Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 13-1192
Argued:
Decided:
Temu
is
Tanzanian
national
who
suffers
from
Mr. Temu
on
errors,
that
we
the
grant
BIAs
Mr.
opinion
Temus
rests
petition
for
factual
review,
and
legal
vacate
the
I.
The
facts
presented
below
are
based
on
Mr.
Temus
Mr.
with
Temus
mental
diagnosis
illness
and
face
the
in
conditions
Tanzania.
that
The
IJ
Mr.
Temus
troubles
began
during
his
final
year
at
the
He
is
visibly
erratic
and
often
walks
into
busy
to
attention
prevent
of
car
accidents.
Tanzanian
officials
This
who
behavior
took
him
caught
to
the
Muhimbili
abuse.
testified
that
shameful.
In
At
his
asylum
Tanzanians
Tanzanian
hearing,
consider
culture,
an
mental
severe
expert
illness
mental
witness
to
illness
be
with
Tanzanians
even
have
label
for
the
group,
which
means
demon-possessed.
The
expert
witness
though
friends
and
family
visited
Mr.
Temu
during
his
first
nurses
at
Muhimbili
Hospital
treated
Mr.
Temu
with
stints,
and
the
abuse
continued.
Prison
guards
beat
Mr. Temu with a club about his elbows and feet four days per
week.
shows that while binding Mr. Temu and beating him with leather
straps, the nurses said on multiple occasions, this is how we
treat people who are mentally ill like you.
J.A. 135.
In
coming
to
the
United
States,
Mr.
Temu
applied
for
Torture
(CAT).
8
4
U.S.C.
1158(b)(1)(A),
in
the
social
group
of
individuals
with
bipolar
In a
social
visibility
necessary
to
qualify
as
particular
In
doing so, the IJ and BIA found that Mr. Temu was tortured by
nurses and prison guards because he was mentally ill.
Mr.
arguing
Temu
that
filed
it
timely
committed
withholding of removal.
appeal
error
in
of
the
denying
BIAs
him
decision,
asylum
and
II.
Individuals qualify for asylum if they were persecuted on
account
of
. . .
membership
in
particular
social
group.
8 U.S.C. 1101(a)(42)(A). 1
First,
we
must
analyze
whether
Mr.
Temus
proposed
group
of
as
particular
social
group.
Second,
we
ask
See
Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010) (citing
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984)).
However, in reviewing whether a group meets the BIAs definition
of particular social group, we overturn a denial of asylum if
it
is
manifestly
discretion.
contrary
to
the
law
and
an
abuse
of
F.3d
findings
117,
unless
BIAs position.
124126
no
(4th
rational
Cir.
2011).
factfinder
We
could
uphold
agree
factual
with
the
III.
We first consider the BIAs conclusion that Mr. Temu was
not
persecuted
because
of
membership
in
his
proposed
group.
In spite
the
BIAs
finding
on
nexus
contains
two
logical
J.A. 135.
the guards beat all prisoners, but Mr. Temu was singled out for
worse beatings, and other prisoners with mental illness were
beaten as much as Mr. Temu.
J.A. 137.
J.A. 13537.
factfinder
simultaneously
could
these
facts
and
also
conclude that Mr. Temu was not persecuted because of his mental
illness
and
its
manifestations.
7
It
is
difficult
to
imagine
evidence
that
is
more
persuasive
and
unequivocal
than
the
BIAs
loggerheads.
J.A. 135.
nexus
The
finding
BIA
and
adopted
CAT
the
finding
IJs
are
finding
at
that
J.A. 74.
proposed group, the BIA concluded that his beatings were due to
his erratic behavior, not his bipolar disorder per se.
Mere
J.A. 156. 2
factfinder could conclude both that Mr. Temu was not persecuted
because
of
his
membership
in
the
group
of
individuals
with
It
with
instance.
the
power
to
adjudicate
claims
in
the
first
within
irrationality.
paragraphs,
this
is
the
very
essence
of
IV.
We
next
consider
the
BIAs
conclusion
that
Mr.
Temus
formulated
three-part
July
30,
2008).
for
what
constitutes
First,
individuals
in
the
group
must
change.
Id.
omitted).
which
at
58283
(internal
citation
and
quotation
means
the
group
should
generally
Id. at 586.
be
recognizable
by
identifiable
boundaries
that
allow
an
observer
to
Id. at 584.
not
qualify
as
particular
social
group
unless
it
is
without
explanation,
but
in
either
case,
the
BIAs
Further, the
first
consider
the
BIAs
social
visibility
analysis.
a group can
See
as
whether
group
is
understood
by
others
to
of
Falun
Gong
and
hippies
would
likely
be
(Kozinski,
J.,
dissenting).
