Gomez v. Garland

UNPUBLISHED

Argued: September 22, 2021

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED:

Nathan Randal Bogart, BOGART, SMALL + NAYLOR, Fayetteville, Arkansas, for Petitioner.

Paul Fiorino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Jeffrey C. Bossert, Acting Assistant Attorney General, Carl H. McIntyre, Jr., Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before WILKINSON, WYNN, and FLOYD, Circuit Judges.

Petition for review granted and remanded for further proceedings by unpublished opinion. Judge Floyd wrote the opinion in which Judge Wynn joined. Judge Wynn wrote a separate concurring opinion. Judge Wilkinson wrote a dissenting opinion.

Unpublished opinions are not binding precedent in this circuit.

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FLOYD, Circuit Judge.

Carlos Escobar Gomez seeks review of the Board of Immigration Appeals' (BIA) dismissal of his application for asylum. The BIA determined that Escobar Gomez was ineligible for asylum because he failed to establish membership in a particular social group defined with sufficient particularity. Because this ruling is not supported by a reasoned explanation, we grant the petition for review and remand to the BIA for further proceedings.

I.

Escobar Gomez is a thirty-year-old native and citizen of El Salvador. He departed El Salvador on November 23, 2013, and arrived in the United States on January 19, 2014, at or near Hidalgo, Texas, entering without inspection. Escobar Gomez was placed into removal proceedings pursuant to 8 U.S.C. § 1229a following service of a Notice to Appear (NTA) on February 12, 2014. Escobar Gomez conceded his removability, but sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT), claiming that he would be unsafe in El Salvador because he had witnessed a murder and subsequently was threatened by gang members.

Per Escobar Gomez's testimony, on October 24, 2013, while returning home from a soccer practice in his hometown in El Salvador, Escobar Gomez and two of his friends witnessed two members of an unspecified gang shoot and kill a known acquaintance. On November 13, 2013, one of the gang members involved in the shooting, Costello, approached Escobar Gomez and warned him that if he went to the authorities or told anyone 2

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else what he had seen, he would meet the same fate as the murder victim. Costello left Escobar Gomez with his cell phone number so Escobar Gomez could inform him if the police asked any questions, warning him they had further things to discuss. Neither Escobar Gomez nor his two friends reported either witnessing the murder or the subsequent threat to legal authorities. He believed that the police would be unable to protect him, fearing that even if Costello were arrested, other members of the gang would seek retribution by following through on Costello's threat. Ten days after receiving the threat against his life, on November 23, 2013, Escobar Gomez fled the country.

At the merits hearing held June 19, 2018, the Immigration Judge (IJ) denied Escobar Gomez's application for asylum based on his finding that Escobar Gomez's proposed particular social group, "witnesses to a crime," was not cognizable.^[*] The IJ evaluated the proposed particular social group to determine whether it was (i) immutable, (ii) socially visible, and (iii) defined with sufficient particularity. A.R. 50 (citing Matter of M-E-V-G-, 26 I. &N. Dec. 227, 237 (BIA 2014)). The IJ indicated concerns about the mutability of the group but did not enumerate them. He found that the particular social group lacked social distinction, in large part because Escobar Gomez did not tell anyone except his mother that he had witnessed the murder and thus would not be recognized by others in the community as a member of that social group. On the issue of particularity, he determined that the particular social group was too amorphous and did not lend itself to a benchmark for group membership. Having determined that Escobar Gomez did not belong

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to a particular social group, the IJ did not analyze the other requirements for asylum eligibility. Additionally, the IJ did not assess Escobar Gomez's other proposed particular social group-"witnesses to a murder in El Salvador."

Escobar Gomez filed a timely Notice of Appeal with the BIA on July 13, 2018. On May 13, 2020, the BIA affirmed the IJ's decision and dismissed Escobar Gomez's appeal. The BIA found that Escobar Gomez's proposed particular social group "witnesses to a crime" is not particularly defined and thus does not constitute a protected ground because "it includes both people who report crime, and those who . . . do not." A.R. 5. Regarding the second proposed particular social group "witnesses to a murder in El Salvador," the BIA said only that it is not particularly defined "[f]or the same reason," and thus the IJ's failure to evaluate the cognizability of that group constituted harmless error. A.R. 5. Escobar Gomez petitions for review of the BIA's order denying his application for asylum.

