denying As Valdiviezo-Galda- military temalan into its native forces did application CAT, mez’s for relief under the necessarily persecution not constitute on the BIA first that found Valdiviezo-Galda- political opinion. account of mez “failed to establish that it is more

The foundation of Valdiviezo-Galdamez’s likely than not that he subjected] will be political opinion argument is his contention to torture at the hands of the Mara Salva- “was, join by that his refusal to a gang gang.” App. trucha 12. The BIA found definition, expression political the of a that Valdiviezo-Galdamez’s “numerous in- opinion.” Valdiviezo-Galdamez’s Br. at 41. gang teractions” with the constituted argument upon He rests that an unpub- “harassment.” It Id. further found that lished decision in which an IJ that held “clearly the interactions did not involve the year nineteen old Honduran male’s refusal degree pain of ‘severe suffering’ con- join to Mara expres- Salvatrucha was an templated constituting torture.” Id. political opinion. sion of See Matter D- sum, 12-13. In the BIA found that Valdi- (San Antonio, Court, V Texas Immigration arguments regarding viezo-Galdamez’s the 2004). However, Sept. Valdiviezo-Galda- likelihood of speculative torture “are higher authority support mez offers no to not based evidence the record.” Id. join his contention that his refusal to at 13. was, definition, by

Mara Salvatrucha The BIA also concluded that even if it is expression political opinion. of a arguendo assumed that it likely was more Moreover, even if that we assume than not that he would be tortured at the join gang expression refusal to is an gang, hands of the Valdiviezo-Galdamez political opinion, there is no evidence that failed to that establish such torture would join his refusal to was gang instigation taken be “inflicted or at the of or expression political opinion. as an of that acquiescence pub- with the consent or of a There is no evidence that he ever ex- lic official or other person acting The BIA found that writing report. (quoting Id. 8 C.F.R. capacity.”

