                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-13-2006

Hong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3000




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Hong v. Atty Gen USA" (2006). 2006 Decisions. Paper 1596.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1596


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                            IN THE UNITED STATES COURT
                                     OF APPEALS
                                FOR THE THIRD CIRCUIT


                                       NO. 04-3000


                                      HONG HONG,
                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES;
                   DEPARTMENT OF HOMELAND SECURITY,
                              Respondents




                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                   No. A76-280-678
                     Immigration Judge: Hon. Rosalind K. Malloy


                                Argued December 12, 2005

                  BEFORE: SLOVITER, SMITH and STAPLETON,
                               Circuit Judges

                             (Opinion Filed February 13, 2006)




Mark T. Knapp (Argued)
Abigail D. Flynn-Kozara
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
 Attorneys for Petitioner
Peter D. Keisler
Donald E. Keene
Douglas E. Ginsburg
Lyle D.Jentzer
Alison R. Drucker (Argued)
United States Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878 - Ben Franklin Station
Washington, DC 20044
 Attorneys for Respondent




                              OPINION OF THE COURT




STAPLETON, Circuit Judge:


      Petitioner Hong Hong (“Hong”) is a native and citizen of the People’s Republic of

China. He petitions for review of a Board of Immigration Appeals (“BIA”) decision

denying his asylum, withholding of removal, and relief under the United Nations

Convention Against Torture Act.

      According to the Western Calendar, Hong was 15 years old when he illegally

emigrated from China. He testified that he left China because his family was destitute,

and he wanted a better education and a better life in America. To enable him to reach the

United States, his mother contacted a member of a criminal smuggling organization – the

“Snakeheads” – and arranged passage on a boat to Guam. The boat left China in mid-



                                            2
April of 1999, carrying 150 individuals of which approximately a dozen were, like Hong,

children. After a journey of approximately 13 days, the boat was stopped at the border of

Guam by U.S. authorities.

       Hong testified that after the boat was stopped he cooperated with U.S. officials in

identifying those involved in smuggling him into the country. Hong was told that he

would be a witness for the government. In September of 1999, Hong was reinterviewed

by U.S. investigators and learned that the smugglers had pled guilty.

       Hong was among several aliens captured on the boat who offered testimony

regarding the smugglers. Frederick Black, the U.S. Attorney for the District of the

Northern Marina Islands, has stated that the testimony of Hong and others was “critical”

to the United States’s case:

       [T]he five Material Witness were the key percipient witnesses that the
       United States intended to call if the case went to trial. Their statements to
       the [INS authorities], and their willingness to testify at trial, were the
       primary reason that all four defendants in this matter were convicted and
       sentenced.

App. at 145.

       The essence of Hong’s claim is that he fears returning to China because the

Snakeheads are looking for him. At his immigration hearing, Hong supported that claim

by attempting to submit a letter from his mother to an uncle in the United States in which

she describes how the Snakeheads had visited her trying to ascertain Hong’s whereabouts.

                                              I.



                                              3
       The IJ found Hong to be a “quite credible” witness based on his testimony about

his reasons for leaving China and his fear of the Snakeheads. The IJ also found

“sufficient information” in the record to support the conclusions:

       that the Snakeheads are indeed a powerful criminal gang operating
       internationally, that they are capable of bribing and corrupting officials in
       [the] People’s Republic of China, as well as officials in other countries. . . .
       [Respondent’s subjective fear of the Snakeheads] is based on objective, if
       there is an objective basis because . . . these Snakeheads have contacts, have
       influence, and the government of China cannot control their activities. . . .
       the Court believes that there is an objective basis to the respondent’s fear of
       returning [to China].

App. at 22-23. The IJ dismissed Hong’s claim to asylum based on “past persecution” and

rejected the idea that Hong’s asylum claim could rest on his political opinion, but she did

find that he could qualify on one of the statutory grounds for asylum based on a fear of

future persecution:

       In trying to determine what’s the basis for an asylum grant will be in this
       case and looking at the five grounds for asylum, the Court only placed the
       respondent in the category of membership in a particular social group.
       Now, this would be stretching the definition of that particular category. But
       since the Court has no, there are no precedent decisions regarding juveniles
       and applying for asylum, at least that this Court is aware of, here we have a
       juvenile who informed on a criminal gang.

App. at 21. Finding that Hong was likely to be detained if he returned to China and

accessible in that detention to Snakehead representatives, the IJ granted Hong asylum.

