UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DELMY LETICIA ARGUETA-RODRIGUEZ,
Petitioner,

v.
                                                                        No. 95-2367
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-379-183)

Argued: November 1, 1996

Decided: October 29, 1997

Before ERVIN, Circuit Judge, BOYLE,
United States District Judge for the
Eastern District of North Carolina, sitting by designation, and
JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Petition for review denied by unpublished opinions concurring in the
judgment.

_________________________________________________________________

COUNSEL

ARGUED: John William O'Leary, Washington, D.C., for Petitioner.
Farzin Franklin Amanat, Office of Immigration Litigation, Civil Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assistant
Attorney General, David J. Kline, Assistant Director, Regina Byrd,
Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

JUDGMENT

The Court denies the petition for review of a final order of the
Board of Immigration Appeals filed by Delmy Leticia Argueta-
Rodriguez.

PETITION DENIED

JACKSON, District Judge, concurring in the judgment:

Delmy Leticia Argueta-Rodriguez petitions for review of a final
order of the Board of Immigration Appeals (Board) denying her appli-
cation for political asylum and withholding of deportation. Because
substantial evidence supports the Board's decision, the petition should
be denied.

I.

Petitioner Delmy Leticia Argueta-Rodriguez was born on February
18, 1971, in Canton Rodeo Jocoaitique, Morazan Department, El Sal-
vador. She was ten years old when her family village of El Mozote
was massacred by Salvadoran army soldiers in December 1981.
Argueta-Rodriguez was with her grandmother in a nearby village the
day of the massacre. She escaped harm but saw her village burning
in the distance.

Argueta-Rodriguez moved from one relative to another, bore a
child with a live-in companion, and, in June 1992, entered the United

                    2
States without inspection. She applied for political asylum in July
1992 but was denied. Deportability was conceded in written court
pleadings of September 23, 1994, and relief was denied by the Immi-
gration Court in the hearing on December 2, 1994.

In its final order dated May 5, 1995, the Board of Immigration
Appeals affirmed the Immigration Court's decision to deny relief. The
Board determined that Petitioner was a credible witness but agreed
with the Immigration Judge that she had failed to establish eligibility
for asylum or withholding of deportation. The Board held that the
actions of the Salvadoran army did not establish that the victims of
the massacre were persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion. The
Board took note of the fact that Petitioner was outside the village
when the inhabitants were massacred and there was no indication that
Petitioner or other former residents were sought out by the army. The
Board also noted that Petitioner lived in El Salvador for ten years
after the massacre without incident.

Additionally, the Board held that because Petitioner had not estab-
lished that she had a well-founded fear of future persecution, she did
not demonstrate a clear probability of it. Therefore, withholding of
deportation was also denied. On July 14, 1995, Petitioner timely
appealed to this Court to review the Board's final order.

II.

The Immigration and Nationality Act (INA) authorizes the Attor-
ney General, in her discretion, to confer asylum on any "refugee." 8
U.S.C.A. § 1158(a) (West Supp. 1996). The INA defines "refugee" as
a person unwilling or unable to return to his native 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.A. § 1101(a)(42)(A) (West Supp. 1996).
There are three elements the alien must establish to qualify for with-
holding of deportation or asylum based on membership in a particular
social group. The alien must (1) identify a group that constitutes a
"particular social group," (2) establish that she is a member of that
group, and (3) show that she would be persecuted or has a well-

                    3
founded fear of persecution based on that membership. Fatin v. I.N.S.,
12 F.3d 1233, 1240 (3d Cir. 1993).

A reviewing court must uphold the Board's determination if the
determination is "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." 8 U.S.C.A.
§ 1105a(a)(4)(West 1970).

III.

Petitioner argues that the Board incorrectly failed to acknowledge
her as a member of a discrete and insular social group protected by
the INA. Petitioner seeks to have the Court recognize the "children of
El Mozote" as such a social group. Petitioner argues that if she is a
member of such a group, the Board erred in its determination that asy-
lum should not be granted.

To demonstrate membership in a particular social group, the Peti-
tioner must show:

         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 con-
         struction 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 member of the group
         either cannot change, or should not be required to change
         because it is fundamental to their individual identities or
         consciences.

