Eldin Jacobo Escobar v. ALBERTO GONZALES, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2999
ELDIN JACOBO ESCOBAR
Petitioner
v.
ALBERTO GONZALES,*
Attorney General of the United States
Respondent
____________
ON REVIEW FROM OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
DATED JUNE 17, 2004
(BIA No. A78 314 957 )
____________
Argued May 4, 2005
Before: MCKEE, VAN ANTWERPEN and WEIS, Circuit Judges.
( Filed July 29, 2005 )
____________
Steven D. Gordon, Esquire (ARGUED)**
HOLLAND & KNIGHT LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, D.C. 20006
Attorneys for Petitioner-Appellant
John C. Cunningham, Esquire (ARGUED)
Senior Litigation Counsel
Peter D. Keisler, Esquire
____________________
* Substituted pursuant to Fed. R. App. Pro. 43c.
** We acknowledge our appreciation for the excellent briefing and oral
argument presented by the petitioner’s counsel acting pro bono in the

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highest tradition of the profession.
Assistant Attorney General
Civil Division
Linda S. Wendtland, Esquire
Assistant Director
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent-Appellee
_______________
OPINION
WEIS, Circuit Judge.
The issue in this appeal is whether, under the
Immigration and Nationality Act, Honduran “street children”
constitute a “particular social group” whose members can seek
asylum and withholding of removal based on their persecution or
a well-founded fear of persecution in their home country. See 8
U.S.C. §§ 1101(a)(42)(A), 1158(a), 1231(B)(3). We conclude that
Honduran street children are not a particular social group within
the terms of the Act and therefore we will deny the Petition for
Review of the Board of Immigration Appeals.
Petitioner, Eldin Jacobo Escobar, is a native of
Honduras. Escobar’s parents abandoned him at an early age, and
he was forced to share a small house with his maternal
grandparents and other relatives in the Department of Olancho.
The group lived under crude conditions, lacking a bathroom, heat
and beds. While he was living with his extended family, Escobar’s
grandfather and uncles physically abused him.
When he was approximately nine years old, Escobar
ran away and began living on the streets of Honduran cities and
villages. He earned tips doing various jobs including shining shoes
and selling fruit or clothing. He slept in many different places and
often went shoeless in tattered clothing.

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Escobar’s mother had Temporary Protected Status in the United States.1
Honduras has been designated as a “special circumstances” country whose nationals are
able to remain in the United States as a result of the damage that country suffered
following Hurricane Mitch. Unlike his mother, petitioner is not eligible for Temporary
Protected Status because it is only available to those Honduran nationals who have
resided in the United States continuously since December 30, 1998. See 69 Fed. Reg.
64,087.
In addition to enduring the general tribulations of
street living, Escobar asserts that members of various Honduran
street gangs stole from him, threatened him with violence and
physically abused him. He alleges that he observed similar attacks,
some of which were fatal, on other street children. Gang members
told Escobar to rob and steal for and with them, and repeatedly
pressured him to join their gangs.
Escobar contends that the Honduran police failed to
offer protection to street children. He testified that, like gang
members, the police officers pressured him to steal on their behalf,
and threatened him if he refused.
After enduring harsh treatment on the streets of
Honduras, Escobar fled to Mexico and lived on the streets there.
He eventually contacted his mother who was living in the United
States and met her in Tijuana .1
When Escobar’s mother brought him into the United
States in October 2001, he was thirteen years old. He was not
inspected or admitted by an immigration officer at his point of
entry. The record of Escobar’s activity in this country is sparse, but
he eventually lived in Texas with a relative until he was taken into
custody by the former INS in March 2003.
After a hearing on Escobar’s claims for asylum and
withholding of removal, an Immigration Judge issued a decision in
January 2004. The IJ concluded Escobar’s claims for asylum and
withholding of removal were based on membership in a cognizable
social group comprised of “abandoned street children in Honduras
who are targets of systemic violence generated by government
officers and non-governmental groups and from which the
Honduran government has provided grossly inadequate protection.”
However, the IJ denied Escobar’s claims for lack of credibility.