She denied Hong’s petitions for withholding of removal and protection under the




                                              4
Convention Against Torture Act.1

       The BIA reversed the IJ’s grant of asylum. Its explanation was as follows:

               In order to establish eligibility for asylum, the respondent must
       establish a well-founded fear of persecution on account of his race, religion,
       nationality, membership in a particular social group, or his political opinion.
       The Immigration Judge found the respondent established that his fear was
       based on his membership in a particular social group, juvenile informants
       against international alien smuggling rings. We disagree. Membership in a
       particular social group means membership in a group of people all of whom
       share a common, immutable characteristic, that is, a characteristic that is
       either beyond the power of the individual members to change or that is so
       fundamental to their identities or consciences that it should not be required
       to be changed.

               The respondent’s argument that the alien smugglers will harm him
       because of his status as a member of a particular social group of juvenile
       informants lacks merit. If an alien smuggling ring seeks to harm the
       respondent, it is not on account of his membership in a particular social
       group, but rather for retribution for his actions in testifying against four
       smugglers. However, aliens fearing retribution over personal matters do not
       qualify for asylum under one the protected grounds. There is no evidence
       in the record that the over 50 smuggling rings attempt to harm all informers
       or witnesses, or just those which harmed their particular enterprise. Thus,
       the respondent has failed to show that as an informer, he shares a
       “common” characteristic with other informers or witnesses, in that it
       appears that his actions only harmed a particular smuggling ring. This ring,
       or the associates of the four smugglers convicted, would have no motivation
       to seek retribution on other informers, since each act of whistleblowing or
       testimony is unique circumstance that affects, at most, one ring. Further,
       the respondent does not offer any evidence that other juvenile informers of
       this particular smuggling ring, or any ring, exist or fear reprisals. Since the
       motivation for any harm towards the respondent appears to be the result of
       his personal actions, not his group membership, he failed to establish a
       nexus to a particular social or any other protected ground.

   1
   The BIA noted that Hong did not appeal the IJ’s decisions regarding withholding of
removal and protection under the Convention Against Torture Act, and Hong does not
question the BIA’s refusal to consider these issues in his appeal to this Court.

                                             5
App. at 3-4 (citations omitted). We do not read the BIA’s opinion as rejecting any of the

facts found by the IJ.

                                              II.

       In order to be eligible for asylum, an alien must establish that he is a “refugee”

under 8 U.S.C. § 1101(a)(42)(A). Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001).

A “refugee” is:

       any person who is outside any country of such person’s nationality . . . and
       who is unable or unwilling to return to, and is unable or unwilling to avail
       himself or herself of the protection of, that country because of persecution
       or 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)(A).

       The only statutory term in contention here is “membership in a particular social

group.” This statutory language itself is “not very instructive”:

       Read in its broadest literal sense, the phrase is almost completely open-
       ended. Virtually any set including more than one person could be described
       as a “particular social group.”

Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993). There is no helpful evidence of

legislative intent and “[b]oth courts and commentators have struggled to define” the

phrase. Id. at 1238-39. Thus, the “contours of what constitutes a ‘particular social group’

are difficult to discern.” Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003). See also

3 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and

Procedure § 33.04(2)(d)(i) (rev. ed. 2005) (“Its scope has been debated, thus far



                                              6
inconclusively . . . . A clearer picture doubtless will be developed in case-by-case

litigation.”).

       The principal decision in which the BIA has attempted to define “particular social

group” is Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), a decision on which

we have had repeated occasion to rely. See, e.g., Fatin, 12 F.3d at 1239; Lukwago, 329

F.2d at 171. See also Gordon, Mailman & Yale-Loehr, supra at § 33.04(2)(d)(i). In

Matter of Acosta, the BIA declared:

       [W]e interpret the phrase “persecution on account of membership in a
       particular social group” to mean persecution that is directed toward an
       individual who is a member of a group of persons all of whom share a
       common, immutable characteristic. 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. Only when this is the case does the mere fact of
       group membership become something comparable to the other four grounds
       of persecution under the Act, namely, something that either is beyond the
       power of an individual to change or that is so fundamental to his identity or
       conscience that it ought not be required to be changed. By construing
       “persecution on account of membership in a particular social group” in this
       manner, we preserve the concept that refuge is restricted to individuals who
       are either unable by their own actions, or as a matter of conscience should
       not be required, to avoid persecution.

Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985) overruled in part by INS v.