Thus,
many
groups
have
See In re C-A-, 23
but
The
the
BIA
BIA
never
found
that
applied
while
permissible
Tanzanian
legal
society
might
mistreatment.
exhibit
Id.
erratic
behavior
and
get
targeted
for
The IJs
visibility.
victims
Thus,
if
persecutors
indiscriminately,
this
not
torture
only
wide
suggests
swath
of
lack
of
nexus, but it also suggests that the persecutors did not even
consider any one victims particular social group.
turn, suggests a lack of social visibility.
persecutors
used
erratic
behavior
as
an
This, in
proxy
for
since
these
individuals
hospitals
and
prisons
and
wazimu.
are
are
singled
specifically
out
for
abuse
labeled
in
mwenda
said that this is how we treat people who are mentally ill like
you.
wazimu
as
visibility requires.
Another
group,
and
that
is
all
that
social
formulation
of
the
social
visibility
test
lends
singled
out
for
worse
treatment
than
other
groups.
For
social
visibility
because
informants
are
not
in
61; see also In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 75 (BIA
2007); Ramos-Lopez v. Holder, 563 F.3d 855, 861 (9th Cir. 2009).
In this case, Mr. Temu meets that test easily.
The undisputed
facts show that even though all prisoners were abused, Mr. Temu
was singled out for worse abuse, with the exception of other
prisoners with mental illness, who received the same increased
abuse as Mr. Temu.
This formulation of social visibility also illustrates the
BIAs legal misstep.
population
indiscriminately
visibility.
Id.
particular
social
irrelevant.
can
be
evidence
of
no
social
get
caught
in
the
same
net
is
lacking.
The
folly
of
this
decides
to
massacre
13
legal
conclusion
can
be
Jewish
citizens.
Now,
Jews and
Gentiles alike might be murdered, but this does not change the
fact that Jews have social visibility as a group.
Meanwhile,
under the BIAs reasoning, the fact that persecutors might lump
non-group
members
with
group
members
is,
by
itself,
enough
an
analogy
to
group
that
qualifies
as
BIA or federal case law that kinship ties can serve as the basis
for a particular social group.
question
have
reached
the
same
conclusion.
CrespinYet, under
J.A. 153.
These examples
Similarly,
In sum,
BIA
also
group
because
it
commits
lacks
broke
legal
error
particularity.
down
Mr.
in
concluding
Specifically,
Temus
proposed
the
group
that
BIA
into
pieces and rejected each piece, rather than analyzing his group
15
as a whole.
standard
because
it
rejected
groups
that
Mr.
Temu
never
proposed.
A social group must have identifiable boundaries to meet
the
BIAs
affluent
particularity
Guatemalans
element.
fails
For
example,
because
the
the
group
group
changes
Dec.
at
76.
Affluent
might
include
the
wealthiest
1%
of
Therefore,
this
case,
the
BIA
found
no
particularity
because
At its
Therefore,
the
disorder
covers
too
broad
The other
too,
lacks
particularity.
The
definition
of
erratic
particularity,
the
BIA
concluded
fails.
16
that
the
group
as
whole
The
BIAs
opinion
commits
legal
error
by
splitting
Mr. Temus group in two and rejecting each part, rather than
considering it as a whole.
125.
we
do
not
decidethat
the
group
of
individuals
with
illness
Mr. Temus
that
group
ranges
does
not
from
life-ending
suffer
from
the
to
same
innocuous.
shortcoming,
the
BIA
Erratic
We
doubt
rejects
behavior
that
erratic
is
behavior
difficult
individuals
who
to
as
lacking
define
exhibit
and
erratic
bipolar
disorder.
Unlike
erratic
behavior,
the
term
and
Related
Health
Problems
V(F30)(F39)
(10th
ed.,
J.A. 4.
In turn,
might
not
satisfy
the
particularity
requirement
flowed
from
the
fact
that,
as
the
Government
For example, we
prosecutorial
group.
witnesses
qualifies
Crespin-Valladares
Prosecutorial
might
witnesses
not
might
18
as
particular
social
particular
reach
too
broad
boundaries.
a
swath
of
individuals;
those
who
actively
oppose
gangs
might
be
too
issue with the component parts of Mr. Temus group, but it never
reached the stage of assessing the particularity of Mr. Temus
group
as
whole.