official that 1208.18(a)(1)). government to show sufficient § unwilling to control the “was unable review, petition for of his portion In this attackers.”20 [alien’s] contends that Valdiviezo-Galdamez for relief application of his BIA’s denial However, notes, government as the Val- disagree. error. We was under the CAT inference diviezo-Galdamez’s that only was not the reasonable inference that Assuming arguendo here, could be drawn and the drew suffered treatment Valdiviezo-Galdamez different, reasonable inference equally but con at the hands of Mara Salvatrucha testimony. explained: The Board from his torture, Valdiviezo-Galdamez stituted in that the torture was must also show that acknowledge [Valdiviezo-Galda- We “acquiescence public of a flicted with approxi- that made testified he mez] person acting an official official or other reports concerning his mately police five 208.18(a)(1). § “Ac 8 C.F.R. capacity.” gang, interactions with the numerous only torture quiescence requires they police and that the indicated willfully blind officials remain matter, investigating were but legal their conduct breach torturous However, any progress. he never saw Silva-Rengi it.” responsibility prevent the fact that [Valdiviezo-Galdamez] at 70. fo, 473 F.3d progress investigation unaware of police does not mean were testimony points Valdiviezo-Galdamez taking prob- measures to deal with the police protection on five sought that he ways lem were not obvious occasions, police but were different Although [Valdiviezo-Galdamez]. [Val- help, willing or not either not able testimony and the diviezo-Galdamez’s] by gang the members help prosecuting in background materials the record He testified that responsible. who were clearly gangs reflect that criminal are a always they him that police the would tell Honduras, problem in the record also investigating point were but that at no did government indicates that the seeks to Instead, anything happen.” he ever “see citi- problem protect combat the and its Valdiviezo-Galdamez testified that he con- See, e.g., Department zens. U.S. gang. at the hands of the tinued suffer State, Country Reports Honduras: on view, only In Valdiviezo-Galdamez’s the (Febru- Rights Human Practices —200k reasonable inference that can be drawn 2005) (Exh. 4) ary (indicating the exis- police from these facts is that the were joint police military patrols tence of and willfully gang’s blind to the torturous con- gangs, to combat crimes and and the duty to legal pre- duct and breached their legislation). anti-gang existence of argument part it. his in vent He rests I-Z-, App. upon ambiguity 22 I. & Dec. 13. Based upon In re O-Z- & N. (BIA 1998). There, asylum testimony, applicable Country the the Re- reported ports, government at three inci- the BIA found that the applicant had least threats, beatings willfully of Honduras was not blind to or dents of anti-Semitic gang’s police acquiesce but the took no action other than did not to the activities. earlier, govern- CAT.We 20. As noted a claim that the ant for relief under the assume "unwilling ment or unable to control the citing was Valdiviezo-Galdamez is to In re O-Z- & the attackers" is one which must be [alien's] analogy. by way an I-Z- by asylum applicant, proven an not a claim- reject also I precluded We Valdiviezo-Galdamez’s relying the from on coun- rely try background that the BIA could not on contention materials on At remand. outset, the we background arriving materials in note that its Valdiviezo- Galdamez I we were government addressing the conclusion was not whether government the willfully “unwilling or did not was acquiesce to the unable” blind gang to control the members. As gang’s activities. He bases we have that contention noted, that appropriate inquiry the on a we made in a statement footnote asylum context of an claim. wrote, I. We inter “unwill- Valdiviezo-Galdamez ing or to” applicable unable standard is not alia: to a claim Thus, for relief under the CAT. accept government’s cannot We con- the statement is dicta. background tention that materials hearing Moreover, submitted at the support even if the statement is inter- finding asylum IJ’s and denial of preted as precluding the BIA from relying First, claim. the IJ did not Country itself, address the on the Report the Country question: relevant whether the govern- Report cited to other sources which dealt “unwilling ment with the government’s unable” to con- Honduran response gang Second, gang trol activity. members. violence For exam- ple, Report materials referenced described a 2002 law “out- general lawing gang negative membership describe pre- attitude [and] scribing] prison Honduras towards “street terms from 3 to 12 years, children” and tattoos, depending upon the youths with individual’s and do not describe level of involvement any seniority.” govern- detail efforts ment to crack down on gangs. The Moreover, the BIA rely solely did not most relevant statement in these materi- Country Report. It also considered “During year, als is nearly that: half media government’s articles on the en- military personnel of all assigned were forcement its anti-gang law. App. joint patrols most of the time to with A September 2003 article noted that “Hon- police prevent and combat high levels police duran have making regular been gang criminal and This violence.” practice in recent weeks of descending does not refute Valdiviezo-Galdamez’s upon gang-ridden dawn,” neighborhoods at testimony, credible which the IJ failed “hauling [young suspects] jail.” off to address, police took no action App. 325. That same article that noted in response to his complaints that he the Honduran President asserted that the was repeatedly by gang attacked mem- police “only gang leaders, focused on with anything, bers. If the evidence that 2,000 goal coming arrests gang problem violence is serious in months.” 326. It App. further noted provides Honduras additional support the President asserted that the “immedi- for Valdiviezo-Galdamez’s claims. ate result percent drop [was] 70 in homi- 502 F.3d 289 n. 2. cides and an increase in gang members looking to into pro- check rehabilitation The “most relevant statement” we re- grams.” App. 326 ferred to in 2 footnote is taken from the findings of the United Department February States A 2005 article cited Presi- of State Country Reports in Honduras: dential statement Honduras was “win- Practices, (Feb. Rights 28, Human ning fight violence, against mainly by its 200J 2005). However, we do not believe that anti-gang implementing” App. law. this statement from article, 332. In that Valdiviezo-Galdamez same the President

612 that, years, necessary mand is so the Board can either the last three over stated percent a 90 decrease choose between its reasonable new re- has seen “Honduras quirements equally and its older but rea- percent and a 60 decrease kidnappings activities, precedents, sonable or reconcile the two gang as 800 members in ‘manas’ way. in a 2,000 interpretations coherent almost who were a total of out of jail.” App. now in arrested were originally addition, I am troubled BIA’s factfinding in this case. Should the BIA reports clearly sup adopt requirements choose to new for These media finding “govern group,” I believe that it port the BIA’s [gang] problem combat the must also remand to the IJ for further ment seeks to Thus, development. citizens.” the BIA’s factual protect its failed conclusion Valdiviezo-Galdamez likely that it was “more than not”