Cardoza Fonesca, 480 U.S. 420 (1987) as recognized by Matter of Mogharrabi, 19 I. &




                                             7
N. Dec. 439 (BIA 1987) (emphasis supplied).2

       We have interpreted Matter of Acosta as requiring the asylum seeker to “(1)

identify a group that constitutes a ‘particular social group’ within the [BIA’s]

interpretation . . . (2) establish that he or she is a member of that group, and (3) show that

he or she would be persecuted or has a well-founded fear of persecution based on that

membership.” Fatin, 12 F.3d at 1240.

       We defer to the BIA’s interpretation of statutory terms in the Refugee Act such as

“particular social group” pursuant to the standards set out in Chevron U.S.A., Inc. v.

National Resources Defense Counsel, Inc., 467 U.S. 837 (1984). See Fatin, 12 F.3d at

1239; Lukwago, 329 F.3d at 171. However, the BIA may not depart from existing

precedent “without announcing a principled reason for the departure.” Amafi v. Ashcroft,

328 F.3d 719, 728 (3d Cir. 2003). We do not supply our own reasoning for the results

reached by the BIA as “[i]t is a bedrock principle of administrative law that judicial

review of an agency’s decision is limited to the rationale that the agency provides.”

Konan v. Attorney General of the United States, 432 F.3d 497, 501 (3d Cir. 2005) (citing

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

       Hong relies heavily on Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003). In

Lukwago, our Court found that fear of future persecution was a viable theory of asylum

for a Ugandan child who was abducted and forced into military service by a rebel group,

   2
    The quoted portion of Matter of Acosta remains good law. See Fatin, 12 F.3d at
1240 n.9.

                                              8
the Lord’s Resistant Army. Id. at 178. The Court found that the government had

provided “no persuasive reason” why “particular social group” could not be interpreted to

include “former child soldiers who have escaped LRA enslavement.” Id. The Lukwago

Court found that this group fit within the BIA’s recognition in Matter of Acosta that

shared experience “such as former military experience” could form the basis for

immutable characteristics by which a social group could be defined. Id.

       The Lukwago Court, however, rejected Lukwago’s argument that he could be

eligible for asylum based on past persecution on account of his membership in the same

group. Id. at 172, 178. Lukwago, the Court found, could not claim that he had suffered

persecution because he was a former child soldier:

       We agree that under the statute a “particular social group” must exist
       independently of the persecution suffered by the applicant for asylum.
       Although the shared experience of enduring past persecution may, under
       some circumstances, support defining a “particular social group” for
       purposes of fear of future persecution, it does not support defining a
       “particular social group” for past persecution because the persecution must
       have been “on account of” a protected ground. Therefore, the “particular
       social group” must have existed before the persecution began.

Id. at 172. This reasoning means that defining a “particular social group” solely by

persecution obviates the requirement that the alien establish that they suffered persecution

“on account of” their membership in a group – essentially, “I was persecuted on account

of my membership in a group that was persecuted” is not a valid asylum claim.

       Hong argues that, in accordance with Matter of Acosta, he is a member of a

“particular social group” based on his past experience of offering testimony against the

                                             9
Snakeheads. In accordance with Lukwago, Hong argues that he can ground his fear of

future persecution in his membership in this group. Hong claims that this experience is

immutable, now, since he cannot change the fact that he cooperated with the authorities.

See Lukwago, 329 F.3d at 178 (“His status as a former child soldier is a characteristic he

cannot change and one that is now, unfortunately, fundamental to his identity.”). The fact

that the persecution he fears is arguably retaliation for conduct he voluntarily undertook

should not diminish his claim, according to Hong, since we found in Lukwago that the

fear of persecution was based in part on evidence that “the LRA . . . engages in retaliatory

conduct to punish children who have successfully escaped.” Id. at 179. The fact that

Hong voluntarily undertook the conduct that made him a member of this group also does

not distinguish his case from Lukwago, in Hong’s view, as the child in that case also

voluntarily acted by escaping from slavery, knowing of the retaliation the LRA might

exact if he were successful. Also like Lukwago, the government arguably has not offered

a “persuasive reason” for its construction of the statute to exclude Hong’s proffered social

group. See id. at 178 (“The INS has offered no persuasive reason why a ‘particular social

group’ under the INA may not consist of former child soldiers who have escaped LRA

enslavement.”).

                                            III.