Instead,
it
considered
and
rejected
two
The
INA
requires
that
an
individual
be
persecuted
8 U.S.C.
meet
all
the
criteria
for
particular
social
group.
Time and again, case law from this Court, other circuits, and
the
BIA
has
accepted
social
groups
that,
as
part
of
their
gangs
in
El
Salvador
by
agreeing
to
be
prosecutorial
opposed
to
female
genital
19
mutilation
as
particular
Francisco
Lopez-Sanchez,
2010
Immig.
Rptr.
In re
LEXIS
7882
In fact,
its
that
own
legal
involves
standard
piecemeal
or
advanced
analysis.
new
Either
legal
way,
the
Crespin-
social
and
Mr.
bipolar
bipolar
Temus
must
also
proposed
be
characterized
group
easily
by
satisfies
disorder,
disorder
groups
is
J.A.
154,
immutable.
20
so
there
However,
is
the
no
BIA
doubt
that
found
no
immutability
because
Mr.
Temus
Id.
erratic
behavior
can
be
J.A. 146.
Once
again, the BIAs opinion advances two factual findings that are
impossible to reconcile without violating fundamental rules of
logic.
J.A. 146.
BIAs
Circuit
position
and
by
has
been
the
BIA
explicitly
itself.
rejected
In
by
Kholyavskiy
the
v.
through
medicationmedication
that
the
applicant
The
Id. at 573.
ruling
that
bipolar
disorder
[is]
chronic
31, 2007) (slip op.); In re --, (BIA Nov. 15, 2013) (slip op.)
(finding
regardless
immutability
of
because
bipolar
medication).
These
illness
cases
is
reach
permanent
the
same
when an
did
not
exist.
Further,
the
underlying
bipolar
22
V.
For
the
foregoing
reasons,
we
grant
the
petition
for
review, vacate the BIAs order affirming the IJs decision, and
remand for further consideration consistent with this opinion.
23
Board
interpreted
reviewing
of
Immigration
Appeals
the
Immigration
and
Temus
application
for
(Board)
Nationality
asylum
impermissibly
Act
and
(INA)
in
withholding
of
Specifically, I
conclude that the Board did not err as a matter of law in its
determination
that
Temus
proposed
social
group
lacked
the
I.
As the majority describes, the facts are not in dispute and
the immigration judge (IJ) found the evidence Temu presented
including his own testimony about his treatment in Tanzaniato
be credible.
2002,
Temu
displaying
erratic
behavior
and
was
both
road
and
attempt
to
direct
traffic.
During
his
24
(A.R. 55,
136. 1)
was
taken
to
the
hospital
after
police
observed
him
2006,
remained
in
can
employed
but
he
nevertheless
unlawfully.
Although
he
be
the
United
and
States
function
which
he
identified
as
schizophrenic
and
bipolar
25
satisfied
the
Against Torture.
criteria
for
relief
under
the
Convention
(A.R.
determined
the
INA
requires:
particularity,
immutability,
The Board
26
II.
The Court must uphold the denial of Temus application for
asylum unless the denial is manifestly contrary to the law and
an abuse of discretion.
8 U.S.C. 1252(b)(4)(D).
Whether a
Lin v.
Mukasey,
doing,
517
F.3d
685,
691
(4th
Cir.
2008).
In
so
to the Boards
Id. at 691-92.
Where, as
here, the Board adopts the IJs decision and includes its own
reasons
for
affirming,
the
Court
reviews
both
decisions.
eligibility
withholding
of
removalhe
must
would
Chevron
be
v.
threatened
Natl
Res.
because
Defense
(1984).
27
of
Counsel,
[his]
467
U.S.
837
Gomis v.
Holder, 571 F.3d 353, 359 (4th Cir. 2009) (citing 8 U.S.C.
1231(b)(3)(A);
C.F.R.
208.16(b)(2));
see
also
Camara
v.
The IJ
(2)
that
[has]
particular
and
well-defined
(A.R. 68.)
On appeal, Temu challenges the Boards use of this threepart test in addition to its application of it, asserting that
requiring social visibility is a marked departure from the
Boards long-standing approach to defining a particular social
group and that this Court should not afford this criteria
Chevron deference. The Attorney General responds that Temu has
waived appellate review of the Boards use of the social
visibility criteria because he failed to raise this issue in his
appeal to the Board and thus has not exhaust his administrative
remedies, as required by the INA.
