4 5 August Term, 2006 6 7 8 Submitted: March 2, 2007 Decided: November 21, 2007 9 10… v. 5 Gonzales, 464 F.3d 163, 172 2d Cir. 2006 amending 448 6 F.3d 180 2d Cir. 2006 .…

* 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.
04-4184-ag(L), 04-4185-ag (CON)
Ucelo-Gomez v. Mukasey
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2006 6
7
8
(Submitted: March 2, 2007) (Decided: November 21, 2007) 9
10
Docket Nos. 04-4184-ag(L), 04-4185-ag(CON) 11
12
- - - - - - - - - - - - - - - - - - - -x 13
14
JOSE GODOFREDO UCELO-GOMEZ and 15
ANA MARIELA ESPANA-ESPINOZA, 16
17
Petitioners, 18
19
- v.- 20
21
MICHAEL B. MUKASEY, Attorney General, *
22
23
Respondent. 24
25
- - - - - - - - - - - - - - - - - - - -x 26
27
Before: JACOBS, Chief Judge, WALKER and WALLACE, 28
Circuit Judges.**
29
30
This reviews a decision of the Board of Immigration 31
Appeals on limited remand of a petition for review from an 32

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2
order of the Board of Immigration Appeals summarily 1
affirming an Immigration Judge’s denial of petitioners’ 2
applications for asylum and withholding of removal. 3
Upon further consideration, the petition is denied. 4
5
Roberto Tschudin Lucheme, 6
Glastonbury, Connecticut, for 7
Petitioners. 8
9
Francis W. Fraser, Margaret 10
Perry, Office of Immigration 11
Litigation, Civil Division, 12
United States Department of 13
Justice, Washington, D.C., for 14
Respondent. 15
16
PER CURIAM: 17
18
Petitioners Jose Godofredo Ucelo-Gomez and Ana Mariela 19
Espana-Espinosa (husband and wife), citizens of Guatemala, 20
originally challenged a summary affirmance by the Board of 21
Immigration Appeals (“BIA”) of the oral decision of an 22
immigration judge (“IJ”) that (1) denied their applications 23
for asylum and withholding of removal under the Immigration 24
and Naturalization Act (“INA”) and their applications for 25
protection under the Convention Against Torture (“CAT”), and 26
(2) directed their removal to Guatemala. Their asylum claim 27
was premised on their membership in a social group composed 28
of affluent Guatemalans who suffer persecution fueled by 29
class rivalry in an impoverished society. This Court 30

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3
vacated the BIA’s order and remanded the case to the BIA by 1
published opinion on May 9, 2006, so the BIA could determine 2
in the first instance whether affluent Guatemalans in the 3
petitioners’ situation constitute a “particular social 4
group” within the meaning of the INA. See Ucelo-Gomez v. 5
Gonzales, 464 F.3d 163, 172 (2d Cir. 2006) (amending 448 6
F.3d 180 (2d Cir. 2006)). The BIA was given 49 days to 7
issue a responsive opinion; but the mandate of this Court 8
was placed on hold on May 12, 2006. On June 19, 2006-- 9
before the end of the 49 day period but while the mandate 10
was still on hold--the BIA issued a non-precedential 11
opinion, affirming the IJ’s decision on the grounds that 12
petitioners had not shown that “affluent Guatemalans” are 13
members of a particular social group and that they did not 14
demonstrate they were persecuted or faced a well-founded 15
fear of future persecution on account of a protected ground. 16
See In re Espana-Espinoza & Ucelo-Gomez, A 79 781 430, A 79 17
781 419 (B.I.A. June 19, 2006). In an amended opinion 18
issued nunc pro tunc and filed on September 28, 2006, this 19
Court clarified that its original remand was pursuant to 20
United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994), 21
and that the panel thus retained jurisdiction to rule upon 22

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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
the petition on appeal following disposition of the remand. 1
On October 2, 2006 the hold was lifted and the following day 2
the mandate issued. The BIA later issued an identical 3
precedential opinion, see In re A-M-E- & J-G-U-, 24 I. & N. 4
Dec. 69 (B.I.A. Jan. 31, 2007), publishing as precedent In 5
re Espana-Espinoza & Ucelo-Gomez, A 79 781 430, A 79 781 419 6
(B.I.A. June 19, 2006). 3
7
The BIA has fulfilled the terms of our remand by 8
rendering a timely opinion as to whether affluent 9
Guatemalans constitute a particular social group for asylum 10
purposes. We retained jurisdiction to decide the issues set 11
forth by the petition, and upon further consideration in 12
light of the BIA’s opinion, we now deny the petition. 13
14
BACKGROUND 15
The facts underlying Mr. Ucelo-Gomez’s and Ms. Espana- 16
Espinosa’s petitions for review are set forth in detail in 17
our previous opinion, see Ucelo-Gomez, 464 F.3d at 165-66, 18
and the reader’s familiarity with it is assumed. 19

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5
1
DISCUSSION 2
I 3
“When the BIA issues an opinion, ‘the opinion becomes 4
the basis for judicial review of the decision of which the 5
alien is complaining.’” Chen v. Gonzales, 417 F.3d 268, 271 6
(2d Cir. 2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655 7
(7th Cir. 2004)). As we stated in our opinion remanding the 8
case, we grant Chevron deference to a precedential opinion 9
of the BIA if the basic requirements of Chevron are met. 10
See Ucelo-Gomez, 464 F.3d at 170; see also Shi Liang Lin v. 11
U.S. Dep’t of Justice, 494 F.3d 296, 304 (2d Cir. 2007) (en 12
banc) (“When reviewing the BIA’s interpretation of statutes 13
that it administers, we apply the Chevron principles.”). 14
“Under the Chevron standard, we adhere to Congress’ purpose 15
where the INA clearly speaks to the point in question, but 16
if the INA is silent or ambiguous, then we must defer to any 17
reasonable interpretation of the statute adopted by the 18
Board as the entity charged by Congress with the statute’s 19
enforcement.” Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir. 20
2001) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 21
(1999)). Here, after the BIA issued a non-precedential 22

