Garay Reyes v. Lynch, No. 14-70686 (9th Cir. 2016)
Annotate this CasePetitioner, a native and citizen of El Salvador, seeks review of the BIA's opinion in Matter of W-G-R-, wherein the BIA dismissed petitioner's appeal from an IJ's denial of petitioner's applications for withholding of removal and relief from removal under Article 3 of the Convention Against Torture (CAT). The court denied the petition with regards to petitioner's claims for withholding of removal. The court concluded that the BIA's articulation of its “particularity” and “social distinction” requirements for demonstrating membership in a “particular social group” are entitled to Chevron deference; the BIA reasonably determined that petitioner's proposed particular social groups of “former members of Mara 18” and “deportees from the United States to El Salvador” are not cognizable; but the court granted the petition with respect to the denial of petitioner's CAT claim because the IJ committed legal error and the BIA employed an impermissible standard of review in assessing petitioner's request for CAT relief. The court remanded to allow the agency to reconsider the application for CAT relief recognizing that killings can constitute torture and to undertake the requisite fact finding in accordance with the agency’s regulations.
Court Description: Immigration. Granting in part and denying in part a petition for review of the Board of Immigration Appeals’ decision affirming the denial of withholding of removal and protection under the Convention Against Torture, the panel afforded Chevron deference to the Board’s articulation in Matter of W–G–R–, 26 I. & N. Dec. 208 (BIA 2014) and Matter of M–E–V–G–, 26 I. & N. Dec. 227 (BIA 2014) of its “particularity” and “social distinction” requirements for demonstrating membership in a “particular social group” for purposes of withholding relief, but held that the Board applied an impermissible standard of review in assessing the request for CAT relief. The panel held that the Board’s construction of the “particularity” requirement, which focuses on whether the group is discrete or is, instead, amorphous, is reasonable and consistent with its own precedent, which has long required that a particular social group have clear boundaries and that its characteristics have commonly accepted definitions. The panel held that the Board’s articulation of its “social distinction” requirement, which requires evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group, is also reasonable. REYES V. LYNCH 3 Applying that framework, the panel held that the Board reasonably determined that petitioner’s proposed particular social group of “former members of Mara 18 gang” lacks particularity and social distinction, and that his proposed social group of “deportees from the United States to El Salvador” lacks particularity. The panel remanded the CAT claim to allow the agency to reconsider the application for CAT relief recognizing that killings can constitute torture, and to undertake the requisite fact finding in accordance with the agency’s regulations.
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