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The Board of Immigration Appeals held that, even if
Escobar testified credibly, “Honduran street children” did not
constitute a “particular social group for purposes of asylum and
withholding of removal.” On appeal to this Court, Escobar
challenges the BIA’s decision, contending that homeless Honduran
street children constitute a “particular social group.” W e ha v e
jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.
2001). We review legal determinations by the BIA de novo. Wang
v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).
I.
The Immigration and Naturalization Act provides
that certain aliens are eligible for asylum if they are refugees as that
term is defined in 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158. A
refugee is a person who is unable or unwilling to return to his or
her home country because of a well-founded “fear of persecution
on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
Withholding of removal is similarly reserved for aliens whose life
or freedom would be threatened in their home country because of
“race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231.
The phrase “particular social group” was
incorporated into the INA when Congress enacted the Refugee Act
of 1980. As we observed in Fatin v. INS, 12 F.3d 1233 (3d Cir.
1993), “Congress intended ‘to bring United States refugee law into
conformance with the 1967 United Nations Protocol Relating to the
Status of Refugees to which the United States acceded in 1968.’”
Id. at 1239 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 436-
37(1987)) (citation omitted).
The Protocol defined “refugee” using the terms “race,
religion, nationality, membership of a particular social group or
political opinion.” Fatin, 12 F.3d at 1239. The phrase
“membership of a particular social group” received no significant
elaboration in the Protocol beyond a notation that “experience had
shown that certain refugees had been persecuted because they
belonged to particular social groups.” Id.
The statutory language standing alone is not
instructive and read literally “is almost completely open-ended.” Id.

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Although the scant legislative and Protocol history provides little
information about the underlying reasons for the inclusion of the
phrase “particular social group” in the INA’s definition of a
refugee, one other source is available – the INS interpretation. As
the Supreme Court observed in INS v. Abudu, 485 U.S. 94, 110
(1998):
“INS officials must exercise especially sensitive political
functions that implicate questions of foreign relations,
and therefore the reasons for giving deference to agency
decisions ... in other administrative contexts apply with
even greater force in the INS context.”
The Court again recognized that policy in INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999), pointing out that the judiciary is “not well
positioned to shoulder primary responsibility for assessing the
likelihood and importance” of diplomatic repercussions.
In Fatin, we looked to the BIA’s interpretation of
“particular social group” in Matter of Acosta, 19 I. & N. Dec. 211
(1985), overruled on other grounds, In re: Mogharrahi, 191 I. & N.
Dec. 211, 1985 WL 56042 (BIA 1985). Fatin, 12 F.3d at 1239-40.
The BIA reasoned that a particular social group refers to “a group
of persons all of whom share a common, immutable characteristic.”
Acosta, 19 I. & N. at 233. Further, the Board commented:
“The shared characteristic might be an innate one such as
sex, color, or kinship ties, or in some circumstances it
might be a shared past experience such as former military
leadership or land ownership. The particular kind of
group characteristic that will qualify under this
construction remains to be determined on a case-by-case
basis. However, whatever the common characteristic
that defines the group, it must be one that the members of
the group either cannot change, or should not be required
to change because it is fundamental to their individual
identities or consciences.”
Id.
Fatin concluded that the Board’s construction of
“particular social group” in Acosta was reasonable and adopted it.
Applying that construction, we concluded that the alien’s particular

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The “Lord’s Resistance Army,” an anti-government group in Uganda that2
employs murder, rape and kidnaping in pursuit of its aims.
social group “consisted of Iranian women who [found] their
country’s gender-specific laws offensive and [did] not wish to
comply with them.” Fatin, 12 F.3d at 1241. However, because the
alien failed to establish persecution, relief was properly denied. Id.
at 1243.
The difficulty of discerning the contours of particular
social groups was an issue in Lukwago v. Ashcroft, 9 F.3d 157 (3d
Cir. 2003). There we observed that the Courts of Appeals of the
First and Seventh Circuits had also adopted the Acosta formula.
Lukwago, 9 F.3d at 171. The Sixth Circuit has as well. Castellano-
Chacon v. INS, 341 F.3d 533 (6th Cir. 2003). The Second and
Ninth Circuits use variations of the definition. See Gomez v. INS,
947 F.2d 660, 664 (2d Cir. 1991); Sanchez-Trujillo v. INS, 801 F.2d
1571, 1576 (9th Cir. 1986).
Lukwago refused to accept “children” as a particular
social group representing as it does an “extremely large and
diverse” group. 329 F.3d at 172. We did, however, decide that
“membership in the group of former child soldiers who have
escaped LRA captivity fits precisely within the BIA’s own2
recognition that a shared past experience may be enough to link
members of a ‘particular social group.’” Id. at 178.
In interpreting such an amorphous phrase as
“particular social group,” it is somewhat helpful to review
representative rulings by other forums on that subject. Courts have
excluded from the classification: young, urban El Salvadoran males
of military age who had not served in the military, Sanchez-Trujillo
v. INS, 801 F.3d 1271 (9th Cir. 1986); youths with gang
identification tattoos, Castellano-Chacon v. INS, 341 F.3d 533 (6th
Cir. 2003); voluntary members in a taxi cab cooperative that refused
to yield to guerrillas, Matter of Acosta, 19 I. & N. Dec. 211 (1985);
and adult women raped and brutalized as children in El Salvador,
Gomez v. INS, 947 F.2d 660 (2nd Cir. 1991).
Courts have recognized the following social groups:
a family targeted for harassment and violence because they were
related to an allegedly racist boss in South Africa, Thomas v.
Gonzales, 409 F.3d 1177 (9 Cir. 2005); children with “disabilitiesth

