Ucelo-Gomez v. Mukasey, No. 04-4184 (2d Cir. 2007)
Annotate this Case
Download PDF
04-4184-ag(L), 04-4185-ag (CON) Ucelo-Gomez v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Submitted: March 2, 2007) (Decided: November 21, 2007) Docket Nos. 04-4184-ag(L), 04-4185-ag(CON) - - - - - - - - - - - - - - - - - - - -x JOSE GODOFREDO UCELO-GOMEZ and ANA MARIELA ESPANA-ESPINOZA, Petitioners, - v.MICHAEL B. MUKASEY, Attorney General,* Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WALKER and WALLACE, Circuit Judges.** This reviews a decision of the Board of Immigration Appeals on limited remand of a petition for review from an * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case. ** The Honorable J. Clifford Wallace, United States Court of Appeals for the Ninth Circuit, sitting by designation. 1 order of the Board of Immigration Appeals summarily 2 affirming an Immigration Judge s denial of petitioners 3 applications for asylum and withholding of removal. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Upon further consideration, the petition is denied. Roberto Tschudin Lucheme, Glastonbury, Connecticut, for Petitioners. Francis W. Fraser, Margaret Perry, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. PER CURIAM: Petitioners Jose Godofredo Ucelo-Gomez and Ana Mariela 20 Espana-Espinosa (husband and wife), citizens of Guatemala, 21 originally challenged a summary affirmance by the Board of 22 Immigration Appeals ( BIA ) of the oral decision of an 23 immigration judge ( IJ ) that (1) denied their applications 24 for asylum and withholding of removal under the Immigration 25 and Naturalization Act ( INA ) and their applications for 26 protection under the Convention Against Torture ( CAT ), and 27 (2) directed their removal to Guatemala. 28 was premised on their membership in a social group composed 29 of affluent Guatemalans who suffer persecution fueled by 30 class rivalry in an impoverished society. 2 Their asylum claim This Court 1 vacated the BIA s order and remanded the case to the BIA by 2 published opinion on May 9, 2006, so the BIA could determine 3 in the first instance whether affluent Guatemalans in the 4 petitioners situation constitute a particular social 5 group within the meaning of the INA. 6 Gonzales, 464 F.3d 163, 172 (2d Cir. 2006) (amending 448 7 F.3d 180 (2d Cir. 2006)). 8 issue a responsive opinion; but the mandate of this Court 9 was placed on hold on May 12, 2006. See Ucelo-Gomez v. The BIA was given 49 days to On June 19, 2006-- 10 before the end of the 49 day period but while the mandate 11 was still on hold--the BIA issued a non-precedential 12 opinion, affirming the IJ s decision on the grounds that 13 petitioners had not shown that affluent Guatemalans are 14 members of a particular social group and that they did not 15 demonstrate they were persecuted or faced a well-founded 16 fear of future persecution on account of a protected ground. 17 See In re Espana-Espinoza & Ucelo-Gomez, A 79 781 430, A 79 18 781 419 (B.I.A. June 19, 2006). 19 issued nunc pro tunc and filed on September 28, 2006, this 20 Court clarified that its original remand was pursuant to 21 United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994), 22 and that the panel thus retained jurisdiction to rule upon 3 In an amended opinion 1 the petition on appeal following disposition of the remand. 2 On October 2, 2006 the hold was lifted and the following day 3 the mandate issued. 4 precedential opinion, see In re A-M-E- & J-G-U-, 24 I. & N. 5 Dec. 69 (B.I.A. Jan. 31, 2007), publishing as precedent In 6 re Espana-Espinoza & Ucelo-Gomez, A 79 781 430, A 79 781 419 7 (B.I.A. June 19, 2006).3 8 9 The BIA later issued an identical The BIA has fulfilled the terms of our remand by rendering a timely opinion as to whether affluent 10 Guatemalans constitute a particular social group for asylum 11 purposes. 12 forth by the petition, and upon further consideration in 13 light of the BIA s opinion, we now deny the petition. We retained jurisdiction to decide the issues set 14 15 16 BACKGROUND The facts underlying Mr. Ucelo-Gomez s and Ms. Espana- 17 Espinosa s petitions for review are set forth in detail in 18 our previous opinion, see Ucelo-Gomez, 464 F.3d at 165-66, 19 and the reader s familiarity with it is assumed. 3 The BIA s precedential decision amended its June 19, 2006 non-precedential decision by making editorial changes consistent with its designation of the case as precedent. See In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 69 n.1 (B.I.A. Jan. 31, 2007). 4 1 2 DISCUSSION 3 I 4 When the BIA issues an opinion, the opinion becomes 5 the basis for judicial review of the decision of which the 6 alien is complaining. 7 (2d Cir. 2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655 8 (7th Cir. 2004)). 9 case, we grant Chevron deference to a precedential opinion Chen v. Gonzales, 417 F.3d 268, 271 As we stated in our opinion remanding the 10 of the BIA if the basic requirements of Chevron are met. 11 See Ucelo-Gomez, 464 F.3d at 170; see also Shi Liang Lin v. 12 U.S. Dep t of Justice, 494 F.3d 296, 304 (2d Cir. 2007) (en 13 banc) ( When reviewing the BIA s interpretation of statutes 14 that it administers, we apply the Chevron principles. ). 15 Under the Chevron standard, we adhere to Congress purpose 16 where the INA clearly speaks to the point in question, but 17 if the INA is silent or ambiguous, then we must defer to any 18 reasonable interpretation of the statute adopted by the 19 Board as the entity charged by Congress with the statute s 20 enforcement. 21 2001) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 22 (1999)). Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir. Here, after the BIA issued a non-precedential 5 1 decision, the agency subsequently had occasion to issue an 2 identical precedential opinion construing the ambiguous 3 statutory phrase particular social group. 4 inquire whether the BIA s construction was a reasonable 5 interpretation of the statute. We therefore 6 7 8 9 II In its precedential opinion, the BIA determined that affluent Guatemalans are not a particular social group 10 for asylum eligibility purposes. 