       We find ourselves uncertain of the grounds upon which the BIA rested its reversal

of the IJ decision and, accordingly, unable to carry out our responsibility of determining



                                            10
whether it represents a rational application of existing precedent. In particular, it is

unclear to us whether the BIA’s decision rested on a finding that Hong had failed the first

or the third prong of the test we suggested in Fatin – whether Hong failed to “identify a

group that constitutes a ‘particular social group’” under 8 U.S.C. § 1101(a)(42)(A) or

whether he failed to “show that he or she would be persecuted or has a well-founded fear

of persecution based on that membership.” See Fatin, 12 F.3d at 1240. For this reason

and because it appears to us that a grant of asylum in this case might have important

consequences for the implementation of our national immigration policy, we find it

prudent to remand this case to the BIA for a fuller explanation of its views on the issues

raised here. Cf. Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d Cir. 2001) (remanding

because the BIA “never explain[ed] . . . what particular aspects of [the asylum seeker’s]

testimony it would have been reasonable to expect him to have corroborated” so that the

decision would be consistent with BIA precedent and the “BIA’s failure of explanation

makes it impossible for us to review its rationale”). (Emphasis in original.)

       First, we note that the first-quoted paragraph of the BIA’s decision can be read to

express its disagreement with the proposition that juvenile informants on smuggling rings

in general or on the Snakeheads in particular can constitute a “particular social group.”

On the other hand, in the context of the second paragraph it need not be read in that

fashion.

       The BIA’s primary rationale for its ultimate conclusion here appears to be



                                              11
reflected in the following text from its opinion:

       If an alien smuggling ring seeks to harm the respondent, it is not on account
       of his membership in a particular social group, but rather from retribution
       for his actions in testifying against four smugglers. . . . There is no
       evidence in the record that the over 50 smuggling rings attempt to harm all
       informers or witnesses, or just those which harmed their particular
       enterprise. Thus, the respondent has failed to show that as an informer, he
       shares a “common” characteristic with other informers or witnesses, in that
       it appears that his actions only harmed a particular smuggling ring. This
       ring, or the associates of the four smugglers convicted, would have no
       motivation to seek retribution on other informers, since each act of
       whistleblowing or testimony is unique circumstance that affects, at most,
       one ring.

App. at 4 (citations omitted).

       The gist of the BIA response to the IJ decision is that there is no showing of a

nexus between the fear of persecution found by the IJ to be an objective one and

membership in the claimed social group because smuggling rings, of which there are

many, are likely to retaliate only against informants who testify against members of their

immediate ring and not against those who inform against members of other rings. It

apparently followed, in the BIA’s view, that if the Snakeheads harmed Hong it would not

be because he was a member of “a particular social group” consisting of “juvenile

informants against international smuggling rings.” (Emphasis supplied.)

       We find this analysis less than satisfying because it seems clear to us from her

opinion that the “particular social group” the IJ had in mind consisted of juveniles who

informed on a particular gang, i.e., the Snakeheads. Her finding had to do with Hong’s

fear that he would be detained on his return to China and would there be subject to

                                             12
retaliation by the Snakeheads for having testified against them. 3 The motive of the



   3
       The IJ found, inter alia,

          [H]ere we have a juvenile who informed on a criminal gang.

                  And basically, the snake heads are a major criminal organization,
          equivalent to the mafia or to the Russian gang in the United States. We
          have a juvenile who informed on a criminal gang. It is his subjective belief
          that these people are powerful enough that they will contact people in
          China, or that they will make people in China aware that he has informed on
          them. And that he would, in fact, be harmed if he returned to China
          because of his activities of informing on these criminals.

                  There is sufficient information in these materials submitted in
          Exhibit 8 to find that the snake heads are indeed a powerful criminal gang
          operating internationally, that they are capable of bribing and corrupting
          officials in People’s Republic of China, as well as officials in other
          countries.

                                              ***

                  Does he have a subjective fear of returning, the Court finds that he
          has a subjective fear. In looking at the information contained in Exhibit 8,
          it is based on objective, if there is an objective bases because there were
          enough information in these articles to show that these shake heads have
          contacts, have influence, and the government of China cannot control their
          activities.

                                              ***

                  Accordingly, the Court finds that while the respondent has not
          suffered past persecution, he would suffer future persecution because he is a
          person or juvenile who testified against snake heads who have great
          influence in the Chinese government, who are capable of leeching people
          and harming them, and the Chinese government cannot control this type of
          activity.

App. at 21-22; App. at 24.

