Noemi Caal-Tiul v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 08-2464
NOEMI CAAL-TIUL,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Selya, and Howard,
Circuit Judges.
Lidia M. Sanchez on brief for petitioner.
Katharine E. Clark, Department of Justice, Civil Division,
Office of Immigration Litigation, Tony West, Assistant Attorney
General, Civil Division, and Barry J. Pettinato, Assistant
Director, on brief for respondent.
September 10, 2009

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Per Curiam. Noemi Caal-Tiul petitions this court for
review of the decision of the Board of Immigration Appeals ("BIA")
reversing the Immigration Judge's ("IJ") decision granting asylum
to her. The IJ's ground was that she had established a
well-founded fear of future persecution based upon her membership
in a particular social group (indigenous women). Caal-Tiul argues
that the BIA erroneously applied a de novo standard of review and
that the IJ's determination must be upheld under the "clearly
erroneous" standard of review.
The background events are as follows. In March 2006,
petitioner was charged with being "an alien present in the United
States who has not been admitted or paroled." She admitted to
being a citizen and native of Guatemala and having entered the
United States in December 2005, without a valid immigrant visa or
other approval. She submitted an asylum application and testified
at a hearing before the IJ on May 11, 2007.
Pertinently, as described by the IJ, Caal-Tiul testified
that in March 2005, while she and her children were living in
Montebaun, Guatemala, "a gang . . . began approaching her daughter
and asking her to join them. It is not clear whether there was a
demand made that the daughter join the gang, or whether there was
a demand made that she agree to date one of the members of the
gang. But she was threatened thereafter and harassed."

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Caal-Tiul testified that "[s]he was aware that
individuals from this gang . . . had killed two people in the
basketball court where her daughter spent some time," and that it
was "part of the general practice of the gang in her area, that
they would pressure young girls to join them in order to do bad
acts and join them in doing bad acts." Caal-Tiul testified that
"she did not report this harassment or threats to the police
because they would not be able to do anything about it."
As a result of the threats and harassment from the gang
members, Caal-Tiul "sent her children to the United States in
September 2005." She continued to live at the family home in
Montebaun for a few days, during which time she was approached by
the gang member who had sought to associate with her daughter; he
"told her that her daughter had left, but that she remained, and
that he demanded that she give them money, a fine, as it were, of
$50. She indicated that they used very vulgar words and that she
was afraid."
Caal-Tiul then went to stay with her sister in the small
village of Esplanada, about two hours from Montebaun. She stayed
with her sister for approximately two months. After about one
month, Caal-Tiul received a phone call at her sister's house in
which "words were spoken to the effect that, 'we know where you
are, there are a lot of us, don't try to hide.'" She testified
that "she believes that it was the same gang that had previously

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caused her and her family problems in Montebaun . . . ." Caal-Tiul
decided to leave after receiving that phone call.
The IJ found that Caal-Tiul had "testified candidly and
truthfully;" that Caal-Tiul had "sent her two young children to the
United States [from Guatemala] to reside with their father because
of threats that her daughter, then 12 years old, had received from
gang members in her town;" that her children, who were 13 and 7
when Caal-Tiul entered the United States, became United States
citizens through their father's naturalization; and that Caal-Tiul
took up residence in the city where the children were living with
their father but did not live with the father.
As to persecution, the IJ referred to State Department
Country Reports which reported that among Guatemala's "societal
problems" were "violence against women" and "ethnic
discrimination." The IJ noted that the report also stated that
"'[s]ocietal violence occurred widely throughout the country.'"
Non-state actors, including some with links to gangs, generally
committed the acts but "[t]he reports also suggested that former or
current members of the police condoned or were involved in some of
the attacks or other killings." The IJ also noted evidence from
the Country Report sources and elsewhere that discrimination
existed against indigenous people in the country.
Ultimately the IJ found that Caal-Tiul's fears were
"objectively reasonable, given the atrocious conditions that exist

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in Guatemala, the extent of gang-related violence and the
government's inability to control the gang-related violence;" that
Caal-Tiul was "a member of a class, which is disproportionately
affected by gang violence, which is indigenous women;" and that
Caal-Tiul "is a member of a targeted group, that is, indigenous
women." The IJ also found that "requiring [Caal-Tiul] to remain
in Guatemala, as a dependent upon her family members, unable to
find true safety, unable to have a full and complete life, and to
live apart from her children, is inherently unreasonable."
On review, the BIA disagreed with the IJ's conclusion
that Caal-Tiul had demonstrated a well-founded fear of persecution
on account of a protected ground. Specifically, it found that "the
respondent has simply failed to demonstrate the problems she might
face there are on account of [a] ground protected under the
Immigration and Nationality Act." The BIA explained its reasoning
as follows:
Here it appears the respondent and her
daughter were subjected to criminal acts
carried out by gang members. Although the
Immigration Judge noted that indigenous women
in Guatemala are disproportionately affected
by the criminal gangs in Guatemala, it does
not appear from the record that the problems
the respondent faced, or might face in the
future, were on account of such classification
nor did they argue that such was the case. In
fact, the indigenous status of the respondent
was not mentioned until the Immigration Judge
asked about it at the very end of the hearing.
Rather it appears that the threats and
harassment they received were part of the
ongoing criminal problems and general unrest