II.

"When, as here, the BIA adopts and affirms the IJ's decision and supplements it with its own opinion, we review both decisions." Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). Both the IJ and the BIA based their denials on an analysis of the issue of particularity. That is to say neither addressed the other elements of an asylum claim-past persecution or well-founded fear of future persecution, nexus between the particular social group and persecution suffered, or the government's ability or willingness to protect the individual. See Perez Vasquez v. Garland, 4 F.4th 213, 221 (4th Cir. 2021). In order to make a successful asylum claim, the petitioner must establish each of these individual 4

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elements, in addition to meeting the separate standard for establishing a particular social group. Canales-Rivera v. Barr, 948 F.3d 649, 660 n.1 (4th Cir. 2020) (Agee, J., concurring) (quoting Crespin-Valladares, 632 F.3d 117, 124-126 (4th Cir. 2011)) (stating that although the INA does not define "particular social group," we have "long deferred to the BIA's interpretation . . ., which provides that to qualify as a particular social group, a group's members (1) must share common, immutable characteristics that (2) give the group social visibility and that (3) define the group with sufficient particularity to have well-defined boundaries, i.e., constitute a discrete class of persons") (cleaned up). As the BIA in this case only addressed particularity on appeal, we do not, and jurisdictionally cannot, evaluate any other elements of the asylum test. Amaya v. Rosen, 986 F.3d 424, 429 (4th Cir. 2021). Our review is limited to the grounds relied upon by the agency. Cordova, 759 F.3d at 337.

The Court is obliged to uphold a decision of the BIA unless it is "manifestly contrary to the law and an abuse of discretion." See Tairou v. Whitaker, 909 F.3d 702, 706 (4th Cir. 2018). The Court may find that the BIA abused its discretion if it "failed to offer a reasoned explanation for its decision, or if it distorted or disregarded important aspects of an applicant's claim." Id. The BIA also "abuses its discretion in making an error of law." Id. Although deference to the BIA's determinations is substantial, it is not unlimited. Essohou v. Gonzales, 471 F.3d 518, 520 (4th Cir. 2006); Lopez-Soto v. Ashcroft, 383 F.3d 228, 233 (4th Cir. 2004).

Given those grounds for review, we find the agency abused its discretion by failing to provide a reasoned explanation and, in the limited explanation it did provide, making an

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error of law. In its analysis of Escobar Gomez's claims, the agency relied on its finding that the proposed particular social group lacked limiting features because "it includes both people who report crime, and those who . . . do not." A.R. 5. It applied the same reasoning to both proposed particular social groups, failing to explain why the broader group of "witnesses to a crime" should be synonymous with the narrower group "witnesses to a murder in El Salvador" as a matter of particularity. Its finding on particularity as it pertains to the second proposed social group requires further analysis.

Additionally, the stated grounds on which the agency relies-the failure to distinguish between those who report crime and those who do not-is insufficient to support its determination on particularity. "[T]he focus of the particularity requirement is whether the group is discrete or is, instead, amorphous." Matter of W-G-R-, 26 I. &N. Dec. 208, 214 (BIA 2014); see also Matter of M-E-V-G-, 26 I. &N. Dec. at 239 (stating that to be particular a social group must "be discrete and have definable boundaries-it must not be amorphous, overbroad, diffuse, or subjective"). But we have stated that whether the proposed social group may be divided into smaller subgroups is not dispositive of a particularity finding. Amaya, 986 F.3d at 434. A particular social group need not be made up of homogenous members, nor does the existence of smaller parts within the whole automatically discount the existence of a particular social group. See id. "What matters is not whether the group can be subdivided based on some arbitrary characteristic but whether the group itself has clear boundaries." Id. Large and internally diverse social groups are cognizable without further qualification, id. at 433 n.6, so long as boundaries drawn around the group are clear. Other statutory requirements, including nexus, operate to further limit

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the number of members within the groups who qualify for asylum, but do not bear...