to show I tortured as a of the that he would be result by the Hon alleged blind[ness]” “willful[] A supported by sub duran It law that is settled Chevron deference Accordingly, it did not stantial evidence. “ interpretations to BIA applies ‘ambig- denying ap err Valdiviezo-Galdamez’s ” statutory uous terms’ in the INA. Negu- plication for relief under CAT. Holder, 511, 1159, sie v. 555 U.S. 129 S.Ct. (2009) 1163-64, 20 (quoting 173 L.Ed.2d YI. CONCLUSION 415, 425, Aguirre-Aguirre, INS v. 526 U.S. reasons, For all of the above we will (1999)) 1439, 119 S.Ct. 143 L.Ed.2d 590 for grant petition review and remand U.S.A., (citing Chevron Inc. v. Natural proceedings to the BIA for consistent with Council, Inc., 837, Res. 467 U.S. 842- Def. opinion, deny petition this but will (1984)). S.Ct. L.Ed.2d 694 review on the claim for relief under recognized have that “particular We CAT. group,” as used the INA’s definition of 1101(a)(42)(A), “refugee,” § 8 U.S.C. is so HARDIMAN, Judge, concurring Circuit ambiguous that “[b]oth courts and com- judgment. [it],” struggled mentators have to define agree my colleagues I “[rjead sense, in its literal broadest BIA’s in this case decision raises concerns phrase completely is almost open-end- remand, warranting but I write separately (3d INS, ed.” Fatin F.3d express my understanding scope Cir.1993). There should question, be no upon of the BIA’s discretion In remand. then, that applies, Chevron deference as view, my adopt is free to long agency’s [reading as “the of the stat- requirements additional on permissible ute] is based construc- visibility,” exactly and “social as the Board Chevron, 843, tion.” 467 U.S. at 104 S.Ct. has defined and rationalized them over years. only last five I problem The that evolving find with the BIA’s approach Supreme recognized Court in Chev- is that the agency interpretation cases ron that initial “[a]n acknowledge change instantly Board has failed to is not carved into stone.” 467 863, forthrightly course and how 104 It address U.S. S.Ct. 2778. is therefore change validity possible interpreta- affects continued for the BIA’s current conflicting precedent. Accordingly, prior re- tion of the statute to conflict with

613 constituting without an “imper decisions fication than what would suffice for a reading or “unreasonable” missible” policy new created on a blank slate. must, however, provide INA. The “ex when, Sometimes it for example, must— ” alteration,’ planation or an ‘avowed or its its policy upon new rests factual findings change ‘arbitrary, “could be ca viewed that contradict underlay those which its ” pricious, abuse of discretion.’ [or] prior policy; prior or when its policy has (3d 696, Ashcroft, v. 286 Johnson F.3d engendered serious reliance interests Cir.2002) (quoting Yang, INS v. 519 U.S. that must be taken into account. It 26, 32, 350, 117 S.Ct. 136 L.Ed.2d 288 would arbitrary capricious ig- (1996)); see also Administrative Procedure nore such matters. In such cases it is 706(2)(A). Act, § 5 U.S.C. We have held not that justification further is demand- may that an agency change course and ed policy the mere fact of change; reinterpret long justi statutes “as as it can but that a explanation reasoned is need- ” fy change analysis.’ its with a ‘reasoned ed for disregarding facts and circum- 163, Corp., Horn v. Thoratec 376 F.3d stances that underlay or engen- were (3d Cir.2004) (quoting Motor Vehicle Mfrs. dered prior policy. Co., Farm Mut. Ass’n State Auto. Ins. (2009) 129 S.Ct. (emphasis 29, 42, 463 U.S. 103 S.Ct. 77 L.Ed.2d omitted). original; citations (1983)). Fox, In FCC v. Television Stations, Inc., 502, 129 556 U.S. S.Ct. B (2009), 173 L.Ed.2d 738 Supreme agree I my colleagues analysis” Court described the “reasoned BIA’s “particularity” and requirement way: this requirements changes position are from sure, requirement To be that an the longstanding test the BIA articulated agency provide explanation reasoned Acosta, in Matter 19 &I. N. Dec. 211 its action ordinarily would demand that (B.I.A.1985), which for over twenty display it changing awareness that it is years 1985 until provided —from 20061— not, An position. agency may for exam- the most widely-adopted definition “par- ple, depart prior policy from a sub silen- ticular social group.” generally See Cas- simply disregard tio or rules that are tillo-Arias, 446 F.3d at 1196 (listing the still on the books. And of course the six circuit appeals, courts of including the agency good must show that there are Circuit, Third “deferred the Acosta policy. reasons for the new But it need formulation,” that, and two others “while not demonstrate to court’s satisfaction expressly ... deferring[,] viewed Acos- policy the reasons for the new Acosta, favorably”). ta the BIA stated one; better than the reasons for the old requirements for establishing “perse- it policy permis- suffices the new cution on membership account of in a par- statute, sible under the that there are ticular social as follows: it, good reasons for agency and that the better, interpret phrase ‘persecution [W]e

