Nelson Ramos v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1932
N ELSON B ENITEZ R AMOS,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
No. A098 169 980.
A RGUED O CTOBER 30, 2009—D ECIDED D ECEMBER 15, 2009
Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. The Board of Immigration
Appeals denied Nelson Alejandro Benitez Ramos’s ap-
plication for withholding of removal, a remedy that is
similar to asylum (the deadline for applying for which
Ramos had missed) but that requires the applicant to
establish a higher probability of persecution should he be
returned to his native country. The ground of the denial
2 No. 09-1932
was that Ramos is not a member of “a particular social
group.” Persecution on the basis of membership in such a
group is, along with persecution on the basis of “race,
religion, nationality, . . . or political opinion,” a ground
for granting asylum or withholding of removal. 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1), 1231(b)(3). There is no
statutory definition of “particular social group,” but the
Board has sensibly defined it as a group whose members
share “common characteristics that members of the
group either cannot change, or should not be required to
change because such characteristics are fundamental to
their individual identities.” In re Kasinga, 21 I. & N.
Dec. 357, 366 (BIA 1996); see also Lwin v. INS, 144 F.3d
505, 511-12 (7th Cir. 1998); In re Acosta, 19 I. & N. Dec. 211,
233-34 (BIA 1985), overruled on other grounds by In re
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). As we explained
in Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009), “if the
‘members’ [of an alleged particular social group] have
no common characteristics they can’t constitute a group,
and if they can change those characteristics—that is, cease
to belong to the group—without significant hardship,
they should be required to do so rather than be allowed
to resettle in America if they do not meet the ordinary
criteria for immigration to this country.”
Ramos testified at his hearing before an immigration
judge that he had been born and grew up in El Salvador
and that in 1994, when he was 14, he had joined the Mara
Salvatrucha, a violent street gang. See, e.g., Luz E. Nagle,
“Criminal Gangs in Latin America: The Next Great Threat
to Regional Security and Stability?,” 14 Tex. Hisp. J.L. &
Policy 7, 9-10 (2008); USAID Bureau for Latin American and
No. 09-1932 3
Caribbean Affairs, “Central America and Mexico Gang
Assessment,” pp. 9, 34 (Apr. 2006), www.usaid.gov/
locations/latin_america_caribbean/dem ocracy/gangs_
assessment.pdf (visited Nov. 12, 2009); Juan J. Fogelbach,
Comment, “Mara Salvatrucha (MS-13) and Ley Anti Mara:
El Salvador’s Struggle to Reclaim Social Order,” 7 San
Diego Int’l L.J. 223 (2005). He remained a member of the
gang until 2003, when he came to the United States. Shortly
afterward, having become a born-again Christian, he
decided that if he returned to El Salvador he could not
rejoin the gang without violating his Christian scruples
and that the gang would kill him for his refusal to
rejoin and the police would be helpless to protect
him—“unable or unwilling to protect him against the
private parties,” as we put it in Garcia v. Gonzales, 500 F.3d
615, 618 (7th Cir. 2007). He has MS tattoos on his face as
well as his body, but even if he had them removed the
gang would recognize him. MS is active in the United
States as well. See, e.g., Nagle, supra, at 9-10; Geoff Thale &
Elsa Falkenburger, “Youth Gangs in Central America:
Issues in Human Rights, Effective Policing, and Preven-
tion” 2-4 (Washington Office on Latin America Special
Report, Nov. 2006), www.wola.org/media/gangs_report_
final_nov_06.pdf (visited Nov. 12, 2009); Matthew
Brzezinski, “Hillbangers,” New York Times, Aug. 15, 2004,
§ 6, p. 38. But there is no suggestion that the U.S. branch
poses any threat to Ramos.
In a characteristically terse, one-member opinion, the
Board ruled against Ramos on the ground that “tattooed,
former Salvadoran gang members” do not constitute a
particular social group; nor can “membership in a
4 No. 09-1932
criminal gang . . . constitute membership in a particular
social group.” The second point is correct—at least in
general. Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir.
2007); In re E-A-G-, 24 I. & N. Dec. 591, 595-96 (BIA 2008).
As we said in Bastanipour v. INS, 980 F.2d 1129, 1132 (7th
Cir. 1992), “whatever its precise scope, the term ‘particular
social groups’ surely was not intended for the protection
of members of the criminal class in this country, merely
upon a showing that a foreign country deals with them
even more harshly than we do. A contrary conclusion
would collapse the fundamental distinction between
persecution on the one hand and the prosecution of
nonpolitical crimes on the other.” Being a member of a
gang is not a characteristic that a person “cannot change,
or should not be required to change,” provided that he
can resign without facing persecution for doing so. Arteaga
v. Mukasey, supra, 511 F.3d at 945-46.
