Minh Nguyen v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINH P. NGUYEN, No. 17-72197
Petitioner,
Agency No.
v. A045-849-861
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 19, 2020
Honolulu, Hawaii
Filed December 21, 2020
Before: J. Clifford Wallace, Carlos T. Bea, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Wallace
2 NGUYEN V. BARR
SUMMARY *
Immigration
Denying Minh Nguyen’s petition for review of the Board
of Immigration Appeals’ denial of his applications for
asylum and withholding of removal, the panel held that
Nguyen waived review of the Board’s discretionary denial
of asylum relief, and that the Board properly concluded that
Nguyen’s proposed social group comprised of “known drug
users” was not legally cognizable because it lacks
particularity.
Nguyen asserted a fear of persecution in Vietnam,
including possible placement in a compulsory drug
rehabilitation center, based on his prior drug use history and
criminal record.
The panel held that Nguyen waived review of the
Board’s discretionary denial of asylum relief by failing to
contest that aspect of the Board’s decision in his opening
brief, and instead raising it for the first time in his reply brief.
The panel also held that the Board correctly concluded
that Nguyen’s proposed social group of “known drug users”
lacked particularity under the standards set forth in Matter of
M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of
W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). The panel
explained that “drug” and “user” are broad terms that cause
the proposed group to lack definable boundaries and to be
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NGUYEN V. BARR 3
amorphous, overbroad, diffuse, or subjective. The panel
observed that although Nguyen asserted that the term “drug”
encompassed any narcotic that is illegal in Vietnam, he did
not provide any evidence on the Vietnamese societal view,
or Vietnamese criminal law, for which drugs could lead to
compulsory rehabilitation. The panel also agreed with the
Board that the term “user” is vague and could vary broadly
based on the amount and frequency of an individual’s drug
use, and could encompass first-time users, occasional users,
habitual users, or rehabilitated individuals like Nguyen.
COUNSEL
Carmen DiAmore-Siah (argued), Law Office of Carmen Di
Amore-Siah, Honolulu, Hawai‘i, for Petitioner.
Tim Ramnitz (argued), Attorney; Jennifer P. Levings, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
WALLACE, Circuit Judge:
Minh Nguyen petitions from the Board of Immigration
Appeals’ (Board) denial of his applications for asylum and
withholding of removal.
Nguyen is a native citizen of Vietnam. He was admitted
to the United States through a family-based visa petition as
a lawful permanent resident in 1997. Nguyen has an
extensive criminal record that eventually caused the
4 NGUYEN V. BARR
Department of Homeland Security (Department) to initiate
removal proceedings. After numerous hearings, the
Immigration Judge (IJ) granted Nguyen’s applications for
asylum and withholding of removal. The IJ held that
Nguyen had established his membership in a cognizable
particular social group: known drug users. The IJ also held
that Nguyen had established a well-founded fear of future
persecution due to the 2008 repatriation agreement between
the United States and Vietnam, which requires the United
States to share a deportee’s criminal record, and due to
Vietnam’s policy of placing known drug users in
compulsory rehabilitation centers. The IJ acknowledged that
Nguyen had been sober for ten years, so it was not clear
whether Vietnam would consider him to be a current drug
user in need of rehabilitation; nonetheless, she found a
sufficient risk of persecution.
The Board reversed and held that the IJ committed clear
error by granting the applications. The Board reasoned that
Nguyen’s proposed particular social group lacks
particularity. The Board also determined that the IJ clearly
erred in her decision that Nguyen had established a well-
founded fear of future persecution because there was no
evidence that prior users “with old conviction records are
similarly targeted” for compulsory drug rehabilitation.
Finally, the Board held that the IJ erred in her decision that
Nguyen merited asylum as a matter of discretion, because
she did not consider his lengthy criminal record or his
mother’s residency in Vietnam. Nguyen petitions us for
review of the Board’s denial of his applications for asylum
and withholding of removal.
We have jurisdiction pursuant to 8 U.S.C. § 1252. Our
review is limited to the Board’s decision where it “conducts
its own review of the evidence and law rather than adopting
NGUYEN V. BARR 5
the IJ’s decision . . . except to the extent that the IJ’s opinion
is expressly adopted.” Reyes v. Lynch, 842 F.3d 1125, 1140
(9th Cir. 2016) (citation and quotation marks omitted). We
review the IJ’s factual findings for substantial evidence.
Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). We
review questions of law, such as whether a proposed
particular social group is cognizable, de novo. Perdomo v.
Holder, 611 F.3d 662, 665 (9th Cir. 2010). We deny the
petition for review.
I.