believes it to be which con- change membership scious account of in a adequately particu- course indi- cates. This lar agency group’ persecution means need social to mean always provide justi- not a more detailed that is directed toward an individual who Gen., originally August 1. In Att’y re C-A- was decided in Castillo-Arias v. U.S. 446 F.3d 2004, 1190, (11th published Cir.2006), designated but it was not or 1196 cert. denied sub nom., Gonzales, precedent as until June 2006. 23 I. & N. Dec. Castillo-Arias v. 549 U.S. 951, nom., (B.I.A.2006), 1115, 977, (2007). n. 951 1 sub 127 S.Ct. 166 L.Ed.2d 709 aff'd 614 case, in all of factors we look to this be group persons “[t]he a member of common, test, yond immutable char- ‘immutableness’ Acosta’s

whom share The shared characteristic prerequisites”).3 “particularity,” acteristic. not Like sex, innate one such as might be an applied again was in In “social ties, circum- color, kinship or some C-A-, 959-961, re 23 I. & N. Dec. at and past experi- might it be shared stances requirements absolute in In both became military leadership ence such as former J-G-U-, 69, 24 I. & N. Dec. re A-M-E & particular kind ownership. or land (B.I.A.2007) require (referring 74 “the qualify that will group characteristic group” ments of a remains to be under this construction that the charac requirement “the shared case-by-case on a basis. determined group generally recogniz teristic of the be However, the common charac- whatever community.” (empha able to others group, it must teristic that defines the nom., original)), sub sis Ucelo- affd group one that the members of (2d Mukasey, Gomez v. 509 F.3d 70 Cir. change, either cannot or should not be 2007). In re A-M-E- Since & J-G-U- it required change because is funda- newly-minted the BIA has treated these mental to them individual identities or precedent. as established elements See consciences. 296, In re A-T- 24 I & N. Dec. 303 “Particularity” 19 I. & N. Dec. at 233. S-E-G-, (B.I.A.2007); Matter 24 I. & visibility,” currently as the 579, (B.I.A.2008); N. Dec. Matter of them, independent defines were not ele- 591, 24 I. & N. Dec. 594-95 E-A-G- ments.2 (B.I.A.2008). “particularity” The BIA introduced as a Although “particularity” frames C-A-, requirement stand-alone In re visibility” merely as and “social “additional finding that “noncriminal informants” is a considerations” within the frame- Acosta loosely “too defined to meet work, 920, In re R-A- I. & N. Dec. at 951, requirement.” I. & N. Dec. law,” “evolving products case (B.I.A.2006). visibility,” “Social on the 24 I. Matter E-A-G- & N. Dec. at hand, other in In was first mentioned re they in practice, stringent have become R-A- as a non-determinative factor —not that can requirements be outcome-deter- mandatory requirement “partic- the—in Where, appeal. minative cases like this analysis. ular 22 I. & N. here, (B.I.A.1999) applicant seems to meet the Dec. (using 918-19 indefi- asylum but is requirements Acosta denied “frequently,” “generally,” nite terms like likely” requirement “less because he fails show to describe justifications, stating visibility,” and its it appears and “social "par- Although opinion '‘particular” phrase 2. The word in the in In re was R-A- by Attorney vacated General Janet Reno in given indepen- ticular social no considering it remains instructive when operative meaning dent or under the Acosta of, for, history explanation reasoned view, my formulation. the BIA's recent visibility” requirement. the "social It is also elevating "particularity” decisions to its own noting explicitly worth that the BIA limited In requirement along traditional with the Acos- — facts, stating re R-A- to that it "d[id] its visibility”— requirements ta and "social categorical rulings analogous any intend as to agency’s interpre- change amounts to a in the arising any claims under other "particular group,” tation as a term 22 I. & N. conceivable set of circumstances.” of art. Dec. at 914. earlier, interpretation ‘particular group’] from its social changed [of course BIA has asylum have would excluded claims stringent approach. less Acosta granted that were in” cases decided in 1996, 1990, Maj. Op. and at 1988. 