11 decision of In re Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), 12 the BIA explained that members of a particular social group 13 must share some common characteristic that members either 14 cannot change, or should not be required to change because 15 it is fundamental to their individual identities or 16 consciences. 17 quotation marks omitted). 18 factors identified in In re C-A-, 23 I. & N. Dec. 951 19 (B.I.A. 2006): (1) membership in a purported social group 20 requires a certain level of social visibility and (2) the 21 definition of the social group must have particular and 22 well-defined boundaries. Referring to the seminal A-M-E-, 24 I. & N. Dec. at 74 (internal The BIA went on to consider two A-M-E-, 24 I. & N. Dec. at 74. 6 1 The BIA s rulings on these points constitute sufficient--and 2 affirmable--holdings. 3 1. Social Visibility. In re C-A- s social visibility 4 requirement is consistent with this Court s reasoning that a 5 particular social group is comprised of individuals who 6 possess some fundamental characteristic in common which 7 serves to distinguish them in the eyes of a persecutor--or 8 in the eyes of the outside world in general. 9 947 F.2d 660, 664 (2d Cir. 1991). Gomez v. INS, The BIA s decision relied 10 heavily upon In re C-A- s discussion of recent UN Guidelines 11 that indicate that persecutory action toward a group may be 12 a relevant factor in determining the visibility of a group 13 in a particular society. 14 omitted). 15 existence of persecution is a relevant factor, a social 16 group cannot be defined exclusively by the fact that its 17 members have been subjected to harm . . . . 18 & N. Dec. at 74 (emphasis added). 19 principles, the BIA considered whether affluent Guatemalans 20 are more frequently targeted by criminals than the rest of 21 the Guatemalan population. 22 not: 23 pervasive at all socio-economic levels. 23 I. & N. Dec. at 960 (emphasis However (as the BIA stated), although the A-M-E-, 24 I. Applying these The BIA concluded that they are [V]iolence and crime in Guatemala appear to be 7 A-M-E-, 24 I. & N. 1 Dec. at 74-75. 2 self-definition as a social group for asylum purposes 3 depends on no disadvantage other than purported visibility 4 to criminals. 5 is attributable to the incentives presented to ordinary 6 criminals rather than to persecution, the scales are tipped 7 away from considering those people a particular social 8 group within the meaning of the INA. 9 2. Moreover, it matters that the petitioners When the harm visited upon members of a group Well-Defined Boundaries. The BIA reasoned that the 10 terms wealthy and affluent are highly relative and 11 subjective. 12 affluence is simply too subjective, inchoate, and variable 13 to provide the sole basis for membership in a particular 14 social group. 15 particular social group, a determination about whether any 16 petitioner fit into the group (or might be perceived as a 17 member of the group) would necessitate a sociological 18 analysis as to how persons with various assets would have 19 been viewed by others in their country. 20 that if one defined affluent to include all of those 21 Guatemalans who did not live in poverty, the group would 22 make up twenty percent of the population. Id. at 76. Id. As the BIA explained, wealth or If wealth defined the boundaries of a 8 The BIA also noted A-M-E-, 24 I. & 1 N. at 76 & n.8.4 2 in the ordinary course, and more money attracts more and 3 better thieves, it would be impractical for IJs to 4 distinguish between petitioners who are targeted or held to 5 ransom because of their class status or merely because 6 that s where the money is. 7 Moreover, because money attracts thieves The BIA s analysis is consistent with existing BIA 8 precedent holding that harm motivated purely by wealth is 9 not persecution. See In re V-T-S-, 21 I. & N. Dec. 792, 10 798-99 (B.I.A. 1997), cited by A-M-E-, 24 I. & N. at 72. 11 Our own precedent validates the idea that class status does 12 not establish a social group with sufficient particularity. 13 See Saleh v. U.S. Dep t of Justice, 962 F.2d 234, 240 (2d 14 Cir. 1992) (holding that poor Yemeni Muslims are not a 15 particular social group because the group posses[es] 16 broadly-based characteristics ). 4 The BIA s interpretation Like the petitioners, we agree that a large group can be a particular social group ; the BIA must not mean that a group s size can itself be a sound reason for finding a lack of particularity. Instead, we interpret the BIA s observation as merely illustrating how the concept of wealth is so indeterminate, id. at 76--the purported social group could vary from one to twenty percent of the total population. This indeterminacy is a relevant consideration in light of In re C-A- s concerns about groups that are too loosely defined to meet the requirement of particularity. In re C-A-, 23 I. & N. Dec. at 957. 9 1 of the statutory phrase particular social group as 2 excluding affluent Guatemalans was therefore reasonable. 3 4 III 5 The petitioners argued in their brief to the BIA on 6 remand that their political beliefs are imputed to them by 7 virtue of their wealth[,] i.e. they must support the status 8 quo as it protects the wealth they have accumulated. 9 BIA Br. 4. Pet r But the petitioners cited no evidence in the 10 record that supports this assertion. 11 concluded, nothing indicated that the individual or 12 individuals who threatened petitioners had any motive other 13 than increasing their own wealth at the expense of the 14 petitioners. 15 correct for the BIA to hold that the petitioners failed to 16 meet their burden of proof in showing any evidence of a 17 motivation for persecution other than membership in a 18 particular social group. A-M-E-, 24 I. & N. at 76. 19 20 21 22 As the BIA correctly CONCLUSION 10 It was therefore 1 2 For the foregoing reasons, we deny the petition for review. 11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
