                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No. 08-2783

                           JOSE ORMIN MEJIA-FUENTES,
                                          Petitioner

                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                         Respondent

                         Petition for Review of an Order of the
                             Board of Immigration Appeals
                               (Agency No. A98-358-319)

                               Argued: February 3, 2010

            Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and
                             DAVIS, District Judge*

                          (Opinion filed: February 24, 2012)

DAQUANNA CARTER, ESQ.
JESSICA RICKABAUGH, ESQ. (Argued)
PEPPER HAMILTON LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103
Attorneys for Petitioner

GREGORY G. KATSAS, ESQ.


      *
       Hon. Legrome D. Davis, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.


                                           1
Assistant Attorney General
United States Department of Justice
Civil Division
CHRISTOPHER C. FULLER, ESQ.
Senior Litigation Counsel
Office of Immigration Litigation
ALISON MARIE IGOE, ESQ.
Senior Litigation Counsel
Office of Immigration Litigation
PO Box 878 Ben Franklin Station
Washington, D.C.
DANIEL I. SMULOW, ESQ.
ANN C. VARNON, ESQ.
THEODORE C. HIRT, ESQ. (Argued)
Attorneys
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent

                                        OPINION

McKEE, Chief Judge.

       Jose Osmin Mejia-Fuentes has filed a petition for review of a decision of the

Board of Immigration Appeals (ABIA@) that dismissed his appeal of an order of an

Immigration Judge (AIJ@) denying his applications for asylum and withholding of

removal. For the reasons that follow, we will grant the petition for review and remand

for further proceedings.

                     I. FACTS AND PROCEDURAL HISTORY1

       1
       Since we write primarily for the parties, we need not set forth the factual or
procedural history in detail.

                                             2
       Jose Osmin Mejia-Fuentes applied for asylum, withholding of removal, and relief

under Article 3 of the Convention Against Torture (ACAT@).2 He based his claim for

relief on his contention that he had suffered past persecution by the Mara Salvatrucha

(AMS@), a violent criminal street gang in El Salvador, and that he feared future

persecution from MS if returned to El Salvador. He claimed that the persecution arose

from his resistance to that gang=s attempts to recruit him to be a member of the gang. He

thus rests his asylum claim on membership in a Aparticular social group,@ which he

defines as Ayoung men who morally oppose criminal gangs and who lack family ties.@




       2
       The Immigration Judge denied Mejia-Fuentes=s application for relief under the
CAT and the Board of Immigration Appeals held that the denial was proper. Mejia-
Fuentes does not seek review of that ruling.


                                             3
       The IJ denied any relief and ordered Mejia-Fuentes removed to El Salvador. The

IJ held that the proposed social group did not have the requisite characteristics of a

particular social group under BIA precedent which requires a visible and innate identity

or under Third Circuit precedent. Administrative Record (AAR@) 402 (citing Matter of

Acosta, 19 I. & N. Dec. 211 (BIA 1985), In re H-, 21 I. & N. Dec. 337 (BIA 1996), and

Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), respectively). The IJ further held that the

proposed social group had no existence independent of the alleged persecution, and that

even if it did, Mejia-Fuentes Afailed to establish any persecution by this group as defined

under the law.@ Id. The IJ based his reasoning at least in part on a belief that the

evidence did not establish retaliation for Mejia-Fuentes=s rejection of the gang=s

recruitment efforts. Instead, the IJ concluded that the gang was motivated solely by

criminal intent in targeting Mejia-Fuentes and by a desire to increase its membership.3

       On appeal, the BIA affirmed the IJ=s finding that Mejia-Fuentes did not meet his

burden of proof for asylum and withholding of removal Aby establishing that any past or

future mistreatment in El Salvador would be on account of a ground protected under the

Act.@ AR 2. The BIA said that even if Mejia-Fuentes=s Aevidence were deemed to be

sufficient to establish that the gang members actually sought to persecute him >on account

of= any moral objection to gangs and his lack of family ties, as opposed to their purely

criminal goal of enhancing their ranks, [Mejia-Fuentes] has nevertheless failed to

       3
      The IJ also questioned Mejia-Fuentes=s credibility, finding his testimony was so
Ameager and vague@ that corroboration, if available, was essential. AR 404.