607. C However, the not problem arises because fact, but rather because of the (1) that: Majority The holds because failure recognize BIA’s to and address it. in- requirement visibility’ of ‘social is “the a number of the BIA’s with consistent has, I my note that the opinion, ... is therefore not prior [it] decisions[J adequately utility of explained adding ” to deference under Chevron and entitled visibility” “particularity” and “social to the to “is an unreasonable addition the re- test, Majority, Acosta and unlike the I am establishing refugee for status quirements requirements not convinced that the two membership [based on] ... According R-A-, identical. to In re “ (2) group,” ‘[particu- and social because requiring visibility” “social allows the BIA larity’ to little more than a appears limit asylum individuals those whose visibility[,]’ definition of ‘social reworked persecutors in fact see “potential persons infirmity it suffers from the same as ... sharing the ‘social [applicant’s group’] ” 603, 604, visibility.’ Maj. Op. at ‘social warranting suppression characteristic as above, disagree. I As discussed 608. 22 I. infliction of harm.” & N. Dee. change noted, agencies interpre- are free to their 918. at As the BIA a charac- “[i]f statutes, given fact that is important society, tations of so the there is teristic in a it is likely visibility” more that distinctions will be conflict between “social and drawn society those within between who necessarily BIA decisions does prior and do not share those who share the apply. mean Chevron deference does not addition, 919. In characteristic.” Id. at does it mean that the BIA’s definition Nor would group concept virtually “the visibility” of “social is “unreasonable.” refugee definition if swallow entire Fox, I keeping In would hold characteristics, coupled common with a may reinterpret harm, meaningful all level of were require- to include whatever new group” need be shown.” “Social Id. including “particularity” ments it sees fit— the scope “par- therefore serves to limit defined visibility,” exactly and “social closely more match group” ticular they are in from In R- the line of cases re race, protected other characteristics through A- Matter and Matter S-E-G- religion, nationality, political opinion. as it long “displayfs] E-A-G — as Likewise, “particularity” Id. changing position” that it awareness and explained in In re A-M-E- & J-G-U- as “provide[s] explanation reasoned its ac- necessary potential to “delimit ... mem- (emphasis origi- tion.” 129 S.Ct. at 1811 purported bers” nal). such an order to exhibit aware- deny asylum allow the BIA claims ness, I must believe the Board make a groups, membership based defin- requirements choice between these new ing “simply characteristics of which are too prior granting “particular its decisions subjective, inchoate, variable.” 24 I. applicants status to who N. Dec. & at 76. If the Board were writ- likely slate, would have been unable to show ing on a blank I would find that it visibility.” provided explanation or “social for a has reasoned Majority “the of the law.4 present permissible interpretation is correct that BIA’s undone The BIA has said that essence of analysis “[t]he BIA’s comes