Fatin v. I.N.S., 12 F.3d 1233, 1239-40 (3d Cir. 1993), quoting Matter
of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985).

Petitioner argued extensively about the atrocity committed in the
village of El Mozote. She has provided much evidence establishing

                    4
the tragic and gruesome nature of the killings. The occurrence of the
massacre and Petitioner's affiliation with the village is not in dispute.
The issue Petitioner presents to this Court is whether her characteriza-
tion of herself as a "child of El Mozote" places her in a group pro-
tected within the meaning of the statute. That protection only applies
when one is a member of such a group, and is in fear of persecution
based upon her membership. See Fatin, 12 F.3d at 1240. Here, the
Court does not need to determine her group membership. Regardless
of the group within which Petitioner identifies herself, her claim must
fail under the requirements of the Immigration Act because there
exists no fear of persecution.

Petitioner has not shown that she would be persecuted or that she
has a well-founded fear of persecution as a former resident of the vil-
lage of El Mozote. In fact, Petitioner concedes that no such fear of
persecution exists. (Pet. Brief at 14.) While documents submitted by
Petitioner show that there is still violence in El Salvador, they do not
show any violence directed at former residents or survivors of El
Mozote. No evidence suggests that those responsible for the El
Mozote massacre would be interested in Petitioner due to her status
as a former resident. Before coming to the United States, Petitioner
was able to live in El Salvador for ten years following the massacre
without any signs that those responsible for the massacre sought to
harm her. Moreover, another outspoken survivor of the massacre now
lives in El Salvador and has not been the subject of any retribution.
Thus, even if Petitioner were to establish that"children of El Mozote"
shared a characteristic such as color, kinship tie, or a shared past
experience akin to former military leadership or land ownership, and
that that characteristic was one that could not or should not be
required to change, see Fatin, 12 F.3d at 1239-40, Petitioner has not
satisfied the third element; that is, she has conceded that she has no
fear of suffering persecution based on her membership in that group.
Therefore, Petitioner's claim for asylum must fail.

The standard for withholding of deportation is more stringent than
that for granting asylum. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,
431-32 (1987). As Petitioner has not established entitlement to asy-
lum, she cannot meet the more stringent standard for withholding of
deportation.

                     5
IV.

Accordingly, I concur in the judgment to deny the petition for
review.

BOYLE, District Judge, concurring in the judgment:

I concur in the judgment of the panel that the petition for review
should be denied without joining in either of the panel's opinions.

ERVIN, Circuit Judge, concurring in the judgment:

Although I agree with the conclusion reached by both of my col-
leagues that Petitioner Argueta-Rodriguez's (Argueta) Petition for
Review should be denied, I write separately to express my views as
to what Argueta needed to show to prevail and to explain why she
must fail in these circumstances.

This case arises in a unique factual posture: a claim for asylum
based on past persecution due to membership in a particular social
group. Under 8 U.S.C. § 1158(a) the Attorney General possesses dis-
cretion to grant asylum to an alien physically present in the United
States if the alien qualifies as a refugee within the meaning of 8
U.S.C. § 1101(a)(42)(A). That section provides:

          The term "refugee" means (A) any person who is outside
          any country of such person's nationality or, in the case of
          a person having no nationality, is outside any country in
          which such person last habitually resided, 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 par-
          ticular social group, or political opinion . . . .

8 U.S.C. § 1101(a)(42). The INS's own regulations provide that an
alien may qualify as a refugee because "he has suffered actual past
persecution." 8 C.F.R. § 208.13(b); see also In re Chen, Interim Deci-
sion 3104, 1989 WL 331860 at 3 (B.I.A. 1989). The persecution suf-

                    6
fered must be on account of one of the five statutory grounds above,
but, once established, creates a rebuttable presumption of a well-
founded fear of persecution. 8 C.F.R. § 208.13(b)(1); Chen, 1989 WL
331860 at 3. In the instant case, Argueta concedes she has no well-
founded fear of future persecution but argues she suffered past perse-
cution on account of her membership in a particular social group.

