United States v. 2010-07-12 | 06-71652 | PERDOMO V. HOLDER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LESLY YAJAYRA PERDOMO,
Petitioner, No. 06-71652
v. Agency No.
 A077-845-685ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 16, 2009—San Francisco, California
Filed July 12, 2010
Before: Dorothy W. Nelson, William A. Fletcher, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
9923

-- 1 of 13 --

COUNSEL
Alan Hutchison, Reno, Nevada, for petitioner Lesly Yajayra
Perdomo.
Peter D. Keisler, Linda S. Wendtland, John C. Cunningham,
and M. Jocelyn Lopez Wright, Washington, D.C., for respon-
dent Eric H. Holder Jr.
9925 PERDOMO v. HOLDER

-- 2 of 13 --

OPINION
PAEZ, Circuit Judge:
Lesly Yajayra Perdomo (“Perdomo”), a native and citizen
of Guatemala, petitions for review of the Board of Immigra-
tion Appeals’ (“BIA”) affirmance of the immigration judge’s
(“IJ”) order denying asylum, withholding of removal, and
relief under the United Nations Convention Against Torture
(“CAT”). Perdomo sought asylum based on her fear of perse-
cution as a young woman in Guatemala. Specifically, Per-
domo argued that women were murdered at a high rate with
impunity. The IJ denied the application because she found
that young women in Guatemala were not a cognizable social
group. The BIA affirmed, finding that a social group consist-
ing of “all women in Guatemala” is over-broad and “a mere
demographic division of the population rather than a particu-
lar social group.”
Because the BIA’s decision is inconsistent with its own
precedent and this court’s case law, we grant the petition and
remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lesly Yajayra Perdomo is a citizen and native of Guate-
mala. She left Guatemala at age fifteen to join her mother in
the United States in April 1991.1 She entered the United
States without inspection or parole.
Perdomo has lived continuously in the United States since
her entry in 1991, and she is fluent in English and Spanish.
She completed high school in Reno, Nevada, and is currently
1Prior to Perdomo’s entry, her mother filed an application for asylum
based on country conditions in Guatemala and her fear of being killed. She
included Perdomo in her application, which was filed in 1985 and denied
in 1986.
9926 PERDOMO v. HOLDER

-- 3 of 13 --

employed as a Medicaid account executive at a medical facil-
ity in Reno. Perdomo is single, and she has no children. Both
of Perdomo’s parents are deceased, and she no longer has any
close relatives in Guatemala; she currently lives with her step-
father and sister in Reno. Perdomo is actively involved in her
Pentecostal church.
On April 21, 2003, the Immigration and Naturalization Ser-
vice (“INS”)2 issued Perdomo a Notice to Appear, charging
her as removable under Section 212(a)(6)(A)(i) of the Immi-
gration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(A)(i), for having unlawfully entered the United
States. Perdomo conceded removability at her master calendar
hearing on January 28, 2004, and requested asylum, withhold-
ing of removal, and relief under CAT.
She requested asylum because she feared persecution as a
member of a particular social group consisting of women
between the ages of fourteen and forty. Perdomo testified that
her fear was based on the high incidence of murder of women
in Guatemala, and her own status as a Guatemalan woman.
She provided the IJ with several reports by the Guatemala
Human Rights Commission, which is based in the United
States, documenting the torture and killing of women, the bru-
tality of the killings, the non-responsiveness of the Guatema-
lan government to such atrocities, the countrywide prevalence
of the killings, and the lack of explanation for the killings.
Perdomo did not assert that she was the victim of past perse-
cution; rather, she expressed a fear of future persecution if she
were returned to Guatemala. Perdomo also testified that she
would be targeted because she would not be accepted as a
2The Immigration and Naturalization Service, or “INS,” was dissolved
in 2002 by the Homeland Security Act, Pub. L. No. 107-296, § 101(a),
116 Stat. 2135, 2142 (2002). Under the Act, most of the INS’s functions
were transferred to various components of the newly constituted Depart-
ment of Homeland Security (“DHS”), such as the U.S. Citizenship and
Immigration Services. For consistency purposes, we use the term INS.
9927 PERDOMO v. HOLDER