But the ... ‘particularity’ requirement conclusory fashion that it states when can proposed group whether the accurate recognized as groups all of the ly sufficiently in a manner be described in earlier cases would meet groups” group recog distinct would be visibility” and “social nized, society question, in the as a dis C-A-, In re requirements. See 23 I. & N. Matter S-E- persons.” crete class of (listing “young women of a Dec. at 960 G-, 24 I. & N. Dec. at 584. This allows opposed were to fe- particular tribe who groups the BIA to weed out that are “too mutilation,” “persons by listed genital male re inchoate, subjective, and variable.” having as the status of a A-M-E- & J-G-U- 24 I. & N. Dec. at 76. homosexual,” of the na- “former members In rejecting proposed group Galdamez’s lack particularity, though, based on a military and “former leader- police,” tional “ the BIA it as ‘potentially large described ownership” groups as “social ship or land ” App. Matter (quoting and diffuse.’ at 11 that were involved characteristics [that] S-E-G-, 585). 24 I. N. Dec. at & This recognizable by others highly visible and suggests “particularity” also embodies country question”). If this is kind of geographical some numerical or groups that have been true —that all of the limitation. If there are no such limita the Acosta standard recognized under tions, why then it is unclear it matters how recognized ap- under the new would be “large” proposed group or “diffuse” a is. the otherwise reasonable proach-then exist, If it such limits do then is unclear applications “particulari- definitions and sure, hearing how the can be without become, best, visibility” at ty” and “social matter, any argument “young on the muddled, and, worst, particular op- at incoherent. women of a tribe who were lingering questions High Refugees's I have two about Nations Commissioner for (UNHCR) provenance visibility” interpretation of "social that the BIA of the INA. In re C- A-, might Although address on remand. the BIA (citing 23 I. & N. Dec. UNHCR, sufficiently explain justify can "social vis- Guidelines on International Protec- ibility” answering questions, without these "Membership tion: of a any light BIA can shed on these issues 1A(2) group" within the Article context of might help appeals courts of in the future and the 1951 Convention its 1967 Protocol and/or remaining alleviate some of the about doubt relating Refugees, to the Status of U.N. Doc. require- of these new reasonableness 7, 2002), ("UNHCR (May HCR/GIP/02/02 ments. ”)); I-G-U-, Guidelines re & In A-M-E- I. (same). & N. Dec. at 74 The UNHCR Guide- convincing justification The most lines, however, visibility” treat "social an visibility” requirement “social is that "if the way alternative to Acosta as a to establish a alleged persecutor is not even aware of "particular group”; require- it is not a existence, [asylum applicant's] group's it be- C-A-, in addition to Acosta. See In re ment persecu- comes harder to understand how ("The 23 I. & N. Dec. at 956 UNHCR Guide- may tor have been motivated the victim’s 'particular group' lines define as 'a 'membership' group in the to inflict the harm R-A-, persons who share common char- on the victim.” In re I. & N. Dec. at being perse- than acteristic other their risk of helps why explain 919. This “social visibili- cuted, perceived group by or who are as a ty” determining would abe factor in whether " added) society.' (emphasis (quoting UNHCR persecution membership is "on account of” then, ¶ 11)). unclear, however, Why, group. why Guidelines at has the BIA It remains disjunctive decided to turn the Guidelines’ should be used to define the conjunctive, essentially creating place. in the first into test, justification adopt “Acosta-plus” Another rather than oft-used for "social vis- ibility” is that it is derived from the United “Acosta-or” test endorsed the UNHCR? mutilation,” “per- unclear genital “young particular to female how women of a posed by having opposed genital as tribe who were to female sons listed homosexual,” mutilation,” “persons by govern- listed of a “former mem- status police,” having “former ment as the status of a of the national and homosexu- bers al,” po- or land “former members of the national military leaders[] owners[]” lice,” military or “former any widespread ]” numerous or than would leaders[ less youth actively qualify. who have “Honduran been by gangs but have refused to recruited Announcing interpretation a new while

