     04-4184-ag(L), 04-4185-ag (CON)
     Ucelo-Gomez v. Mukasey

 1
 2                       UNITED STATES COURT OF APPEALS
 3
 4                           FOR THE SECOND CIRCUIT
 5
 6                              August Term, 2006
 7
 8
 9   (Submitted: March 2, 2007)           (Decided: November 21, 2007)
10
11              Docket Nos. 04-4184-ag(L), 04-4185-ag(CON)
12
13   - - - - - - - - - - - - - - - - - - - -x
14
15   JOSE GODOFREDO UCELO-GOMEZ and
16   ANA MARIELA ESPANA-ESPINOZA,
17
18                     Petitioners,
19
20               - v.-
21
22   MICHAEL B. MUKASEY, Attorney General,*
23
24                     Respondent.
25
26   - - - - - - - - - - - - - - - - - - - -x
27

28         Before:           JACOBS, Chief Judge, WALKER and WALLACE,
29                           Circuit Judges.**
30
31         This reviews a decision of the Board of Immigration

32   Appeals on limited remand of a petition for review from an

           *
            Pursuant to Federal Rule of Appellate Procedure
     43(c)(2), Attorney General Michael B. Mukasey is
     automatically substituted for former Attorney General
     Alberto R. Gonzales as the respondent in this case.
           **
            The Honorable J. Clifford Wallace, United States
     Court of Appeals for the Ninth Circuit, sitting by
     designation.
1    order of the Board of Immigration Appeals summarily

2    affirming an Immigration Judge’s denial of petitioners’

3    applications for asylum and withholding of removal.

 4       Upon further consideration, the petition is denied.
 5
 6                              Roberto Tschudin Lucheme,
 7                              Glastonbury, Connecticut, for
 8                              Petitioners.
 9
10                              Francis W. Fraser, Margaret
11                              Perry, Office of Immigration
12                              Litigation, Civil Division,
13                              United States Department of
14                              Justice, Washington, D.C., for
15                              Respondent.
16
17   PER CURIAM:
18
19       Petitioners Jose Godofredo Ucelo-Gomez and Ana Mariela

20   Espana-Espinosa (husband and wife), citizens of Guatemala,

21   originally challenged a summary affirmance by the Board of

22   Immigration Appeals (“BIA”) of the oral decision of an

23   immigration judge (“IJ”) that (1) denied their applications

24   for asylum and withholding of removal under the Immigration

25   and Naturalization Act (“INA”) and their applications for

26   protection under the Convention Against Torture (“CAT”), and

27   (2) directed their removal to Guatemala.    Their asylum claim

28   was premised on their membership in a social group composed

29   of affluent Guatemalans who suffer persecution fueled by

30   class rivalry in an impoverished society.   This Court


                                  2
1    vacated the BIA’s order and remanded the case to the BIA by

2    published opinion on May 9, 2006, so the BIA could determine

3    in the first instance whether affluent Guatemalans in the

4    petitioners’ situation constitute a “particular social

5    group” within the meaning of the INA.    See Ucelo-Gomez v.

6    Gonzales, 464 F.3d 163, 172 (2d Cir. 2006) (amending 448

7    F.3d 180 (2d Cir. 2006)).   The BIA was given 49 days to

8    issue a responsive opinion; but the mandate of this Court

9    was placed on hold on May 12, 2006.     On June 19, 2006--

10   before the end of the 49 day period but while the mandate

11   was still on hold--the BIA issued a non-precedential

12   opinion, affirming the IJ’s decision on the grounds that

13   petitioners had not shown that “affluent Guatemalans” are

14   members of a particular social group and that they did not

15   demonstrate they were persecuted or faced a well-founded

16   fear of future persecution on account of a protected ground.

17   See In re Espana-Espinoza & Ucelo-Gomez, A 79 781 430, A 79

18   781 419 (B.I.A. June 19, 2006).   In an amended opinion

19   issued nunc pro tunc and filed on September 28, 2006, this

20   Court clarified that its original remand was pursuant to

21   United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994),

22   and that the panel thus retained jurisdiction to rule upon


                                   3
1    the petition on appeal following disposition of the remand.

2    On October 2, 2006 the hold was lifted and the following day

3    the mandate issued.   The BIA later issued an identical

4    precedential opinion, see In re A-M-E- & J-G-U-, 24 I. & N.

