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Juan Antonio GARCIA-CALLEJAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent

United States Court of Appeals for the First Circuit2012-01-24No. No. 11-1084
666 F.3d 828

Summary

Holding. The petition for review is denied. The Board's decision affirming the denial of withholding of removal was properly based on Garcia-Callejas's failure to establish membership in a particular social group as required by statute, and his proposed groups—individuals targeted for gang recruitment resistance or perceived as wealthy—do not constitute legally cognizable social groups under circuit and Board precedent.

Juan Antonio Garcia-Callejas, a Salvadoran national, sought withholding of removal based on his fear of gang violence in El Salvador. He claimed gang members had attempted to recruit him before he fled to the United States, and that upon return they would target him for his perceived wealth gained from living in America. The immigration judge found his fear genuine but determined the claimed harm did not satisfy the statutory requirement that persecution be directed at a particular social group. The Board of Immigration Appeals affirmed without addressing whether the feared harm was sufficiently likely.

On appeal, Garcia-Callejas argued that persons like him—individuals resisting gang recruitment or perceived as wealthy returnees—constitute a protected social group under immigration law. The court rejected this argument based on established precedent within the circuit and Board decisions. The court found that neither "individuals resisting gang recruitment" nor "persons perceived as wealthy" qualify as cognizable social groups under the applicable statutory framework, regardless of the severity of the threatened harm or the government's role in it.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Definition of 'particular social group' under withholding of removal statute
  • Whether gang recruitment resistance constitutes a cognizable social group
  • Whether perceived wealth constitutes a cognizable social group
  • Deference owed to Board of Immigration Appeals on statutory interpretation

Procedural posture

Garcia-Callejas petitioned for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of his application for withholding of removal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

Juan Antonio Gareia-Callejas, a native and citizen of El Salvador, challenges a 2009 decision by the Board of Immigration Appeals (“the Board”) denying his application for withholding of removal. Gareia-Callejas was born in El Salvador and entered the United States illegally on or about May 9, 2006. The Department of Homeland Security brought removal proceedings. 8 U.S.C. § 1182(a)(6)(A)(i) (2006). Gareia-Callejas conceded removability and filed an application for withholding of removal and Convention Against Torture (“CAT”) protection. See 8 C.F.R. §§ 1208.16-18 (2011).

At the hearing before an immigration judge (“IJ”) Gareia-Callejas’ central claim was that he would be harmed by criminal gangs, prevalent in El Salvador, whose attempts to recruit him he had resisted before he left for the United States. He also asserted that the gangs would perceive him as wealthy because of his time in the United States and therefore subject him to further threats and violence. The IJ held that his fear was genuine, but that there was neither a sufficient likelihood of harm nor was the feared harm directed at a statutorily protected social group. The Board affirmed on the latter ground without reaching the former.

As Gareia-Callejas frames his claim, he must establish that his “life or freedom would be threatened ... because of [his] ... membership in a particular social group.” 8 U.S.C. § 1231(b)(3)(A). Here, the category to which Garcia-Callejas seeks to assign himself, whether as target of gang recruitment or a returnee perceived as wealthy, does not constitute a “social group” under the Board’s precedents, which have several times been affirmed by this court. This is so regardless of the degree of threat (or lack of it) and the government’s responsibility (or lack of it) for the alleged threat.

The Board and the courts have grappled regularly with the meaning and application of the “social group” concept as used in the statute; the “social group” concept, like companion categories in the statute not here in issue (“race, religion, nationality or political opinion,” 8 U.S.C. § 1231(b)(3)(A)), aims to identify those whom the statute is designed centrally to protect. There are criteria, but they are inherently rather general. E.g. Scatambuli v. Holder, 558 F.3d 53, 58-60 (1st Cir.2009).

Accordingly, guidance is most easily obtained from their application in particular cases where such precedents exist. And here our own decisions are directly in point. We have previously rejected the proposed social group of “young women recruited by gang members who resist such recruitment” in El Salvador. Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir.2010); see also Larios v. Holder, 608 F.3d 105, 108-09 (1st Cir.2010) (“young Guatemalan men recruited by gang members who resist such recruitment”); Díaz Ruano v. Holder, 420 Fed.Appx. 19, 21-22 (1st Cir.2011) (unpublished opinion) (“young male[s] sought out for information and recruitment by the criminal gang of Guatemala”).

We have also rejected social groups based solely on perceived wealth, even if signaling an increased vulnerability to crime. Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir.2011); see also Perez-Valenzuela v. Holder, 363 Fed.Appx. 759, 760 (1st Cir.2010) (unpublished opinion) (“Guatemalan m[e]n ... perceived by gang members to have disposable money available”); López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir.2009) (“hostile treatment based on economic considerations”).

These decisions, in turn, are consistent with established Board precedent, In re E-A-G-, 24 I. & N. Dec. 591 (BIA 2008); In re S-E-G-, 24 I. & N. Dec. 579 (BIA 2008); In re A-M-E & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007), and the Board is entitled to deference on its reasonable interpretations of ambiguous statutory language, such as that in issue here. Scatambuli, 558 F.3d at 58; see also Sicaju-Diaz, 663 F.3d at 4 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

On this appeal, Garda-Callejas has (impermissibly) adjusted, although modestly, the definition of his proposed social group, describing it as including “a person disfigured in the United States who would be subject to persecution because of the community’s perception that he has wealth due to his personal injury settlement and persecution young male with information they want and for recruitment [sic].” The reference to a perceived settlement adds little, and the references to both the settlement and “information” are neither explained nor obviously relevant.

There is no point repeating a full analysis of the group in each successive case where the underlying issue is materially identical to several already decided in this circuit. If there is supervening authority from the Supreme Court or other reason for this court en banc to alter its prior precedent, these arguments ought to be presented; but mere repetition of positions already rejected serves no purpose and warrants per curiam treatment.

The petition for review is denied.

. In this court, Gareia-Callejas has not developed his CAT relief claim, which was rejected by the immigration judge and the Board. Accordingly, we treat the issue as waived. See Lopez Perez v. Holder, 587 F.3d 456, 463 (1st Cir.2009).

. In Scatambuli, we identified four factors used by the Board to determine whether a claimed group constitutes a legally cognizable social group: (1) immutability; (2) social visibility; (3) sufficient particularity; and (4) that the group not be defined exclusively by the fact that its members have been targeted for persecution.