-- 4 of 13 --

native citizen in Guatemala, but would be considered an
American with financial resources due to the number of years
that she has lived in the United States. She further testified
that she may be targeted because of her active involvement in
the Pentecostal church as well as her lack of family and other
personal contacts in Guatemala. Perdomo also testified that
she would not be able to obtain employment in Guatemala
because the secretarial positions listed in Guatemalan newspa-
pers only accept female applicants between the ages of eigh-
teen and twenty-five, and job applications must be submitted
with photographs.
Although the IJ found Perdomo’s testimony to be credible
and truthful, she denied the applications for asylum, withhold-
ing of removal, and relief under CAT. The IJ noted that she
was “sympathetic to the plight of the respondent,” but
declined to make the “finding that women between the ages
of fourteen and forty who are Guatemalan and live in the
United States form a particular social group which would
entitle [Perdomo] to relief.”
On appeal, the BIA agreed with the IJ’s determination that
Perdomo failed to establish a well-founded fear of future per-
secution in Guatemala on account of her membership in a par-
ticular social group. The BIA considered the group of
“women between the ages of fourteen and forty who are Gua-
temalan and live in the United States” to be too broad to qual-
ify as a protected social group. The BIA also rejected
Perdomo’s revised definition of the protected social group —
“all women in Guatemala.” The BIA concluded that this
social group was even broader, and was a demographic rather
than a cognizable social group under the INA. The BIA also
upheld the IJ’s denial of withholding of removal and relief
under CAT, and granted Perdomo sixty days for voluntary
departure.
9928 PERDOMO v. HOLDER

-- 5 of 13 --

II. JURISDICTION
Our jurisdiction to review a final order of removal is gov-
erned by 8 U.S.C. § 1252. We have jurisdiction to review the
denial of an asylum application when a petitioner raises a
question of law, including mixed questions of law and fact.3
Morales v. Gonzales, 478 F.3d 972, 978-80 (9th Cir. 2007).
III. STANDARD OF REVIEW
Whether a group constitutes a “particular social group”
under the INA is a question of law we review de novo.
Hernandez-Montiel v. INS, 225 F.3d 1084, 1091 (9th Cir.
2000).
Where the BIA conducts its own review of the evidence
and law rather than simply adopting the immigration judge’s
decision, as here, our review is limited to the BIA’s decision.
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).
IV. DISCUSSION
A. General Framework
The Attorney General may, in his discretion, grant asylum
to an alien who qualifies as a refugee within the meaning of
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). INA
§ 208(a)-(b)(1)(A), 8 U.S.C. § 1158(a)-(b)(1)(A). An alien
establishes refugee status if she is unable or unwilling to
return to her country of nationality either because of past per-
secution or a well-founded fear of future persecution on
account of her race, religion, nationality, political opinion or
membership in a particular social group. INA
3Petitioner did not challenge the agency’s denial of withholding of
removal and relief under CAT in her petition for review with this court.
Because Petitioner has abandoned those issues, we do not address them
here.
9929 PERDOMO v. HOLDER

-- 6 of 13 --

§ 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A); Karouni v. Gon-
zales, 399 F.3d 1163, 1170 (9th Cir. 2005). The applicant
bears the burden of proving her eligibility for refugee status.
Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995).
B. Women as a Particular Social Group
[1] The INA does not provide a definition for the term
“particular social group.” Hernandez-Montiel, 225 F.3d at
1091. The BIA has interpreted the term to mean a group with
members who “share a common, immutable characteristic”
that “members of the group either cannot change, or should
not be required to change because it is fundamental to their
individual identities or consciences.” Matter of Acosta, 19 I.
& N. Dec. 211, 233 (BIA 1985); In re C-A-, 23 I. & N. Dec.
951, 955-56 (BIA 2006) (quoting the Acosta formulation and
affirming continued adherence to it). The BIA has explained
that “[t]he shared characteristic might be an innate one such
as sex, color, or kinship ties,” which would make the fact of
membership “something comparable to the other four grounds
of persecution under the Act,4 namely, something that is
beyond the power of an individual to change or that is so fun-
damental to his identity or conscience that it ought not be
required to be changed.” In re C-A-, 23 I. & N. Dec. at 955
(quoting Acosta, 19 I. & N. Dec. at 233-34). The BIA also has
clarified that a group must have “social visibility” and ade-
quate “particularity” to constitute a protected social group. In
re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 75-76 (BIA 2007).
The BIA, however, does not “generally require a ‘voluntary
associational relationship,’ ‘cohesiveness,’ or strict ‘homoge-
neity among group members.’ ” Id. at 74.
[2] The BIA has not yet specifically addressed in a prece-
dential decision whether gender by itself could form the basis
of a particular social group. It has, however, recognized as a
4The four other grounds are race, religion, nationality, and political
opinion. See 8 U.S.C. § 1101(a)(42)(A).
9930 PERDOMO v. HOLDER