5    Dec. 69 (B.I.A. Jan. 31, 2007), publishing as precedent In

6    re Espana-Espinoza & Ucelo-Gomez, A 79 781 430, A 79 781 419

7    (B.I.A. June 19, 2006).3

8        The BIA has fulfilled the terms of our remand by

9    rendering a timely opinion as to whether affluent

10   Guatemalans constitute a particular social group for asylum

11   purposes.   We retained jurisdiction to decide the issues set

12   forth by the petition, and upon further consideration in

13   light of the BIA’s opinion, we now deny the petition.

14

15                              BACKGROUND

16       The facts underlying Mr. Ucelo-Gomez’s and Ms. Espana-

17   Espinosa’s petitions for review are set forth in detail in

18   our previous opinion, see Ucelo-Gomez, 464 F.3d at 165-66,

19   and the reader’s familiarity with it is assumed.


          3
            The BIA’s precedential decision amended its June 19,
     2006 non-precedential decision by making editorial changes
     consistent with its designation of the case as precedent.
     See In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 69 n.1
     (B.I.A. Jan. 31, 2007).
                                    4
1

2                              DISCUSSION

3                                  I

4        “When the BIA issues an opinion, ‘the opinion becomes

5    the basis for judicial review of the decision of which the

6    alien is complaining.’”   Chen v. Gonzales, 417 F.3d 268, 271

7    (2d Cir. 2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655

8    (7th Cir. 2004)).   As we stated in our opinion remanding the

9    case, we grant Chevron deference to a precedential opinion

10   of the BIA if the basic requirements of Chevron are met.

11   See Ucelo-Gomez, 464 F.3d at 170; see also Shi Liang Lin v.

12   U.S. Dep’t of Justice, 494 F.3d 296, 304 (2d Cir. 2007) (en

13   banc) (“When reviewing the BIA’s interpretation of statutes

14   that it administers, we apply the Chevron principles.”).

15   “Under the Chevron standard, we adhere to Congress’ purpose

16   where the INA clearly speaks to the point in question, but

17   if the INA is silent or ambiguous, then we must defer to any

18   reasonable interpretation of the statute adopted by the

19   Board as the entity charged by Congress with the statute’s

20   enforcement.”   Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir.

21   2001) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25

22   (1999)).   Here, after the BIA issued a non-precedential


                                   5
1    decision, the agency subsequently had occasion to issue an

2    identical precedential opinion construing the ambiguous

3    statutory phrase “particular social group.”   We therefore

4    inquire whether the BIA’s construction was a reasonable

5    interpretation of the statute.

6

7                                   II

8        In its precedential opinion, the BIA determined that

9    “affluent Guatemalans” are not a “particular social group”

10   for asylum eligibility purposes.    Referring to the seminal

11   decision of In re Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985),

12   the BIA explained that members of a particular social group

13   must share some common characteristic that members “either

14   cannot change, or should not be required to change because

15   it is fundamental to their individual identities or

16   consciences.”   A-M-E-, 24 I. & N. Dec. at 74 (internal

17   quotation marks omitted).    The BIA went on to consider two

18   factors identified in In re C-A-, 23 I. & N. Dec. 951

19   (B.I.A. 2006): (1) membership in a purported social group

20   requires a certain level of “social visibility” and (2) the

21   definition of the social group must have particular and

22   well-defined boundaries.    A-M-E-, 24 I. & N. Dec. at 74.


                                    6
1    The BIA’s rulings on these points constitute sufficient--and

2    affirmable--holdings.

3           1.   Social Visibility.    In re C-A-’s social visibility

4    requirement is consistent with this Court’s reasoning that a

5    “particular social group is comprised of individuals who

6    possess some fundamental characteristic in common which

7    serves to distinguish them in the eyes of a persecutor--or

8    in the eyes of the outside world in general.”        Gomez v. INS,

9    947 F.2d 660, 664 (2d Cir. 1991).        The BIA’s decision relied

10   heavily upon In re C-A-’s discussion of recent UN Guidelines

11   that indicate that “persecutory action toward a group may be

12   a relevant factor in determining the visibility of a group

13   in a particular society.”        23 I. & N. Dec. at 960 (emphasis

14   omitted).     However (as the BIA stated), although the

15   existence of persecution is a relevant factor, “a social

16   group cannot be defined exclusively by the fact that its

17   members have been subjected to harm . . . .”        A-M-E-, 24 I.