join they oppose gangs.” because at the same reaffirming seemingly time precedents suggests irreconcilable visibility” “Social has been defined as that the society recognize, being to which members does not or is not “the extent of about, forthright the nature of perceive change those with the characteristic interpretation members of a its new It question group,” effectuates. also E-A-G-, 594, unfairly asylum applicants 24 I. & at forces to Matter N. Dec. shoot moving at a target.5 up ... It is to the BIA requires group generally and “the bring stability some to its interpretation recognizable others the communi- S-E-G-, committing law either to the ty,” 24 I. & Acosta Matter N. Dec. “particularity” line of cases or to the It unclear this 586. is whether means visibility” requirements, both of characteristic group’s shared must be which are permissible and reasonable. (ie., eye pass to the naked visible test”) “eyeball just applicant’s or agree I Majority with the that the BIA society must understand individuals with to, requirements “can[ ] add new or even (visible the shared characteristic or invisi- change, ‘particular its definition of ” ble) group. to be members of a In re group,’ Maj. Op. at but I also note C-A-, suggested the BIA that “social visi- change that the BIA’s can be adoption bility” eyeball rejected anis test when it “particularity” visibility.” and “social proposed group because shared its seemingly Were it not for the irreconcil- “that generally characteristic is one out conflict prior able with decisions that the public view.” In re C-A- 23 I. & disavowed, yet BIA has not I would see no N. Dec. at 960. The BIA seemed to reaf- problem “reasonableness” “partic- E-A-G-, approach firm this in Matter ularity” visibility” require- and “social applicant’s when it found that an Thus, may, ments. upon further visibility” lacked “social because he review, jettison decide to Acosta and its allege possesses any that he “d[id] progeny open up them to reconsidera- characteristics that would cause others Conversely, may tion. the BIA decide society recognize him” as a mem- precedent intact, [his] that its should remain is, case, ber. But if “social or some- which “social visi- for, test, eyeball how accounts bility” then it is must be refined or eliminated.6 It Although case-by-case 5. the BIAnoted in that "[t]he Acosta ad hoc revisions of entire legal acknowledgement framework—without kind of characteristic that explanation it would be free to arbi- qualify will under Acosta construction —then th[e ] trarily pick statutorily- whatever choose case-by-case remains to be determined on a permissible "particular construction of basis,” 19 I. & N. Dec. at I assume agreeable it finds at the moment. referring case-by-case the BIA evalua- applicants' proposed groups tion of individual acknowledge may I that there also be some they legal and whether meet the established way interpre- for the BIA to reconcile its new permitted engage precedent, standard. If the BIA is tation and its and I do not mean to (3d Cir.2007) (Valdiviezo- 285, 291 make this choice between F.3d for us to

is not I). did not authorize the precedent, nor is it Galdamez We requirements new usurp BIA to the IJ’s role as factfinder. readings our own place impose our attempt reconcile the in an to the statute 1003.1(d)(3)(iv), § According to 8 C.F.R. Rather, the BIA should address two. “[e]xcept taking for notice administrative remand, and we should these issues on commonly facts as current known such conclusion it reaches— defer to whatever or the contents of official docu- events reject precedent if it to and move even is ments, the will not in fact- engage [BIA] “particularity” and “social visi- ahead with finding deciding appeals.” in the course of provided current it bility” in their forms— (“If Negusie, See also 129 S.Ct. at 1168 the way expert explains itself in a exhibits adopt BIA decides to a standard that [dif- reasonable, logical, per- and consideration standard], it existing may fers from the interpretations of the See missible INA. prudent necessary Immigra- for the Scientific, N.L.R.B. v. Matheson Curtin Judge tion to conduct additional factfind- Inc., 775, 800, 1542, 494 U.S. 110 S.Ct. 108 ing (emphasis based the new standard.” (1990) (Blackmun, J., dissent- L.Ed.2d 801 added)); Holder, 62, Padmore v. 609 F.3d (“Confronted ing) with court’s conclusion (2d Cir.2010) (“[W]hen BIA engages 67 the policy pronouncements are that two of its factfinding in contravention of 8 C.F.R. inconsistent, agency may choose for 1003.1(d)(3)(iv), § it an commits error of follow, path may which or it at- itself law, jurisdiction which we have to cor- why tempt explain no contradiction ac- rect.”); U.S., Att’y Hashmi v. Gen. of Gatimi, exists.”); tually 578 F.3d 616 (3d Cir.2008) (“[T]o 531 F.3d (“When (7th Cir.2009) an administrative extent that the BIA’s decision rests inconsistent, agency’s decisions are a court ..., finding alternative on its own of fact it one of the pick cannot inconsistent lines (footnote omitted)). erred.” one, only to that unless one defer is As of June when the IJ first heard scope agency’s within the discretion case, only Galdamez’s BIA decision interpret the statutes it enforces or to discussing visibility” was In re R- policy Congress’s delegate. make Such A-, opinion and that had been vacated picking choosing would condone arbi- C-A-, early 2001. In re with its enhanced usurp agency’s responsi- trariness and definition of “particularity” application (citations omitted)). bilities.” of the “social requirement, was published not as precedential until June