Most cases that arise involve the second, "well-founded fear of per-
secution" prong of eligibility, as, for example, do those that we have
previously addressed. See, e.g., Huaman-Cornelio v. Board of Immi-
gration Appeals, 979 F.2d 995 (4th Cir. 1992); M.A. v. INS, 899 F.2d
304 (4th Cir. 1990) (en banc); Cruz-Lopez v. INS , 802 F.2d 1518 (4th
Cir. 1986). I am persuaded that this case does not involve this prong,
but instead should be decided under the first factor.1

Unlike in cases of future persecution where the alien must demon-
strate "a specific threat directed towards him on account of an imper-
missible statutory factor," M.A., 899 F.2d at 315, the BIA itself has
recognized that in cases of past persecution atrocities visited upon the
family may be sufficient to warrant a favorable exercise of discretion
in granting asylum for general humanitarian reasons. Chen, 1989 WL
331860 at 3 (relying upon The Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and the
1967 Protocol Relating to the Status of Refugees (Geneva 1979) for
the "general humanitarian principle" that"[i]t is frequently recognized
that a person who--or whose family--has suffered under atrocious
forms of persecution should not be expected to repatriate" (emphasis
added)); see also Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993)
(recognizing eligibility for asylum based on past persecution "where
an applicant or his family has suffered`under atrocious forms of per-
secution'" (citation omitted) (emphasis added)). In the instant case,
_________________________________________________________________
1 Although less common, the past persecution prong is not entirely
moribund. Recently, the Ninth Circuit has issued a number of opinions
in which that court has not only considered claims of past persecution,
but also has reversed Board of Immigration Appeals (BIA or Board)
decisions or remanded for further proceedings. See, e.g., Surita v. INS,
95 F.3d 814, 819-20 (9th Cir. 1996); Singh v. INS, 94 F.3d 1353, 1360
(9th Cir. 1996); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996); Singh
v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995).

                    7
the BIA's decision is unclear as to whether Argueta has failed to dem-
onstrate she has suffered from past persecution at all or whether she
failed to demonstrate persecution on the basis of one of the statutory
factors or both.2 Despite the Board's claims to the contrary on this
appeal, the better reading of the BIA decision below would find that
the Board implicitly recognized that Argueta had suffered past perse-
cution but denied her appeal on the basis of her failure to satisfy one
of the five statutory factors. Indeed, if family persecution is to count
at all, it is hard to imagine a more direct, atrocious, and final persecu-
tion than to have both of one's parents, all five siblings, sundry other
relatives, and just about everyone one grew up knowing all brutally
murdered and then incinerated. No case has held that one must have
_________________________________________________________________
2 The BIA's decision, while unclear, implicitly appears to have
accepted Argueta's claim that she has suffered past persecution sufficient
to satisfy that aspect of the statutory requirement for refugee status under
8 U.S.C. § 1101(a)(42). But the BIA concluded that Argueta could not
satisfy the remainder of the statutory requirement:

          However deplorable the actions of the Salvadoran army troops
         in destroying an entire village may have been, they do not estab-
         lish that the respondent was persecuted on account of race, reli-
         gion, nationality, membership in a particular social group, or
         political opinion. As noted by the United States Supreme Court
         in INS v. Elias[-]Zacarias, 502 U.S. 478 (1992), an alien must
         do more than simply show civil rights or human rights violations
         in order to demonstrate persecution within the meaning of the
         Act. . . . While the evidence indicates that [Argueta's] family
         members were killed along with many other villagers by the Sal-
         vadoran army, possibly due to a perception that residents of the
         village were guerrilla sympathizers or as some kind of lesson to
         local guerrillas, [Argueta] has not shown that she was persecuted
         by the Salvadoran army on account of one of the prescribed
         grounds in the statute. [Argueta] was outside the village at the
         time of the massacre, and there is no indication that [Argueta] or
         any other former residents were sought out by the army follow-
         ing the massacre. We note that [Argueta] continued living in El
         Salvador without incident for more than a decade following the
         December 1981 massacre, during which time she was able to
         attend school and complete her education.