Nguyen became a lawful permanent resident of the
United States in 1997, but he was never naturalized. Nguyen
has been arrested numerous times in five different states for
offenses such as theft, domestic violence, possession of
controlled substances, public intoxication, and driving under
the influence. Nguyen visited his family in Vietnam in 2014.
When he attempted to reenter the United States, Customs
and Border Patrol deemed Nguyen to be an applicant for
admission due to one of his drug convictions.
The Department served Nguyen with a Notice to Appear
for removal proceedings and charged him as inadmissible
due to his controlled substance offense identified by
Customs and Border Patrol, pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). He admitted five of the six
allegations contained in the notice. Nguyen applied for
cancellation of removal for certain permanent residents,
pursuant to 8 U.S.C. § 1229b(a), as well as asylum,
withholding of removal, and relief pursuant to the
Convention Against Torture (CAT). Nguyen insisted that he
feared returning to Vietnam because he is a Buddhist and a
member of two proposed particular social groups. The first
proposed group is comprised of “relatives of soldiers that
6 NGUYEN V. BARR
directly opposed the communist government,” and the
second is comprised of “known drug users.”
Subsequently, Nguyen conceded that he was ineligible
for a waiver of inadmissibility. Consequently, Nguyen’s
merits hearing before the IJ focused on his applications for
asylum, withholding of removal, and CAT status. Nguyen’s
brother testified about the family’s Buddhist practice, their
mother’s continued adherence to Buddhism once she
returned to Vietnam in 2010, and Nguyen’s trip to Vietnam
in 2014 when he performed a Buddhist ritual without
interference from the Vietnamese government. His brother
believed that Nguyen might encounter problems with the
Vietnamese government upon his repatriation due to his
criminal record and drug use, but Nguyen’s brother
acknowledged that he did not know the law in Vietnam.
Nguyen testified about his fear of removal due to his
criminal record and drug use history, as well as his desire not
to live in Vietnam because he believes “life in Vietnam is
very difficult.” Even so, he admitted to visiting Vietnam in
the past without incident.
After the hearing before the IJ, Nguyen sought to
withdraw his applications for relief and agreed to return to
Vietnam if the U.S. government would not notify the
Vietnamese government of his convictions. The Department
insisted that the case proceed to the merits to resolve his
religious persecution claim and because it could not find a
direct flight from Hawaii to Vietnam to ensure Nguyen’s
return to Vietnam. At a hearing preceding the IJ’s decision,
Nguyen waived his application for CAT status after the IJ
notified the parties that she would grant at least Nguyen’s
application for asylum. Ultimately, the IJ granted Nguyen’s
applications for asylum and withholding of removal.
However, the IJ rejected Nguyen’s alleged fear based on his
NGUYEN V. BARR 7
Buddhism and political opinions, and she found him
ineligible for cancellation of removal.
The Department appealed to the Board. It challenged the
particular social group finding and the well-founded fear of
future persecution finding, emphasizing that Nguyen had not
presented any evidence that he would be placed in a drug
rehabilitation center or that placement in a center would
qualify as persecution. The Department also argued that
Nguyen did not merit a favorable exercise of discretion for
his asylum application due to his lengthy and serious
criminal record. The Board sustained the Department’s
appeal. The Board held that the IJ clearly erred in her
findings and reversed the grant of Nguyen’s applications.
Nguyen petitions for review of the Board’s denial of his
applications for asylum and withholding of removal.
Nguyen argues two points in his petition for review. The
first is that the Board erred in holding that his proposed
particular social group of “known drug users” is not
cognizable. The second is that the Board erred in holding
that Nguyen had not established a well-founded fear of
future persecution.
II.
We first hold that Nguyen has waived review of the
Board’s discretionary denial of asylum because he did not
contest this aspect of the Board’s decision in his opening
brief. Nguyen cannot preserve this issue for review when he
raised it for the first time in his reply brief. See Singh v.
Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004) (holding
that issues not raised in a petitioner’s opening brief are
waived). Our review of the discretionary denial of asylum
is, therefore, waived.
8 NGUYEN V. BARR
III.
The Board’s rejection of Nguyen’s proposed particular
social group as not cognizable was correct. Nguyen argues
that the Board misapplied its precedent regarding “social
visibility” because he would become “visible” to
Vietnamese prosecutors due to the repatriation agreement
that requires disclosure of his criminal record. We reject this
nonsensical argument, as it conflates the particularity factor
with the social distinction factor. Nguyen also
impermissibly attempts to change his argument in his reply
brief, wherein he argues that the Board applied the
particularity factor too narrowly and ignored a
commonsense understanding of drug user. We disagree.
The Board was correct in rejecting Nguyen’s proposed group
as lacking particularity.