-- 7 of 13 --

“particular social group” women who belong to a particular
tribe and who oppose female genital mutilation because that
group is defined by characteristics that cannot be changed or
should not be changed. In re Fauziya Kasinga, 21 I. & N.
Dec. 357, 366 (BIA 1996). Whether females in a particular
country, without any other defining characteristics, could con-
stitute a protected social group remains an unresolved ques-
tion for the BIA.
Our case law examining asylum claims based on member-
ship in a particular social group continues to evolve. Initially,
we required a “voluntary associational relationship among the
purported members, which imparts some common character-
istic that is fundamental to their identity as a member of that
discrete social group.” Sanchez-Trujillo v. INS, 801 F.2d
1571, 1576 (9th Cir. 1986). We reasoned that the term “par-
ticular social group” was intended to apply to “cohesive,
homogeneous group[s]” in order to avoid “extending refugee
status to every alien displaced by general conditions of unrest
or violence in his or her home country.” Id. at 1577.
[3] More recently, recognizing that we were the only cir-
cuit to require a “voluntary associational relationship,” and
noting that members of some social groups do not associate
by choice, we developed a two-pronged approach to recogniz-
ing a protected social group. Hernandez-Montiel, 225 F.3d at
1092. In Hernandez-Montiel, we held that “[A] ‘particular
social group’ is one united by a voluntary association, includ-
ing a former association, or by an innate characteristic that is
so fundamental to the identities or consciences of its members
that members either cannot or should not be required to
change it.” Id. at 1093. Applying this definition, the court held
that “gay men with female sexual identities in Mexico” con-
stituted a particular social group. Id. at 1094. In so holding,
we reasoned that “[s]exual orientation and sexual identity are
immutable” and “are so fundamental to one’s identity that a
person should not be required to abandon them.” Id. at 1093.
We further noted that the evidence demonstrated that mem-
9931 PERDOMO v. HOLDER

-- 8 of 13 --

bers of this group were specifically targeted for persecution
“on account of” these characteristics. Id. at 1093-94. We have
also said, consistent with the BIA, that “social visibility” and
“particularity” are factors to consider in determining whether
a group constitutes a “particular social group” under the INA.
Santos-Lemus v. Mukasey, 542 F.3d 738, 744 (9th Cir. 2008).
[4] While we have not held expressly that females, without
other defining characteristics, constitute a particular social
group,5 we have concluded that females, or young girls of a
particular clan, met our definition of a particular social group.
Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005).
In Mohammed, we recognized that gender is an “innate char-
acteristic” that is “fundamental to [one’s] identit[y].” Id. at
797. We noted that the INS’s (now U.S. Citizenship and
Immigration Services’) “ ‘Gender Guidelines,’ which provide
Asylum Officers with guidance on adjudicating women’s
claims of asylum, state that gender is an immutable trait that
can qualify under the rubric of ‘particular social group.’ ” Id.
at 797-98. We also considered the guidelines of the Office of
the United Nations High Commissioner for Refugees, the
United Nations agency responsible for refugee protection
worldwide, which “ma[ke] clear that ‘women may constitute
a particular social group under certain circumstances based on
the common characteristic of sex, whether or not they asso-
ciate with one another based on that shared characteristic.’ ”
Id. at 798. After holding that female genital mutilation consti-
tutes persecution and noting that genital mutilation clearly
occurs on account of being female, we concluded that the
petitioner’s claim that “she was persecuted ‘on account of’
5One of our sister circuits has recognized gender as the basis for a par-
ticular social group, relying on the BIA’s Acosta decision. See Fatin v.
INS, 12 F.3d 1233 (3rd Cir. 1993). We also note that Australia, Canada,
and the United Kingdom have recognized gender as the basis for a particu-
lar social group. See, e.g., Minister for Immigration & Multicultural
Affairs v. Khawar (2002) 76 A.L.J.R. 667; Higbogun v. Canada, [2010]
F.C. 445 (describing Gender Guidelines); Islam v. Sec’y of State for the
Home Dep’t, 2 All E.R. 546 (1999).
9932 PERDOMO v. HOLDER