But if he can’t resign, his situation is the same as that of
a former gang member who faces persecution for
having quit—the situation Ramos claims to be in. A gang
is a group, and being a former member of a group is a
characteristic impossible to change, except perhaps by
rejoining the group. On this ground we held in Gatimi v.
Holder, supra, that a former member of a violent criminal
Kenyan faction called the Mungiki was a member of a
“particular social group,” namely former members of
Mungiki. We relied on Sepulveda v. Gonzales, 464 F.3d 770,
771-72 (7th Cir. 2006), characteristically not cited in
this case by either the Board or its lawyer, which
holds that former subordinates of the attorney general of
Colombia who had information about the insurgents
No. 09-1932 5
plaguing that nation constituted a particular social
group. One could resign from the attorney general’s office
but not from a group defined as former employees of the
office. See also Koudriachova v. Gonzales, 490 F.3d 255, 262-
63 (2d Cir. 2007) (former KGB agents); Cruz-Navarro
v. INS, 232 F.3d 1024, 1028-29 (9th Cir. 2000) (former
members of the police or military); Velarde v. INS, 140 F.3d
1305, 1311-13 (9th Cir. 1998) (former bodyguards of the
daughters of the president); Chanco v. INS, 82 F.3d 298, 302-
03 (9th Cir. 1996) (former military officers); In re Fuentes, 19
I. & N. Dec. 658, 662 (BIA 1988) (former members of the
national police).
Arteaga v. Mukasey, supra, 511 F.3 at 946, using language
borrowed from the Board’s decision in In re Acosta, supra,
19 I. & N. Dec. at 233, states that “participation in . . . [gang
activity] is not fundamental to gang members’ individual
identities or consciences, and they are therefore
ineligible for protection as members of a social group.” But
this was said in reference not to Arteaga’s status as a
former gang member but to his possible status as a
current member, for he had testified that he was still a
member of the gang, though an inactive one. Ramos is a
former member.
There are hints in the Arteaga opinion that being perse-
cuted for being a former member of a gang should not be a
basis for asylum or withholding of removal either. 511
F.3d at 945-46. That is not Congress’s view. It has barred
from seeking asylum or withholding of removal any
person who faces persecution for having himself been a
persecutor (a Nazi war criminal, for example) or who has
6 No. 09-1932
committed a “serious nonpolitical crime.” 8 U.S.C.
§§ 1158(b)(2)(A), 1231(b)(3)(B); see, e.g., Negusie v. Holder,
129 S. Ct. 1159, 1162 (2009); INS v. Aguirre-Aguirre, 526
U.S. 415, 419-25 (1999); Doe v. Gonzales, 484 F.3d 445 (7th
Cir. 2007); Guo Qi Wang v. Holder, 583 F.3d 86, 90-91 (2d Cir.
2009) (per curiam); Efe v. Ashcroft, 293 F.3d 899, 904-06 (5th
Cir. 2002). But it has said nothing about barring former
gang members, perhaps because of ambiguity about what
constitutes a “gang”; or because of the variety of activities,
not all criminal, that some “gangs” engage in; or because of
the different levels of participation, some innocuous, of
members of some gangs.
The Board has never given a reasoned explanation for
why the statutory bars to which we have just referred
should be extended by administrative interpretation to
former members of gangs. (It’s not even clear that the
Board thinks that all former members of every gang
should be barred from obtaining asylum or withholding
of removal.) Such an extension might be thought
perverse in a case like this. Ramos would not have quit
the gang had he thought he’d be sent back to El
Salvador, and if he is sent back his only hope of survival
(assuming that his fear of persecution is well founded,
an issue not before us) will be to abandon his Christian
scruples and rejoin the gang.
The government’s brief, in violation of the Chenery
doctrine, argues that the Board’s decision should be
affirmed on a ground not mentioned by the Board: that to
be a “particular social group” a group must have “social
visibility.” By this the government means—and its
No. 09-1932 7
lawyer was emphatic at argument that it is the Board’s
meaning and there is support for his claim in cases like In
re S-E-G, 24 I. & N. Dec. 579, 586 (BIA 2008); In re E-A-G-,
supra, 24 I. & N. Dec. at 594; In re A-T-, 24 I. & N. Dec. 296,
304 n. 4 (BIA 2007), vacated and remanded on other
grounds by 24 I. & N. Dec. 617 (Attorney General 2008),
and especially In re C-A, 23 I. & N. Dec. 951, 959-61 (BIA
2006)—that you can be a member of a particular social
group only if a complete stranger could identify you as
a member if he encountered you in the street, because
of your appearance, gait, speech pattern, behavior or
other discernible characteristic.