                                              4
demonstrate that >young men who morally oppose criminal gangs and who lack family

ties= have sufficient social visibility in El Salvador to be recognized as a >particular social

group= within the meaning of the Act.@ Id. (citations omitted).4

       This petition for review followed.5




       4
        As to the IJ=s finding that Mejia-Fuentes was not credible, the BIA said: AWe need
not address the [IJ=s] determination that [Mejia-Fuentes] is not credible, for we conclude
that [Mejia-Fuentes] has failed to meet his burdens of proof even if assumed to be
credible.@ AR 2.
       5
        Our review of questions of law is de novo. Kamara v. Attorney General, 420
F.3d 202, 210-11 (3d Cir. 2005). We review the BIA=s statutory interpretation of the
Immigration and Nationality Act under the deferential standard of Chevron v. Natural
Resources Defense Counsel, 467 U.S. 837 (1984). If the statute is silent or ambiguous to
the specific issue, the question for the court is whether the agency=s interpretation is based
on a permissible construction of the statute. Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir.
1993). Where, as here, the BIA issues its own decision, we review that decision. Li v.
Attorney General, 400 F.3d 157, 162 (3d Cir. 2005).


                                               5
                 II. ASYLUM AND WITHHOLDING OF REMOVAL

       Section 208 of the Immigration and Nationality Act (AINA@) gives the Attorney

General discretion to grant asylum to a removable alien. 8 U.S.C. ' 1158(a). However,

the grant of discretion is conditioned upon the alien establishing that s/he is a Arefuge@ as

defined in 8 U.S.C. ' 1101(a)(42)(A). Thus, the alien must establish that s/he was

persecuted Aon account of@ one of the five statutory grounds set forth in that section. See,

INS v. Elias-Zacarias, 502 U.S. 478 (1992).

                                     III. DISCUSSION

       Before discussing the merits of this petition for review, we must first address the

government=s contention that Mejia-Fuentes has waived any challenge to the BIA=s

decision.

       The government submits that the BIA affirmed the IJ=s ruling that Mejia-Fuentes=s

limited testimony was insufficient to establish that MS members persecuted him. The

government argues that since Mejia-Fuentes does not challenge that determination in his

opening brief, he has waived any challenge to that ruling. See Anspach v. City of

Philadelphia, 503 F.3d 256, 259 n.1 (3d Cir. 2007) (failure to present an argument in an

opening brief constitutes waiver); Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.

2004)(same). The government claims that the BIA=s unchallenged determination is

dispositive and precludes a ruling on his petition for review. See Kost v. Kozakiewicz, 1

F.3d 176, 182 (3d Cir. 1993) (AIt is well-settled that if an appellant fails to comply with

these requirements on a particular issue [i.e., set forth the issues raised on appeal and

                                              6
present an argument in support of those issues in his opening brief], the appellant

normally has abandoned and waived that issue on appeal and it need not be addressed by

the court of appeals.@). We disagree.

       The BIA did not hold that Mejia-Fuentes failed to establish past persecution or a

well-founded fear of future persecution. Rather, the BIA held that Mejia-Fuentes failed

to establish Athat any past or future mistreatment in El Salvador was or would be on

account of a ground protected under the Act.@ AR at 2 (italics added). The BIA based its

ruling squarely on its belief that Meija-Fuentes Afailed to demonstrate that >young men

who morally oppose criminal gangs and who lack family ties= have sufficient social

visibility in El Salvador to be recognized as a >particular social group= within the meaning

of the Act.@ AR 2. The BIA did not make any determination on the issue of persecution

because it determined that Mejia-Fuentes did not establish that his proposed social group

was a Aparticular social group.@ Mejia-Fuentes does challenge that ruling on appeal.

                                              A.