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that are serious and long-lasting or permanent in nature and parents
who care for them,” Tchoukhrova v. Gonzales, 2005 WL 913449
(9 Cir. 2005); Somali women under threat of genital mutilation,th
Mohommed v. Gonzazles, 400 F.3d 785 (9th Cir. 2005); a familial
sub-clan in Somalia, In Re: H- Applicant, 21 I. & N. Dec. 337
(1996); and former members of El Salvador’s national police,
Matter of Fuentes, 19 I. & N. Dec. 658 (1988).
These cases from other forums lead to the conclusion
that membership in a “particular social group” can be attributed to
either: (1) those who possess immutable characteristics such as race,
gender or a prior position, status or condition; or (2) those who
possess a characteristic that is capable of being changed but is of
such fundamental importance that individuals should not be
required to modify it, e.g., religion.
In Fatin we considered the latter type of group
classification. We indicated that the particular social group might
be defined as women who refused to comply with Iranian gender-
specific laws to the extent that they would suffer severe sanctions
for their noncompliance. Fatin, 12 F.3d 1241. In that situation, the
characteristic of the group would be that the members’ beliefs were
so fundamental that they ought not be required to change them.
As we pointed out in Lukwago, the social group must
exist as such and the persecution must be on account of a protected
ground, but the persecution cannot be what defines the contours of
the group. Lukwago, 329 F.3d at 172. Past persecution of itself
does not define the group. Nor is youth alone a sufficient
permanent characteristic, disappearing as it does with age. Id.
Here we are confronted with a situation in which there
are three main elements of Escobar’s claimed social group: poverty,
homelessness and youth. It may well be conceded that young
individuals from Honduras face extremely depressing, bleak
prospects. But the record fails to show any realistic differences
between these children and those of Guatemala or Sao Paulo or
hundreds of other locations across the globe. Incidents of
deprivation and suffering are, unfortunately, universal and not
confined to one country. Thus a legitimate distinction cannot be
made between groups of impoverished children who exist in almost
every country.
Some governments may devote more of their assets to

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The 2002 country report, as well as more recent country reports on3
Honduras, may be found at http:\\www.state.gov\g\drl\rls\hrrpt\2004\41765.htm.
alleviate the conditions of street children, but the record does not
contain evidence to support a finding that Honduras is significantly
more derelict than others in the developing world. Testimony at the
hearing before the IJ in this case established the insufficiency of
resources to aid the street children in Honduras. The country
reports prepared by the U.S. Department of State document the
adverse living conditions Honduran street children must endure. 3
As we commented in Fatin, the phrase “particular
social group” is almost completely open-ended. Fatin, 12 F.3d at
1238. That appraisal applies to the particular group Escobar claims
here. Poverty, homelessness and youth are far too vague and all
encompassing to be characteristics that set the perimeters for a
protected group within the scope of the Immigration and
Naturalization Act. The lack of an outer limit counsels against a
designation that would appear to be contrary to congressional intent.
The situation indeed is one appealing to sympathy and
compassion, but in construing the Refugee Act of 1980, we are
limited by both the traditional deference owed to Congress and the
executive branch in matters of immigration.
Unlike procedural due process in immigration
proceedings, an area in which the Courts may assert some expertise,
the choice of those aliens who shall be permitted to enter or remain
in the country is a matter of policy within the special competence of
the legislative and executive branches. An illustration of the
flexibility and delicate balancing necessary for those determinations
is presented in this case where certain Honduran nationals were
granted temporary protected status in this country because of the
ravages of Hurricane Mitch.
We will deny the Petition for Review.

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