This position has some judicial support, see, e.g.,
Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009);
Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009), but
we have rejected it in Gatimi and other cases, cited in
Gatimi, as a misunderstanding of the use of “external”
criteria to identify a social group; see the illuminating
discussion in Castellano-Chacon v. INS, 341 F.3d 533, 546-49
(6th Cir. 2003). If society recognizes a set of people
having certain common characteristics as a group, this
is an indication that being in the set might expose one to
special treatment, whether friendly or unfriendly. In our
society, for example, redheads are not a group, but veter-
ans are, even though a redhead can be spotted at a glance
and a veteran can’t be. “Visibility” in the literal sense in
which the Board has sometimes used the term might
be relevant to the likelihood of persecution, but it is
irrelevant to whether if there is persecution it will be on
the ground of group membership. Often it is unclear
whether the Board is using the term “social visibility” in
8 No. 09-1932
the literal sense or in the “external criterion” sense, or
evenwhether it understands the difference. See, e.g.,
In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75 (BIA 2007).
Arteaga offered an alternative argument for why
former gang members should not be considered members
of a particular social group—that “the category of non-
associated or disaffiliated persons in this context is far
too unspecific and amorphous to be called a social
group.” 511 F.3d at 946. Although the Board in its
opinion in this case cited Arteaga, it did not mention this
argument. There may be categories so ill-defined that
they cannot be regarded as groups—the “middle class,”
for example. But this problem is taken care of by the
external criterion—if a Stalin or a Pol Pot decides to
exterminate the bourgeoisie of their country, this makes
the bourgeoisie “a particular social group,” which it
would not be in a society that didn’t think of middle-
class people as having distinctive characteristics; it
would be odd to describe the American middle class as “a
particular social group.” Ramos was a member of a spe-
cific, well-recognized, indeed notorious gang, the former
members of which do not constitute a “category . . . far too
unspecific and amorphous to be called a social group.” It
is neither unspecific nor amorphous. Arteaga was an
“inactive” member of a gang, a status that could be
thought to lend it a certain amorphousness.
We can imagine the Board’s exercising its discretion to
decide that a “refugee” (that is, a person eligible for
asylum) whose claim for asylum is based on former
membership in a criminal gang should not be granted
No. 09-1932 9
asylum. The Board has discretion to deny asylum to
eligible persons, 8 U.S.C. § 1158(b)(1); INS v. Cardoza-
Fonseca, 480 U.S. 421, 428 n. 5 (1987); Ghebremedhin v.
Ashcroft, 392 F.3d 241, 244 (7th Cir. 2004), subject to
judicial review for abuse of discretion. 8 U.S.C.
§ 1252(a)(2)(B)(ii); Groza v. INS, 30 F.3d 814, 821 (7th
Cir. 1994); Doherty v. INS, 908 F.2d 1108, 1117-18 (2d Cir.
1990), reversed on other grounds by 502 U.S. 314 (1992).
But that was not the Board’s ground in this case, and it
could not have been. Ramos is seeking not asylum but
withholding of removal, and withholding of removal is
mandatory if the applicant (unless he falls within the
statutory exceptions, 8 U.S.C. § 1231(b)(3)(B); INS v.
Aguirre-Aguirre, supra, 526 U.S. at 419; Ali v. Ashcroft, 395
F.3d 722, 730 (7th Cir. 2005)) establishes that if expelled
from the United States he is more likely than not to be
persecuted for a reason recognized in the immigration law
as a proper ground for asylum or for withholding of
removal. The reason for the difference is that an asylum
seeker need prove only a well-founded fear of persecution.
The applicant for withholding of removal must prove
that he will (more likely than not) be persecuted. His
danger is greater, and the Board may not subject him to
it if he meets the other criteria for withholding of removal.
Ramos was a member of a violent criminal group for
nine years. If he is found to have committed violent acts
while a member of the gang (as apparently he did, al-
though the evidence is not entirely clear), he may be
barred from the relief he seeks for reasons unrelated to
whether he is a member of a “particular social group”; for
remember the bar for aliens who commit a serious nonpo-
10 No. 09-1932
litical crime. The Board must also determine whether
Ramos is more likely than not to be persecuted if he is
returned to El Salvador. See 8 U.S.C. § 1231(b)(3); Gonzales
v. Thomas, 547 U.S. 183, 184-87 (2006) (per curiam); INS v.
Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per curiam);
Uriostegui v. Gonzales, 415 F.3d 660, 665 (7th Cir. 2005);
Konan v. Attorney General, 432 F.3d 497, 501-02 (3d Cir.
2005); Bushira v. Gonzales, 442 F.3d 626, 633 (8th Cir. 2006).
In this connection, we note with disapproval the immi-
gration judge’s mention of a letter from the U.S. embassy
in El Salvador stating implausibly that MS does not
punish defectors whose defection was motivated by
Christian beliefs. The letter had not been seen by the
parties, just by the judge; and while he said that he
wasn’t relying on it, this makes us wonder why he men-
tioned it. Should he wish to consider it on remand, he
must give Ramos an opportunity to respond to it. 8 U.S.C.
§ 1229a(b)(4)(B).
The petition is granted, the Board’s decision vacated,
and the case remanded.
12-15-09