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6
decision, the agency subsequently had occasion to issue an 1
identical precedential opinion construing the ambiguous 2
statutory phrase “particular social group.” We therefore 3
inquire whether the BIA’s construction was a reasonable 4
interpretation of the statute. 5
6
II 7
In its precedential opinion, the BIA determined that 8
“affluent Guatemalans” are not a “particular social group” 9
for asylum eligibility purposes. Referring to the seminal 10
decision of In re Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), 11
the BIA explained that members of a particular social group 12
must share some common characteristic that members “either 13
cannot change, or should not be required to change because 14
it is fundamental to their individual identities or 15
consciences.” A-M-E-, 24 I. & N. Dec. at 74 (internal 16
quotation marks omitted). The BIA went on to consider two 17
factors identified in In re C-A-, 23 I. & N. Dec. 951 18
(B.I.A. 2006): (1) membership in a purported social group 19
requires a certain level of “social visibility” and (2) the 20
definition of the social group must have particular and 21
well-defined boundaries. A-M-E-, 24 I. & N. Dec. at 74. 22

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7
The BIA’s rulings on these points constitute sufficient--and 1
affirmable--holdings. 2
1. Social Visibility. In re C-A-’s social visibility 3
requirement is consistent with this Court’s reasoning that a 4
“particular social group is comprised of individuals who 5
possess some fundamental characteristic in common which 6
serves to distinguish them in the eyes of a persecutor--or 7
in the eyes of the outside world in general.” Gomez v. INS, 8
947 F.2d 660, 664 (2d Cir. 1991). The BIA’s decision relied 9
heavily upon In re C-A-’s discussion of recent UN Guidelines 10
that indicate that “persecutory action toward a group may be 11
a relevant factor in determining the visibility of a group 12
in a particular society.” 23 I. & N. Dec. at 960 (emphasis 13
omitted). However (as the BIA stated), although the 14
existence of persecution is a relevant factor, “a social 15
group cannot be defined exclusively by the fact that its 16
members have been subjected to harm . . . .” A-M-E-, 24 I. 17
& N. Dec. at 74 (emphasis added). Applying these 18
principles, the BIA considered whether affluent Guatemalans 19
are more frequently targeted by criminals than the rest of 20
the Guatemalan population. The BIA concluded that they are 21
not: “[V]iolence and crime in Guatemala appear to be 22
pervasive at all socio-economic levels.” A-M-E-, 24 I. & N. 23

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8
Dec. at 74-75. Moreover, it matters that the petitioners’ 1
self-definition as a social group for asylum purposes 2
depends on no disadvantage other than purported visibility 3
to criminals. When the harm visited upon members of a group 4
is attributable to the incentives presented to ordinary 5
criminals rather than to persecution, the scales are tipped 6
away from considering those people a “particular social 7
group” within the meaning of the INA. 8
2. Well-Defined Boundaries. The BIA reasoned that the 9
terms “wealthy” and “affluent” are highly relative and 10
subjective. Id. at 76. As the BIA explained, “wealth or 11
affluence is simply too subjective, inchoate, and variable 12
to provide the sole basis for membership in a particular 13
social group.” Id. If “wealth” defined the boundaries of a 14
particular social group, a determination about whether any 15
petitioner fit into the group (or might be perceived as a 16
member of the group) would necessitate a sociological 17
analysis as to how persons with various assets would have 18
been viewed by others in their country. The BIA also noted 19
that if one defined “affluent” to include all of those 20
Guatemalans who did not live in poverty, the group would 21
make up twenty percent of the population. A-M-E-, 24 I. & 22

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4 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
N. at 76 & n.8. 4 Moreover, because money attracts thieves 1
in the ordinary course, and more money attracts more and 2
better thieves, it would be impractical for IJs to 3
distinguish between petitioners who are targeted or held to 4
ransom because of their class status or merely because 5
that’s where the money is. 6
The BIA’s analysis is consistent with existing BIA 7
precedent holding that harm motivated purely by wealth is 8
not persecution. See In re V-T-S-, 21 I. & N. Dec. 792, 9
798-99 (B.I.A. 1997), cited by A-M-E-, 24 I. & N. at 72. 10
Our own precedent validates the idea that class status does 11
not establish a social group with sufficient particularity. 12
See Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 240 (2d 13
Cir. 1992) (holding that “poor” Yemeni Muslims are not a 14
particular social group because the group “posses[es] 15
broadly-based characteristics”). The BIA’s interpretation 16

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10
of the statutory phrase “particular social group” as 1
excluding affluent Guatemalans was therefore reasonable. 2
3
III 4
The petitioners argued in their brief to the BIA on 5
remand that “their political beliefs are imputed to them by 6
virtue of their wealth[,] i.e. they must support the status 7
quo as it protects the wealth they have accumulated.” Pet’r 8
BIA Br. 4. But the petitioners cited no evidence in the 9
record that supports this assertion. As the BIA correctly 10
concluded, nothing indicated that the individual or 11
individuals who threatened petitioners “had any motive other 12
than increasing their own wealth at the expense of” the 13
petitioners. A-M-E-, 24 I. & N. at 76. It was therefore 14
correct for the BIA to hold that the petitioners failed to 15
meet their burden of proof in showing any evidence of a 16
motivation for persecution other than membership in a 17
particular social group. 18
19
20
21
CONCLUSION 22

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11
For the foregoing reasons, we deny the petition for 1
review. 2

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