The Attorney General has discretion to grant asylum to a
refugee pursuant to the Immigration and Nationality Act.
8 U.S.C. § 1158(b)(1)(A). To qualify as a refugee, Nguyen
must prove that he is unwilling or unable to return to
Vietnam due to “persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.” § 1101(a)(42). Membership in the group must be
“at least one central reason” for Nguyen’s feared
mistreatment. § 1158(b)(1)(B)(i); see also Parussimova v.
Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). To qualify for
withholding of removal, Nguyen must demonstrate that his
life would be threatened if he were removed to Vietnam
because of one of five enumerated grounds, including
membership in a particular social group. 8 U.S.C.
§ 1231(b)(3)(A); see also Reyes, 842 F.3d at 1132 n.3
(establishing the existence of a cognizable particular social
group is a separate requirement from establishing
NGUYEN V. BARR 9
membership in the group). For purposes of withholding,
membership in the group must be “a reason” for Nguyen’s
feared mistreatment. 8 U.S.C. § 1231(b)(3)(C); see also
Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir.
2017).
The phrase “particular social group” is ambiguous.
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.
2013). Thus, the IJ’s and the Board’s interpretation of that
term is entitled to Chevron deference, so long as it is
reasonable. Id. at 1087 (holding that the Board’s
construction must be accepted if reasonable, even if not the
best interpretation). We have endorsed two companion
Board decisions that clarified the elements underlying the
particular social group analysis: Matter of M-E-V-G-, 26 I.
& N. Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I. &
N. Dec. 208 (BIA 2014). See Reyes, 842 F.3d at 1135
(“[T]he BIA’s interpretation of W-G-R- and M-E-V-G- of the
ambiguous phrase ‘particular social group’ . . . is reasonable
and entitled to Chevron deference”). Therefore, when we
review the particular social group determination in an
individual case, we ask the legal question of whether the IJ
or the Board reasonably applied the W-G-R- and M-E-V-G-
standard in a manner consistent with precedent.
In Matter of M-E-V-G-, the Board held that the applicant
must establish that the group in which membership is
claimed must be: “(1) composed of members who share a
common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in
question.” 26 I. & N. Dec. at 237.
In Matter of W-G-R-, the Board further defined each
factor. See 26 I. & N. Dec. at 212–18. The common
immutable characteristic has been defined as one “that the
members of the group either cannot change, or should not be
10 NGUYEN V. BARR
required to change because it is fundamental to their
individual identities or consciences.” Id. at 212 (citation
omitted). The particularity element requires characteristics
that “provide a clear benchmark for determining who falls
within the group,” wherein the relevant society must have a
“commonly accepted definition[]” of the group. Id. at 214.
“The group must also be discrete and have definable
boundaries—it must not be amorphous, overbroad, diffuse,
or subjective.” Id. Social distinction requires evidence “that
society in general perceives, considers, or recognizes
persons sharing the particular characteristic to be a group.”
Id. at 217; see also Cordoba v. Barr, 962 F.3d 479, 482–83
(9th Cir. 2020).
We affirm the Board’s holding that Nguyen failed to
establish “known drug users” as a cognizable particular
social group under the standard set forth in W-G-R- and M-
E-V-G-. The Board was correct that Nguyen’s proposed
group lacked particularity. Even if we ignore the ambiguity
of the term “known,” “drug” and “user” are broad terms that
cause the proposed group to lack definable boundaries and
to be amorphous, overbroad, diffuse, or subjective. Nguyen
asserts that “drug” encompasses any narcotic that is illegal
in Vietnam. Yet he does not provide any evidence on the
Vietnamese societal view, or Vietnamese criminal law, for
which drugs could lead to compulsory rehabilitation.
We also agree with the Board that the term “user” is
vague and could vary broadly based on the amount and
frequency of an individual’s drug use. It could encompass
first-time users, occasional users, habitual users, or
rehabilitated individuals like Nguyen. Finally, Nguyen’s
focus on “social visibility” misses the mark. The Board
explicitly based its denial on Nguyen’s failure to establish a
cognizable particular social group due to the lack of
NGUYEN V. BARR 11
particularity of “known drug user” rather than lack of social
distinction. Ultimately, W-G-R- and M-E-V-G- are clear that
Nguyen bears the burden of proving the alleged “particular
social group” is particularized, socially distinct, and based
on an immutable characteristic. He failed to satisfy that
burden.
We affirm the Board’s denial of Nguyen’s applications
for asylum and withholding of removal. We do not reach the
question of whether the Board erred in rejecting Nguyen’s
well-founded fear of persecution because he failed to
establish a cognizable particular social group.
DENIED.