                                               13
Snakeheads if that occurred would have a nexus to a “particular social group,” consisting

of juvenile informants against the Snakeheads.

       In addition to this lack of nexus point, however, it seems to us that the BIA may

have had a third basis for its ultimate conclusion. The BIA appears to be drawing a

distinction between “retribution over personal matters” and retribution for group

membership. If this is the case, we also find this explanation unsatisfying in the context

of BIA case law and Third Circuit case law which recognizes that the common immutable

characteristic of “a particular social group” may be a common past experience. As we

have noted, the BIA in Matter of Acosta recognized that a “shared past experience such as

former military leadership or land ownership” could be the kind of shared characteristic

on which a protected social group could be based. Matter of Acosta, 19 I. & N. Dec. at

233. In Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988), it recognized that those

formerly serving in the El Salvadoran national police could be a protected social group

under the asylum statute. In In re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA 1996), the

BIA found that young women not yet subjected to, and opposing the practice of, female

genital mutilation by their tribe were a particular social group. If the distinction between

“personal matters” and non-personal matters is the basis for the BIA’s decision, it is

unclear why these experiences are not “personal matters” while testifying against

criminals is. As Lukwago illustrates, common past experience of groups so defined will

frequently be “personal matters” resulting at least in part from personal decision making.



                                             14
       We realize that the BIA in Matter of Acosta did not hold that all past experiences

qualify as common characteristics appropriate for defining a social group. It recognized

only that “shared past experience” may be used “in some circumstances,” noting that the

“particular kind of group characteristic that will qualify under this construction remains to

be determined on a case by case basis.” Matter of Acosta, however, does recognize that

certain past experiences form the basis for protected group status under the asylum

statute, and other BIA precedents have recognized such protection for some experiential-

based groups offered by asylum seekers. See, e.g., Matter of Fuentes, 19 I. & N. Dec. at

662; In re Fauziya Kasinga, 21 I. & N. Dec. 357 (1996). To the extent that the BIA now

departs from precedent, it owes Hong a “principled reason” for why it has chosen to

interpret “particular social group” so as not to include the group he has proffered. See

Amafi, 328 F.3d at 728. We can perform our statutorily imposed review responsibility

only if we are provided with an explanation of the basis for the BIA conclusion in a

particular case that enables us to judge its consistency with Board and judicial precedent.

We are not satisfied that we have such an explanation here.4

   4
    We note that we are also puzzled by the BIA’s comment that there is no “evidence
that other juvenile informers of this particular smuggling ring, or any ring, exist or fear
reprisals.” First, there clearly is evidence that there were other informers against the
Snakeheads, and that evidence certainly suggests that prosecutors of other smuggling
rings must have solicited similar aid. While the record is silent with regard to the age of
other informants, we fail to perceive the importance of the addition of “juvenile” to the
description of the “particular social group.” Finally, with respect to the fear of other
informants, the BIA did not disturb the IJ’s factual findings regarding the access of
Snakeheads to Chinese detention centers. See supra note 2. Accepting those findings,
there would appear to be the same basis for concluding that other informers on the

                                             15
       The issue here posed is a sensitive one that should not be resolved without the

benefit of the expertise of the Agency. As we have noted, once “shared personal

experience” is recognized as a legitimate immutable characteristic for purposes of

defining “a particular social group,” the limits of that principle are not easy to limit. See

Escobar v. Gonzalez, 417 F.3d 363 (3d Cir. 2005). Whether or not it extends to a

situation in which the shared experience is conduct voluntarily undertaken after entry into

the United States seems to us a question that may have important implications for the

implementation of our national immigration policy.5 We hold only that the BIA opinion

in this case failed to provide a principled reason for the conclusion it reached.

       The petition for review will be granted, and this matter will be remanded to the

BIA for further proceedings consistent with this opinion.




Snakeheads shared the same objectively reasonable fears that Hong was found to have.
   5
     We also note that this is a situation which Congress has addressed in another segment
of the Immigration and Nationality Act. Aliens in Hong’s situation have another avenue
for relief, an avenue Hong unsuccessfully pursued – obtaining an S-Visa from the
prosecutor who uses their testimony. Congress has specifically delimited such grants to
those witnesses who offer “critical reliable information” concerning a “criminal
organization or enterprise” and who are “essential to the success of” an investigation or
prosecution of that enterprise. See 8 U.S.C. § 1101(a)(15)(S)(i); 8 C.F.R. § 214.2(t)(i)-
(iii).

                                              16