The majority opinion does not address this issue and
proceeds instead directly to the Boards application of the
social visibility criteria.
I would expressly hold that the
Court lacks jurisdiction to consider this aspect of Temus
claim.
The INA expressly requires exhaustion of administrative
remedies, 8 U.S.C. 1252(d)(1), and as such there is no
futility exception to this requirement and it must be strictly
enforced.
See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).
And although this Court alone can resolve the question of
Chevron deference, the Board could have considered anew whether
its
use
of
the
three-part
criteria
was
an
appropriate
interpretation of the INA and cured its purported lack of an
(Continued)
28
Temu
challenges
the
IJ
and
Boards
application
of
the
I conclude
See Zelaya
v. Holder, 668 F.3d 159, 167 (4th Cir. 2012) (affirming the
Boards decision to deny asylum based on conclusion that the
proposed
group
lacks
particularity
without
discussing
the
remaining characteristics)
As its title suggests, a particular social group must
have particular and well-defined boundaries, id. at 166, such
that it is not too amorphous . . . to create a benchmark for
determining group membership, Matter of S-E-G-, 24 I. & N. Dec.
579, 584 (B.I.A. 2008).
Boards
that
determination
Temus
proposed
group
lacks
29
the
majority
opines
that
the
IJ
and
Board
I disagree.
social
group
erratic
behavior
is
lacked
too
particularity
amorphous
to
because
provide
an
the
term
adequate
(A.R. 72.)
It
to
particular
violent
behavior
outbursts.
to
be
Whether
erratic
one
is
perceives
question
a
of
the
IJs
conclusion
(Id.)
that
behavior
is
too
in
rejecting
Temus
argument
that
he
(A.R. 4.)
satisfied
the
(Id.)
If each component of a
the
Board
and
this
Court
have
used
in
the
past.
For
example, in Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011), the
Court
upheld
the
Boards
conclusion
that
Lizamas
proposed
with
particularity.
that
the
criminal
histories
Id. at 442.
component
parts
who
oppose
gangs
lacked
this
group
were
all
amorphous
readily
characteristics.
identify
Id.
a
at
person
447
31
as
(internal
possessing
citation
those
omitted).
[Lizamas]
social
group
into
supbarts,
Id.
and
Far from
Id. at 447-48.
such
and
considering
would
not
whether
have
applied
Lizamas
the
same
proposed
approach
group
in
lacked
particularity.
As another example, in Zelaya v. Holder, 668 F.3d 159 (4th
Cir. 2012), Zelaya asserted that he was eligible for asylum and
withholding of removal based on his membership in the proposed
group of young Honduran males who (1) refuse to join the Mara
Salvatrucha 13 gang (MS-13), (2) have notified the authorities
of
MS-13s
harassment
tactics,
and
Id. at 162.
(3)
have
an
identifiable
32
(Cf.
No adequate benchmark
inherent
this
groups
33
description
that
limits
There is no discernible
714 F.3d 1161, 164 (9th Cir. 2013) (per curiam) (rejecting the
proposed social groups of all insulin-dependent diabetics or
all
insulin-dependent
illnesses
(whether
characteristics
of
diabetics
the
an
group
inability
who
suffer
contained
to
work,
from
the
lack
mental
additional
of
medical
middle
and
low
income
classes,
who
live
in
territories
because
these
characteristics
34
remain
amorphous
[given
that]
peoples
ideas
of
what
those
terms
mean
can
vary).
The majority is correct that the IJ and Board must consider
the scope of the group the petitioner actually proffers.
Maj. Op. at 18.
not
require
criteria
for
proposed
See
that
each
individual
particular
group
considered
particularity requirement.
social
as
trait
must
meet
all
the
group
in
order
for
the
whole
to
satisfy
the
majoritys
reliance
on
Crespin-Valladares
v.
Holder,
632 F.3d 117 (4th Cir. 2011), is, I believe, misplaced because
there
the
petitioners
proposed
group
consisted
in
part
of
Id. at 125.
The
see
also
Valladaress
Zelaya,
holding
668
that
F.3d
the
at
166
(noting
self-limiting
nature
Crespinof
the
Neither
they
considered
Temus
proposed
group
according
to
each
component he urged and found that this proposed group lacked the
requisite particularity.
III.
Because I would uphold the Boards decision with respect to
particularity, it follows that Temus proposed group would fail
to
satisfy
all
the
required
characteristics
of
particular
Temus
Cf.
remaining
arguments.
would
deny
Temus
36