-- 9 of 13 --

her membership in a social group, whether it be defined as the
social group comprised of Somalian females, or a more nar-
rowly circumscribed group, such as young girls in the
Benadiri clan, not only reflects a plausible construction of our
asylum law, but the only plausible construction.” Id. (empha-
sis added). Thus, we clearly acknowledged that women in a
particular country, regardless of ethnicity or clan membership,
could form a particular social group. The Eighth Circuit has
followed our reasoning in Mohammed, holding that “Somali
females” constitute a particular social group. Hassan v.
Gonzales, 484 F.3d 513, 518 (8th Cir. 2007).
C. The BIA’s Analysis of Perdomo’s Claim
[5] Perdomo argues that women in Guatemala comprise a
“particular social group” at high risk of “femicide,” and that
as a woman she has an objectively well-founded fear of future
persecution in Guatemala.6 The BIA dismissed Perdomo’s
appeal solely on the ground that “all women in Guatemala”
could not constitute a cognizable social group, without reach-
ing the question of whether Perdomo had demonstrated a
nexus between her membership in that group and her fear of
persecution. We therefore consider only whether the BIA
erred in determining that women in Guatemala cannot be a
cognizable social group. See Andia v. Ashcroft, 359 F.3d
1181, 1184 (9th Cir. 2004) (per curiam) (“In reviewing the
decision of the BIA, we consider only the grounds relied upon
by that agency. If we conclude that the BIA’s decision cannot
be sustained upon its reasoning, we must remand to allow the
agency to decide any issues remaining in the case.”); see also
Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (“[T]his
court cannot affirm the BIA on a ground upon which it did not
rely.”).
6As previously noted, before the IJ, Perdomo defined the social group
as “women between the ages of fourteen and forty and who had lived in
the U.S.” In her briefs to the BIA and to this court, Perdomo argued that
she belongs to a protected social group consisting of “all women in Guate-
mala.”
9933 PERDOMO v. HOLDER

-- 10 of 13 --

The BIA reasoned that “all women in Guatemala” is overly
broad and internally diverse, and constitutes “a mere demo-
graphic division . . . rather than a particular social group.” The
BIA relied on our decision in Sanchez-Trujillo in which we
said that a group could not be defined by a “sweeping demo-
graphic division” where its members “naturally manifest a
plethora of different lifestyles, varying interests, diverse cul-
tures, and contrary political leanings.” Sanchez-Trujillo, 801
F.2d at 1576-77. In Sanchez-Trujillo, we ultimately held that
“young, urban, working class males of military age who had
never served in the military or otherwise expressed support
for the government of El Salvador” did not constitute a partic-
ular social group for purposes of asylum. Id. at 1577.
An analysis of whether a particular social group qualifies
for asylum does not end with Sanchez-Trujillo, however.
Under Hernandez-Montiel, which is based in large part on the
BIA’s Acosta decision, an innate characteristic may be the
basis for a protected social group. Indeed, we have focused on
the innate characteristics of such broad and internally diverse
social groups as homosexuals and Gypsies to conclude that
they constituted particular social groups for purposes of asy-
lum. Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir.
2005) (holding that “all alien homosexuals are members of a
‘particular social group’ ”); Mihalev v. Ashcroft, 388 F.3d
722, 726 (9th Cir. 2004) (concluding that “[t]here is no ques-
tion that Gypsies are an identifiable ethnic group and that
being a Gypsy is a protected ground [for asylum]”).
To the extent we have rejected certain social groups as too
broad, we have done so where “[t]here is no unifying relation-
ship or characteristic to narrow th[e] diverse and discon-
nected group.” Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th
Cir. 2005) (emphasis added). In Ochoa, the court determined
that “business owners in Colombia who rejected demands by
narco-traffickers to participate in illegal activity” was too
broad because such a group had neither a voluntary relation-
ship nor an innate characteristic to bond its members. Id. at
9934 PERDOMO v. HOLDER

