Immigration – Asylum – Gang membership

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Where a Guatemalan native appeals from the denial of his application for asylum and withholding of removal, he is unable to demonstrate past persecution or an objectively reasonable fear of future persecution based on his membership in a social group consisting of “members that oppose gang membership.”

Accordingly, his petition for review is denied.

“ … [Petitioner Elmer] Paiz-Morales now argues that … ‘new case law’ requires us to remand his case for reconsideration in light of the ‘clarification of the BIA’s position on the social visibility requirement.’

“However, the plain language of Matter of M-E-V-G [26 I. & N. Dec. 227, 231 (BIA 2014)] indicates that the ‘transition to the term “social distinction” is intended to clarify the requirements announced in [two earlier cases]; it does not mark a departure from established principles.’ … Specifically, the BIA clarified that ‘[t]o be socially distinct, a group need not be seen by society; rather, it must be perceived as a group by society.’ … The BIA further explained that it ‘would reach the same result in [those earlier cases] if we were to apply the term “social distinction” rather than “social visibility.”‘ … The effect is no different for Paiz-Morales. The change in terminology did not depart from the BIA’s prior interpretation, but merely clarified that literal ocular visibility ‘is not, and never has been, a prerequisite for a viable particular social group.’ … There is nothing to suggest that either the IJ or the BIA required Paiz-Morales to show literal ocular visibility. … We decline the petitioner’s invitation to remand on that basis.

“Paiz-Morales next argues that the BIA erred in finding that he failed to establish a protected ground for asylum because his proposed social group is not a legally cognizable particular social group. …

“The only evidence Paiz-Morales offers in the way of particularity is the statement that ‘gang members can easily point out those who are against their philosophies — gang members wear certain clothing and tattoos.’ That may be true, but petitioner has only described a group consisting of gang members. By his definition, anyone not wearing ‘certain clothing and tattoos’ would be a member of his group. To meet the particularity requirement, a group must be ‘discrete and have definable boundaries — it must not be amorphous, overbroad, diffuse or subjective.’ … A group consisting of all Guatemalan citizens who do not sport gang colors and tattoos is by definition too amorphous and overbroad to be particular.

“Paiz-Morales attempts to distinguish his case from that of Matter of W-G-R, 26 I. & N. Dec. 208, 221-222 (BIA 2014), in which the BIA found that a proposed group consisting of ‘former gang members who have renounced their gang membership’ did not meet the particularity requirement because the group could include people of any sex, age, or belief about gang activities. Similarly, the group that Paiz-Morales describes would include both infants and grandmothers. However, according to Paiz-Morales, his group is united by ‘a common belief of opposition to gang membership.’ Yet he offers no clue as to how — aside from the lack of gang indicia — one might draw a distinction between, say, octogenarians who oppose gang membership and teenage girls who hold no opinion on gangs whatsoever. Although Paiz-Morales argues that he is a member of a particular group, ‘members opposed to gang membership,’ he did not offer any evidence of the existence of this group, aside from his own assertion.

“In Mendez-Barrera [v. Holder, 602 F.3d 21 (1st Cir. 2010)], we held that a proposed group, ‘young women recruited by gang members who resist such recruitment,’ was not ‘sufficiently particular to be legally cognizable.’ … The description of Paiz-Morales’s proposed group is even less specific than that in Mendez-Barrera. Our previous decisions have also rejected similar proposed social groups. …

“We do not mean to suggest ‘a blanket rejection of all factual scenarios involving gangs.’ … But on the record of this case, where Paiz-Morales failed to offer any evidence of the existence of a legally cognizable particular social group, it is clear that the BIA’s determination was supported by substantial evidence.

“Finally, Paiz-Morales argues that the BIA erred in dismissing his appeal of the denial of his application for withholding of removal. We can dispense with this argument quickly. … Paiz-Morales did not establish that he faced persecution on account of a legally cognizable social group. …

“For the reasons discussed, we deny the petition for judicial review.”

Paiz-Morales v. Lynch (Lawyers Weekly No. 01-205-15) (12 pages) (Thompson, J.) (1st Circuit) Lydia M. Sanchez on brief for the petitioner; Sui P. Wong, with whom Joyce R. Branda and Anthony W. Norwood were on brief, for the respondent (Docket No. 14-1182) (July 29, 2015).

Click here for the full-text opinion.