II 15, 2006, exactly year one after the IJ separately rejected Thus, I also write to take petition. issue with Galdamez’s Gal- factfinding. present BIA’s We first remanded damez had no reason to evidence agency to, instance, this case in 2007 “so the argue relating facts [could] that it possesses any address the issues did not reach ... whether “he characteristics [including] by whether the group identified would cause others in Honduran soci- ‘particular group’ ety recognize Galdamez is a him as one who has re- meaning within the of the Act.” gang Valdivie- fused recruitment” or whether his U.S., Att’y proposed group “large zo-Galdamez Gen. is too and diffuse” suggest provided explanation that such reconciliation automati- a reasoned of how its cally explanation or, renders the BIA’s defective. appears, new rules it do fit—with fit— My point simply analysis that more is need- the old ones. ed before I can conclude that the BIA has factfinding. “particular.” Nor did IJ for additional Galdamez’s to be considered appeal to make factual find- before the should not be limit- any IJ have reason by evidentiary compiled ed an record un- ings points. on these law, der an outdated the facts and decision, from our On remand arguments applicants raised other lack of factual devel- papered over the cases other than his own. He should have findings factual by relying on opment opportunity present evidence with in Matter S-E-G- and Matter made eye towards the law under which his E-A-G-, post-dated both of which also being case is decided. hearing before IJ. The Galdamez’s only “evidence” to which the cited for “particularity” and “social its Ill cases, findings quotations were from those sum, I agree Majority with the that a eonclusory with statements that coupled remand is in order. The BIA now has a apply facts to Galdamez’s case. same remaining choice of either faithful to its Matter instance, quoted the BIA For ofE- precedents adopting or requirements new

A-G- such as: length propositions for likely produce that would different out- showing membership is no “[T]here applicants claiming comes for future to be larger body persons gangs of resistant to members of the same Honduras, in- anyone of concern to groups” recognized as were in earlier themselves.” Id. gangs (quot- cluding Board decisions. If it chooses the latter E-A-G-, 24 I. & N. Dec. at ing Matter of course, I would also instruct the BIA to 594-95). judgment I on the truth pass no remand the matter to the IJ so Galdamez application in Mat- of this statement or its can a full opportunity have and fair to be E-A-G-, ter accept I but do not its of legal heard under the new standards. case, application blanket to Galdamez’s evidentiary where the record was not de- any

veloped notion of visibility” requirements.

or “social It re- might

mains to be seen whether Galdamez affidavits, produce testimony,

be able to presented

some other evidence not

applicants in Matter S-E-G- Matter

ofE-A-G-. 1003.1(d)(3)(iv), § 8 C.F.R. the IJ

Under Here, implicitly the BIA

is the factfinder. identically

determined that Galdamez is Matter asylum applicants situated Anthony T. BROWN E-A-G-, S-E-G- and Matter “particu- that he would be unable to show larity” visibility” because and “social those * earlier were unable to do Michael WENEROWICZ, Superinten applicants two * true, dent, Graterford; Raymond may so. That but that decision is SCI If, instance. Lawler, Superintendent, Hunting the IJ the first SCI remand, don; Attorney County change does course and District asylum it Philadelphia; Attorney adopts applicants, new rules for General Pennsylvania, Appellants case to the must also remand Galdamez’s State

Case Details

Case Name: Valdiviezo-Galdamez v. Attorney General of the United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 8, 2011

Citation: 663 F.3d 582

Docket Number: 08-4564

Court Abbreviation: 3rd Cir.