In re Argueta-Rodriquez, No. A72-379-183, slip op. at 5 (B.I.A. May 5,
1995).

                   8
been an eye-witness to the massacre of one's family to suffer from
persecution; moreover, there is ample evidence that Argueta, in fact,
saw red fumes coming from her village and believed that color to
indicate that bodies were being burned. Although I believe that for the
proper resolution of this appeal we do not need to reach the matter,
surely "no reasonable factfinder could fail to find" past persecution on
this evidence. INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992).

The much more difficult problem is whether the persecution Argu-
eta has suffered was due to her membership in a particular social
group. Like the issue of past persecution, this statutory factor has
been only rarely dealt with by courts, and it appears to be the least
litigated factor of the five. Fortunately, most of those courts that have
considered the matter have attempted to analyze the meaning and
parameters of "particular social group." See, e.g., Fatin v. INS, 12
F.3d 1233, 1238-40 (3d Cir. 1993); Gebremichael v. INS, 10 F.3d 28,
35-36 (1st Cir. 1993); Gomez v. INS, 947 F.2d 660, 664 (2d Cir.
1991); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1573-78 (9th Cir.
1986); Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985).

However, as an initial matter, unfortunately, these courts are not
agreed on the appropriate standard of review. Unlike the issue of per-
secution itself, whether past or future, where it is clear how to apply
the substantial evidence standard, the proper review of "particular
social group" is less certain. The First Circuit in Gebremichael found
the BIA's determination of statutory eligibility for relief from depor-
tation under this factor to be a mixed question of law and fact and
applied the substantial evidence test. Gebremichael, 10 F.3d at 34. By
contrast, the Third Circuit in Fatin performed a Chevron analysis of
the BIA's construction of the phrase, see Chevron U.S.A., Inc. v. Nat-
ural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), and,
after finding it to be permissible and thus binding on the court,
appeared to undertake a de novo review of that construction to the
facts of the case. Fatin, 12 F.3d at 1239-42. Analytically, the BIA's
determination that an alien is or is not a member of a particular social
group presents a question of fact to which the substantial evidence
test should apply. But the determination of whether a purported social
group is, indeed, a "particular social group" within the meaning of the
statute shades into becoming a legal question for which the Third Cir-
cuit's apparent approach is preferred.

                     9
Courts are agreed that there is no evidence of legislative intent
behind the phrase "particular social group" and that it derives from the
1967 United Nations Protocol Relating to the Status of Refugees, 19
U.S.T. 6223, T.I.A.S. No. 6577, to which Congress in the Refugee
Act of 1980 sought to conform. Fatin, 12 F.3d at 1239; Sanchez-
Trujillo, 801 F.2d at 1575. Previously, the BIA, employing the doc-
trine of ejusdem generis, construed the phrase as relating to

          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 circum-
          stances it might be 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.

In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985). The Fatin court
found this to be a permissible construction of the statute and thus con-
cluded it was bound to accept it under Chevron . Fatin, 12 F.3d at
1239-40; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48
(1987). Courts that have not undertaken a Chevron analysis have nev-
ertheless interpreted the phrase in similar terms. See Sanchez-Trujillo,
801 F.2d at 1576 ("[T]he phrase `particular social group' implies a
collection of people closely affiliated with each other, who are actu-
ated by some common impulse or interest. Of central concern is the
existence of a voluntary associational relationship among the pur-
ported members, which imparts some common characteristic that is
fundamental to their identity as a member of that discrete social
group." (emphasis in original)); Ananeh-Firempong, 766 F.2d at 626
(turning to the U.N.'s Handbook on Procedures and Criteria for
Determining Refugee Status for the interpretation that a "`particular
social group' normally comprises persons of similar background, hab-
its or social status. . . . Membership of [sic] such a particular social
group may be at the root of persecution because there is no confi-
dence in the group's loyalty to the Government or because . . . the

                    10
very existence of the social group as such[ ] is held to be an obstacle
to the Government's policies." (citations omitted)).

