Jose Aleman v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2510
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JOSE AMAYA ALEMAN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
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On Petition for Review from an
Administrative Order of Removal
of the Department of Homeland Security
(A096-209-126)
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Submitted Under Third Circuit L.A.R. 34.1(a)
on September 14, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Filed: September 15, 2020)
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OPINION *
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
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BIBAS, Circuit Judge.
Jose Amaya Aleman, a Honduran, was removed from the United States but then re-
turned. The Department of Homeland Security caught him and reinstated his order of re-
moval. Amaya Aleman wants to apply for withholding of removal and protection under the
Convention Against Torture. To get withholding, he must have “a reasonable fear” that if
he returns to Honduras, he would face persecution based on a protected characteristic.
8 C.F.R. § 208.31.
So far, Amaya Aleman has failed to convince the Government of that. In an interview
with an asylum officer, he explained that if he returned to Honduras, a gang would retaliate
against him because he had reported them to the police. The officer seemed to agree that
he feared persecution. Still, the officer denied his claim because he found that any perse-
cution would not be “on account of a protected ground.” App. 39. The officer did not think
that Amaya Aleman’s proposed particular social group of “Hondurans who have reported
gang activity to the police” was cognizable. Id. An immigration judge affirmed the asylum
officer’s decision on the basis that Amaya Aleman “failed to establish [a] nexus” between
the persecution he feared and a protected ground. App. 7. He now petitions for review of
the immigration judge’s decision. We review questions of law de novo and factual findings
for substantial evidence. Dutton-Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017);
S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018).
The immigration judge’s decision is ambiguous. Her reasoning could mean that Amaya
Aleman would be persecuted for reasons other than his reporting gang activity to the police.
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Or it might mean that persecution would happen for that reason, but that those who report
gang activity to the police are not members of a protected group.
The difference between those two rationales matters. After the immigration judge’s de-
cision, we recognized as a particular social group “persons who publicly provide assistance
to law enforcement against major Salvadoran gangs.” Guzman Orellana v. Att’y Gen., 956
F.3d 171, 179–80 (3d Cir. 2020). Persecution based on membership in that group can qual-
ify an alien for asylum or withholding of removal. See id. at 178–80. If the immigration
judge thought that those who report gang activity to the police are not members of a pro-
tected group, then Guzman Orellana may cast doubt on her decision.
We will thus remand this case to the immigration judge to elaborate on her reasoning.
She is free to clarify that she finds Amaya Aleman’s fear of persecution is not reasonably
based on his reporting gang activity to the Honduran police. But if she finds that reporting
gang activity to the police is “at least one central reason” for his fear of persecution, then
she should reconsider her decision in light of Guzman Orellana. 8 U.S.C.
§ 1158(b)(1)(B)(i).
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