Ixcuna Sam v. Holder, Jr. , 752 F.3d 97 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1259
RAFAEL IXCUNA SAM,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
John P. Garan on brief for petitioner.
Tracie N. Jones, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Assistant Attorney General, Civil
Division, and Song Park, Senior Litigation Counsel, on brief for
respondent.
May 14, 2014
LYNCH, Chief Judge. Petitioner Rafael Ixcuna Sam, a
native of Guatemala, seeks review of an order of the Board of
Immigration Appeals (BIA) denying his application for withholding
of removal. Sam argues that the BIA erred in concluding that he
failed to establish "membership in a particular social group" under
8 U.S.C. § 1231(b)(3)(A). After careful consideration, we deny the
petition.
I.
Sam is currently 32 years old. At age 19, Sam left
Guatemala due to the poor economic situation of his family and of
his country more generally. He entered the United States without
inspection sometime in 1999 or 2000.
In 2006, the Department of Homeland Security commenced
removal proceedings against Sam, charging him with removability
under 8 U.S.C. § 1182(a)(6)(A)(i). In 2011, Sam, represented by
counsel, conceded removability and filed an application for
withholding of removal. Sam argued that withholding was proper
because, as an individual who had stayed in the United States for
an extended period, he would be perceived as wealthy upon his
return and thus would be targeted for extortion and violence by
Guatemalan gangs. This, Sam argued, made him a member of a
"particular social group" and thus eligible for withholding of
removal under 8 U.S.C. § 1231(b)(3)(A).
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At a hearing on March 2, 2011, an Immigration Judge (IJ)
denied Sam's application for withholding of removal. The IJ
reasoned that Sam had failed to make the necessary showing under 8
U.S.C. § 1231(b)(3)(A) that he was a member of a particular social
group. The IJ observed that neither Sam nor any of his family
members remaining in Guatemala had experienced any harm in the
past. He further explained that, even crediting Sam's subjective
fear of being targeted as an "Americanized" returnee, Sam had not
sufficiently demonstrated that Americanization makes him a member
of a particular social group. Finally, the IJ concluded that,
without evidence of belonging to a particular social group, Sam
also could not show a "clear probability" that he would likely be
persecuted upon returning to Guatemala.1
On January 23, 2013, the BIA affirmed the IJ's decision,
largely adopting the IJ's conclusions. The BIA reasoned that Sam
had not "demonstrate[d] that any harm feared would be on account of
a protected ground," as distinguished from the generally universal
threat of violence that all Guatemalans face to some extent, citing
our decision in Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st
Cir. 2005). The BIA also cited our decision in Sicaju-Diaz v.
Holder, 663 F.3d 1, 4 (1st Cir. 2011), in which we held that
1
The IJ also rejected Sam's argument that he would be
targeted for being "resistant to gang membership," finding that Sam
had failed to establish a likelihood of harm on account of
membership in a gang-resistant social group. Sam does not contest
this conclusion on petition for review.
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wealthy individuals returning to Guatemala from the United States
were not a particular social group for purposes of withholding of
removal. Sam timely petitioned for review by this court.
II.
Where the BIA has deferred to or adopted the IJ's
reasoning, we review the IJ's decision, as supplemented by the BIA.
See Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004). We will
uphold the BIA's factual determinations if they are "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Id. (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)) (internal quotation marks omitted). We
review the BIA's legal determinations de novo, affording
"appropriate deference" to the agency's conclusions. Sok v.
Mukasey, 526 F.3d 48, 53 (1st Cir. 2008).
To qualify for withholding of removal, an applicant must
establish that "race, religion, nationality, membership in a
particular social group, or political opinion" was or will be a
central reason for persecuting the applicant following his or her
removal. 8 U.S.C. § 1231(b)(3)(A); see Singh v. Mukasey, 543 F.3d
1, 5 (1st Cir. 2008). The applicant must show a "clear
probability" of persecution in the form of threats to his or her
life or freedom on account of one of those enumerated grounds. INS
v. Cardoza-Fonseca, 480 U.S. 421, 425 (1987).
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Sam's sole argument before this court is that he
qualifies for withholding of removal as a member of a particular
social group, which he defines as individuals perceived as wealthy
on account of their return to Guatemala from lengthy stays in the
United States. As we have explained elsewhere, the factors
relevant to determining whether a claimed group is a "particular
social group" for purposes of withholding of removal include "the
immutability of the characteristic, the visibility and general
recognition of the group, and the extent to which the definition is
concrete enough to include or exclude claimants." Sicaju-Diaz, 663
F.3d at 4.
As the BIA noted, our decision in Sicaju-Diaz already
addressed the question of whether wealthy Guatemalans returning
from the United States are a particular social group. We concluded
that, although a social class of persons defined based on wealth
but with "immutable heritage" -- for instance, a hereditary peasant
class such as "kulaks" after the Russian Revolution -- may qualify
as a particular social group, the group of persons merely
"happening to be wealthy" does not. Id. The BIA relied on that
precedent to support its decision.
Sam attempts to distinguish Sicaju-Diaz on the grounds
that Sicaju-Diaz focused on the perception of wealth and not on the
fact that the asserted social group was returning from the United
States. He argues that returnees from the United States are a
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particular social group because that characteristic is immutable,
and the class of people returning from the United States is
discrete and socially visible.
This argument, however, was specifically addressed by
Sicaju-Diaz itself. In Sicaju-Diaz, we did not limit our reasoning
to the perception of wealth, but instead explicitly considered the
fact of returning from the United States. As we explained, "being
part of a landowning [heritable and immutable] class is quite
different than happening to be wealthy or perceived to be wealthy
because of owning a large house, belonging to a well known family
or 'returning to Guatemala after a lengthy residence in the United
States.'" Id. (emphasis added). For that reason, we rejected the
petitioner's argument that "wealthy individuals returning to
Guatemala from a lengthy stay in the United States comprise a
social group entitled to asylum." Id. at 3 (emphasis added).
Given this reasoning in Sicaju-Diaz, the BIA's judgment
was both reasonable and consistent with our past precedent, as well
as with its own. See id. at 4 (citing In re A-M-E & J-G-U-, 24 I.
& N. Dec. 69, 75-76 (B.I.A. 2007)). We will not disturb such a
decision.
III.
The petition for review is denied.
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