Once "particular social group" is understood, courts apply a multi-
factor test to determine whether an alien is eligible for relief based on
such group membership. The Third Circuit's three-part test requires
the alien to

          (1) identify a group that constitutes a "particular social
          group" within the interpretation [of the BIA], (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. Presumably, where the claim is based on past
persecution, as in the instant case, the third element would require a
showing that the alien suffered past persecution based on that mem-
bership. The Ninth Circuit has stated the third element as one deter-
mining whether "the purported `social group' has in fact been targeted
for persecution on account of the characteristics of the group mem-
bers." Sanchez-Trujillo, 801 F.2d at 1575. This reading seems prefera-
ble since it can apply in cases of both past and future persecution. The
Ninth Circuit also recognized a fourth element in considering
"whether such `special circumstances' are present to warrant us in
regarding mere membership in that `social group' as constituting per
se eligibility for asylum or prohibition of deportation." Id.

One of my colleagues rests his decision on Argueta's failure to sat-
isfy the third factor of the Fatin test and accordingly refused to reach
the issue of Argueta's social group. In the particular context of Argu-
eta's claim of past persecution, I believe this analysis misapplies that
third factor. However, because I think that Argueta cannot satisfy the
first factor, I would not reach the other factors but nevertheless concur
in the judgment unanimously agreed upon to deny the petition for
review.

Although somewhat unclear, it appears that the BIA understood
Argueta to claim the "particular social group" to which she belonged
to be the "children from El Mozote."3 On appeal, the Board character-
_________________________________________________________________
3 El Mozote was Argueta's native village in El Salvador, from which
she was absent when the massacre occurred. Unbeknownst to her, there

                     11
izes the matter as Argueta failing altogether to identify a group and
the Board defining the group as "children of El Mozote." Certainly at
oral argument, Argueta's own arguments focused on"children of El
Mozote" as the particular social group to which she purportedly
belonged. I therefore accept, and analyze, Argueta's claim on the
basis of her apparent characterization of herself as a child of El
Mozote. The "children of El Mozote," however, simply does not con-
stitute a particular social group under the BIA's, or other, case law,
and Argueta's characterization therefore fails the first factor of the
Fatin test.

As an initial matter, being a "child of El Mozote" is not an immuta-
ble characteristic. Argueta herself is no longer a child, but an adult,
and from the time of the massacre has dissociated herself from El
Mozote. Argueta does not argue that the "children of El Mozote" are
bound by kinship ties. Moreover, these purported members of the
group are not united by shared past experiences akin to land owner-
ship or former military leadership. Indeed, the only shared past expe-
rience is that they would all have been children at some point in the
village of El Mozote. This single common characteristic is not so fun-
damental to identity or conscience as to bind these individuals into a
protectable social group. See Acosta, 19 I. & N. Dec. at 233.

Furthermore, the "children of El Mozote" are not actuated by some
common impulse or interest. Membership in this purported group is
not based on a voluntary associational relationship. See Sanchez-
Trujillo, 801 F.2d at 1576. Finally, Argueta presented no probative
evidence that those responsible for the El Mozote massacre were par-
ticularly interested in her due to her status as one of the "children of
El Mozote." As the Board noted, Argueta continued to live in El Sal-
vador for ten years following the massacre without any indication that
those responsible for the massacre attempted to harm her, or even
seek her out. There is simply no suggestion that being one of the
"children of El Mozote" was at the root of the persecution, that the
group's allegiances were in doubt, or that the very existence of the
_________________________________________________________________

was apparently only one other survivor. All of the children present in the
village were executed.

                    12
group presented some sort of obstacle to those responsible for the
massacre. See Ananeh-Firempong v. I.N.S., 766 F.2d at 626.

I therefore conclude that the "children of El Mozote" is not a par-
ticular social group within the meaning of 8 U.S.C.§ 1101(a)(42)(A).
Because Argueta fails to satisfy the first factor of the Fatin test, I
would not reach the others. Substantial evidence therefore supports
the Board's conclusion that Argueta's application for asylum must
fail. Because by this analysis I arrive at the same result as my col-
leagues, I concur in the judgment that Argueta's Petition for Review
should be denied.

                    13