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in that country. An asylum applicant's
expression of a fear of harm resulting from
general conditions of violence and civil
unrest in a home country, however compelling,
does not constitute the demonstration of a
well-founded fear of persecution within the
meaning of the Act. While the respondent might
also be arguing that she and her daughter
faced problems on account of their membership
in a particular social group, we note that
since the time of the Immigration Judge's
decision, we have held that "persons resistant
to gang membership" do not constitute a
particular social group. Matter of E-A-G-, 24
I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24
I&N Dec. 579 (BIA 2008). And, to the extent
the Immigration Judge cites the problems with
domestic abuse in Guatemala, with the
exception of the implications this has for the
treatment of women in general, this is not
germane to the case at hand.
Caal-Tiul now seeks review of the BIA decision in this
court and we begin with the standard of review. In September 2002,
new regulations took effect which altered the scope of the BIA's
review of immigration judges' decisions. They provide, in relevant
part, as follows:
(i) The Board will not engage in de novo
review of findings of fact determined by an
immigration judge. Facts determined by the
immigration judge, including findings as to
the credibility of testimony, shall be
reviewed only to determine whether the
findings of the immigration judge are clearly
erroneous.
(ii) The Board may review questions of law,
discretion, and judgment and all other issues
in appeals from decisions of immigration
judges de novo.
8 C.F.R. §1003.1(d)(3).

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INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)("the statute 1
makes [the persecutor's] motive critical"); Sompotan v. Mukasey,
533 F.3d 63, 68 (1st Cir. 2008); In re S-P-, 21 I. & N. Dec. 486,
490 (BIA 1996).
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Central here is the IJ's finding that Caal-Tiul had not
"established a well-founded fear of harm inflicted and threatened
to be inflicted upon her on account of her being an indigenous
female." To the extent this determination concerns petitioner's
credibility and good faith belief, it is a fact finding subject
only to clear error review; but to the extent the concern is
whether the subjective fear is of a kind that fits within the
statutory definition, it is an issue of law or law application
where deference is limited or non-existent. See Rotinsulu v.
Mukasey, 515 F.3d 68, 73 (1st Cir. 2008).
The Board primarily relied on the lack of evidence that
the gang was motivated by Caal-Tiul's status (or that of her
daughter) as an indigenous female, and to this extent review was
arguably only for clear error. But the standard of BIA review
makes no difference because there is no evidence that the gang was
in any way motivated by the status of mother or daughter, either in
making threats to the one or in making the threats to and coercion
of the other. The IJ cited no such evidence and nothing in the 1
record suggests anything more than a gang preying on a girl and
reacting with threats to a parent who sought to interfere.

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The IJ sought to close the gap by evidence that
indigenous females are more likely to be victims of private crime
and violence and less likely to seek or be afforded police
protection; and this would be a fair inference from knowledge of
life even without Country Reports and other information. But some
social, gender, economic or other groupings are almost always more
vulnerable to crime and predation. This does not by itself amount
to persecution--let alone by or with the acquiescence of the state-
-on one of the specific grounds required by the statute. See
Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001).
In this case, affirmance of the BIA is an unattractive,
even though inevitable, result not because of threatened
persecution on a statutory ground but because, as the IJ explained
in closing, it requires Caal-Tiul "to live apart from her children
. . . ." It is not clear that Caal-Tiul is likely to be much less
safe in Guatemala than other women; but it is assuredly an outcome
greatly to be deplored that--having chosen to send her children to
the United States out of harm's way--Caal-Tiul will now be removed
to another country.
The outcome is not only regrettable but probably quite
unusual. The children are United States citizens because their
father has become an American citizen. If he were Caal-Tiul's
husband, ordinarily she would be able to join him under the
customary procedures available to spouses. But in this instance it

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See Reno v. American-Arab Anti-Discrimination Committee, 525 2
U.S. 471, 483-84 (1999); Recommendation from the CIS Ombudsman to
t h e D i r e c t o r , U S C I S , A p r . 6 , 2 0 0 7 ,
http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_32_O_Deferred_
Action 04-06-07.pdf (last visited August 28, 2009).
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appears that Caal-Tiul and the children's father are not married
and that he is in fact married to someone else. So, if her
children remain in the United States and she is removed, she will
be cut off from her children--all because of her efforts to secure
safety for them.
No statutory scheme drafted for the usual case can assure
complete justice in peculiar circumstances. But the United States
Citizenship and Immigration Services ("USCIS") does appear to have
power to defer action when there are compelling humanitarian
considerations. Occasionally injustices in deportation matters 2
have been remedied by private bills in Congress. Whether either of
the these alternatives might work for Caal-Tiul is for her and her
counsel to assess, but a request on humanitarian grounds would be
far from frivolous.
The petition for review is denied.

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