-- 11 of 13 --

1170-71. Most recently, in Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151-52 (9th Cir. 2010), we noted that the proposed
social group, “returning Mexicans from the United States,”
was similar to the types of large and diverse social groups we
considered in Ochoa and Sanchez-Trujillo, which we con-
cluded were too broad to qualify as cognizable social groups
because they shared neither a voluntary relationship nor an
innate characteristic.7
Additionally, we have rejected the notion that a persecuted
group may simply represent too large a portion of a popula-
tion to allow its members to qualify for asylum. Singh v. INS,
94 F.3d 1353, 1359 (9th Cir. 1996). In Singh, the BIA denied
asylum to an Indo-Fijian man because his past persecution
“arose not out of any of the respondent’s individual circum-
stances but rather was part of and parcel of the general level
of violence . . . directed against Indo-Fijians,” who constituted
half the population of Fiji. Id. at 1356, 1358. On appeal, we
“reject[ed] the notion that an applicant is ineligible for asylum
merely because all members of a persecuted group might be
eligible for asylum.” Id. at 1359. Although the court did not
consider whether Indo-Fijians were a particular social group,
its reasoning supports the principle that the size and breadth
of a group alone does not preclude a group from qualifying
as such a social group.
[6] Because the BIA failed to apply both prongs of the
Hernandez-Montiel definition to Perdomo’s claim that women
7We note, however, that neither the drafting language of the 1951 Con-
vention relating to the Status of Refugees, July 28, 1951, 10 U.S.T. 6259,
189 U.N.T.S. 150, nor the United Nations High Commissioner for Refu-
gees’ (“UNHCR”) Handbook on Procedures and Criteria for Determining
Refugee Status (Geneva 1992) requires that a particular social group be
narrowly defined. See T. Alexander Aleinikoff, Protected Characteristics
and Social Perceptions: An Analysis of the Meaning of ‘Membership of a
Particular Social Group,’ in REFUGEE PROTECTION IN INTERNATIONAL LAW,
UNHCR’s GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION 263,
265-267 (Erika Feller et al. eds., 2003).
9935 PERDOMO v. HOLDER

-- 12 of 13 --

in Guatemala constitute a particular social group, and because
the BIA’s decision is inconsistent with its own opinions in
Matter of Acosta, 19 I. & N. Dec. at 233-34, and In re
C-A-, 23 I. & N. Dec. at 955, we grant Perdomo’s petition for
review. We are mindful that under the ordinary remand rule,
the agency should be given an opportunity in the first instance
to make legal determinations entrusted to it by Congress. See
Gonzales v. Thomas, 547 U.S. 183, 185 (2006). This rule is
particularly applicable here because we have said that
“ ‘[p]articular social group’ . . . is an amorphous term.” See
Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9th Cir. 2009).
We therefore remand for the BIA to determine in the first
instance whether women in Guatemala constitute a particular
social group, and, if so, whether Perdomo has demonstrated
a fear of persecution “on account of” her membership in such
a group. See Thomas, 547 U.S. at 185; see also Negusie v.
Holder, 129 S.Ct. 1159, 1167-68 (2009).
V. CONCLUSION
The petition for review is granted and remanded for further
proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; REMANDED.
9936 PERDOMO v. HOLDER

-- 13 of 13 --