18   & N. Dec. at 74 (emphasis added).        Applying these

19   principles, the BIA considered whether affluent Guatemalans

20   are more frequently targeted by criminals than the rest of

21   the Guatemalan population.        The BIA concluded that they are

22   not:    “[V]iolence and crime in Guatemala appear to be

23   pervasive at all socio-economic levels.”        A-M-E-, 24 I. & N.
                                        7
1    Dec. at 74-75.     Moreover, it matters that the petitioners’

2    self-definition as a social group for asylum purposes

3    depends on no disadvantage other than purported visibility

4    to criminals.     When the harm visited upon members of a group

5    is attributable to the incentives presented to ordinary

6    criminals rather than to persecution, the scales are tipped

7    away from considering those people a “particular social

8    group” within the meaning of the INA.

9        2.   Well-Defined Boundaries.     The BIA reasoned that the

10   terms “wealthy” and “affluent” are highly relative and

11   subjective.     Id. at 76.   As the BIA explained, “wealth or

12   affluence is simply too subjective, inchoate, and variable

13   to provide the sole basis for membership in a particular

14   social group.”     Id.   If “wealth” defined the boundaries of a

15   particular social group, a determination about whether any

16   petitioner fit into the group (or might be perceived as a

17   member of the group) would necessitate a sociological

18   analysis as to how persons with various assets would have

19   been viewed by others in their country.      The BIA also noted

20   that if one defined “affluent” to include all of those

21   Guatemalans who did not live in poverty, the group would

22   make up twenty percent of the population.      A-M-E-, 24 I. &



                                      8
1    N. at 76 & n.8.4   Moreover, because money attracts thieves

2    in the ordinary course, and more money attracts more and

3    better thieves, it would be impractical for IJs to

4    distinguish between petitioners who are targeted or held to

5    ransom because of their class status or merely because

6    that’s where the money is.

7        The BIA’s analysis is consistent with existing BIA

8    precedent holding that harm motivated purely by wealth is

9    not persecution.   See In re V-T-S-, 21 I. & N. Dec. 792,

10   798-99 (B.I.A. 1997), cited by A-M-E-, 24 I. & N. at 72.

11   Our own precedent validates the idea that class status does

12   not establish a social group with sufficient particularity.

13   See Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 240 (2d

14   Cir. 1992) (holding that “poor” Yemeni Muslims are not a

15   particular social group because the group “posses[es]

16   broadly-based characteristics”).   The BIA’s interpretation


          4
            Like the petitioners, we agree that a large group can
     be a “particular social group”; the BIA must not mean that a
     group’s size can itself be a sound reason for finding a lack
     of particularity. Instead, we interpret the BIA’s
     observation as merely illustrating how “the concept of
     wealth is so indeterminate,” id. at 76--the purported social
     group could vary from one to twenty percent of the total
     population. This indeterminacy is a relevant consideration
     in light of In re C-A-’s concerns about groups that are “too
     loosely defined to meet the requirement of particularity.”
     In re C-A-, 23 I. & N. Dec. at 957.
                                   9
1    of the statutory phrase “particular social group” as

2    excluding affluent Guatemalans was therefore reasonable.

3

4                                   III

5        The petitioners argued in their brief to the BIA on

6    remand that “their political beliefs are imputed to them by

7    virtue of their wealth[,] i.e. they must support the status

8    quo as it protects the wealth they have accumulated.”      Pet’r

9    BIA Br. 4.     But the petitioners cited no evidence in the

10   record that supports this assertion.     As the BIA correctly

11   concluded, nothing indicated that the individual or

12   individuals who threatened petitioners “had any motive other

13   than increasing their own wealth at the expense of” the

14   petitioners.     A-M-E-, 24 I. & N. at 76.   It was therefore

15   correct for the BIA to hold that the petitioners failed to

16   meet their burden of proof in showing any evidence of a

17   motivation for persecution other than membership in a

18   particular social group.

19

20

21

22                               CONCLUSION


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1       For the foregoing reasons, we deny the petition for

2   review.




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