       After this case was fully briefed, we decided Valdiviezo-Galdamez v. Attorney

General (AValdiviezo-Galdamez II@), 663 F.3d 582 (3d Cir. 2011). There, we discussed

at length the BIA=s initial interpretation of the term Aparticular social group@ and its later

development of the requirement of Asocial visibility@ for determining whether a proposed

social group constitutes a Aparticular social group@ for purposes of asylum and

withholding of removal under the INA.

       In Valdiviezo-Galdamez II, we held, inter alia, that the BIA=s requirement of

                                               7
Asocial visibility@ which was applied in denying Valdiviezo-Galdamez relief, and which

was applied here by the BIA in denying Mejia-Fuentes relief, was not entitled to

deference under the standards established in Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), because it was inconsistent with a number of

cases in which the BIA had found that a proposed social group was a Aparticular social

group@ under the standard it had earlier established in Matter of Acosta, 19 I. & N. Dec.

211 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec.

439 (BIA 1987). Valdiviezo-Galdamez II, 663 F.3d at 603-07.

       Although the BIA can certainly change the requirements for establishing

membership in Aa particular social group,@ we explained in Valdiviezo-Galdamez II that

the BIA must Aannounce a principled reason@ for departing from established precedent,

and it had not done so in denying Valdiviezo-Galdamez=s claim that persons resisting

recruitment into MS could constitute a particular social group for purposes of establishing

refugee status. Id. at 608. We held that, unless or until the BIA provides a Aprincipled

reason@ for its departure from established precedent, its prior ruling in Matter of Acosta

should control inquiries into whether an aslyum applicant=s proposed social group

constitutes a Aparticular social group@ under the Act. Id.6

       Our decision in Valdiviezo-Galdamez II is controlling here. Therefore, we will

       6
        We also noted in Valdiviezo-Galdamez II that the ABIA must not only announce a
>principled reason= for any changes it makes to its definition of >particular social group,=
any announced changes must be based on a permissible construction of the statute.@ 663
F.3d at 609 n.19.


                                              8
grant this petition for review on the issue of Meija-Fuentes=s membership in a particular

social group and remand for further review for the BIA to analyze Mejia-Fuentes=s

proposed social group in a manner that is consistent with this opinion and our holding in

Valdiviezo-Galdamez II.

                                              B.

         Before concluding, we think it important to comment on the IJ=s conclusion that the

proposed social group has no existence independent of the alleged persecution by MS.

The BIA did not mention that finding in its decision. Nonetheless, the government cites

our decision in Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003), in arguing that Meija-

Fuentes can not establish refugee status because his claimed social group has no existence

independent of the alleged persecution. In Lukwago, we stated that a A>particular social

group= must have existed before the persecution began.@ Id. at 172.

         However, we disagree with the government=s contention that Mejia-Fuentes=s

proposed social group has no existence prior to, or independent of, the alleged

persecution. As noted, Mejia-Fuentes=s proposed social group is Ayoung men who

morally oppose criminal gangs and who lack family ties.@ In Valdiviezo-Galdamez I, we

held that a similar proposed social group existed independently of its persecution. We

wrote:

                Before the IJ, Galdamez identified the particular social group
                to which he belongs as Athose who have been actively
                recruited by gangs but have refused to join because they
                oppose those gangs.@ App. 185. In his brief, he identifies the
                group as Ayoung Honduran men who have been actively

                                              9
                recruited by gangs and who have been persecuted by these
                gangs for their refusal to accept membership.@ Appellants= Br.
                25. In discussing the group, we omit the fact of the group=s
                later persecution from its definition to make clear that the
                group exists independently of its persecution. See Lukwago v.
                Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (A[T]he >particular
                social group= must have existed before the persecution
                began.@).


502 F.3d at 290 n.3 (emphasis added). With the exception of Mejia-Fuentes= addition of

persons lacking family ties to his proposed social group, we can see no difference

between Mejia-Fuentes=s proposed social group and Valdiviezo-Galdamez=s proposed

social group.

                                    IV. CONCLUSION

       For all of the above reasons, we will grant the petition for review and remand to

the BIA for its consideration of whether Mejia-Fuentes=s proposed social group

constitutes a Aparticular social group@ under the standard the BIA established in Matter of

Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), as explained in Valdiviezo-Galdamez II.




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