12-4987-ag
Silvana Paloka v. Eric H. Holder, Jr.

                               UNITED STATES COURT OF APPEALS

                                        FOR THE SECOND CIRCUIT

                                           August Term 2013

Heard: May 21, 2014                                      Decided: August 7, 2014

                                        Docket No. 12-4987-ag

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SILVANA PALOKA,
     Petitioner,

                            v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
     Respondent.
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Before: NEWMAN, WALKER, and CABRANES, Circuit Judges.

         Appeal from the December 4, 2012, order of the Board of

Immigration Appeals dismissing Petitioner’s application for

asylum and other relief.                      Petitioner challenges the rejection

of her claim that she was persecuted on account of membership

in a particular social group.

         VACATED and REMANDED.



                                              Kai W. De Graaf, New York, NY, for
                                                Petitioner.

                                              Margot L. Carter, Trial Attorney,
                                                Office of Immigration
                                                Litigation, Washington, D.C.,
                                                (Stuart F. Delery, Assistant
                                                Attorney General for the Civil
                                       Division of the U.S. Department
                                       of Justice, Leslie McKay,
                                       Assistant Director of the Office
                                       of Immigration Litigation,
                                       Washington, D.C., on the brief),
                                       for Respondent.



JON O. NEWMAN, Circuit Judge.

    The     primary      issue    on   this    appeal    is   whether   “young

Albanian women” or “young Albanian women between the ages of

15 and 25" qualify as a “particular social group” for asylum

purposes.        8 U.S.C. § 1101(a)(42)(A).              Petitioner Silvana

Paloka appeals from the December 4, 2012, order of the Board

of Immigration Appeals (“BIA”) dismissing her application for

asylum and other relief.           See In re Silvana Paloka, No. A093-

341-960 (B.I.A. Dec. 4, 2012).

            In    view    of     the   BIA’s    two     recent   precedential

decisions clarifying its interpretation of “particular social

group” for asylum purposes, we will remand so that the BIA may

determine, in the first instance, whether Paloka’s proposed

social groups qualify for asylum purposes.

                                  Background

            After arriving in the United States, Paloka, a native

of Albania, timely applied for asylum.                She was then nineteen

years old and unmarried.           The Immigration Judge (“IJ”) deemed


                                        -2-
Paloka credible; therefore, we use her testimony and the IJ’s

factual findings to set forth the facts of her case.

          Facts of alleged persecution. Paloka’s parents lived

in Berdice, Albania, in a section of town that had previously

been sectored off as a camp for those who had spoken out

against the communist regime.          Her parents and grandparents

had been persecuted for their anti-communist stance from the

1960s to the fall of the communist regime in the early 1990s.

The family’s land was taken and her grandparents were interned

in the camp in 1965.     Her father was disabled from a beating

by government agents in 1985. Paloka was born in the camp in

1989.

          When   she   was   eighteen,    Paloka   got   a    job   as   a

hairdresser in the nearby town.          She walked a considerable

distance to get to and from her home.              In 2008, on three

separate occasions during trips to and from work, Paloka was

pressured to become a prostitute.         The first occurred in May

2008.   Paloka was returning home from work when a man she had

never seen before approached her.         He said he wanted to meet

her parents, marry her, and take her to Greece.              Paloka said

she was not interested and began to walk home, but the man

said she would see him again.      He got into a police car, and

it drove off.    Paloka told her employer, Rita Mendoja, about
                                 -3-
the incident and was allowed to leave work earlier when the

streets were less deserted.

            In June 2008, a police car stopped beside Paloka

while she was walking home.        Two men got out of the car, one

in a police uniform and the other in civilian clothes. Paloka

recognized the man in civilian clothes as the man who had

stopped her in May.     The man in the police uniform told Paloka

that he knew her family was not from the area, her family had

been persecuted in the past, her parents were disabled, and

her   brothers   were   too    young    to   protect   her.      He   then

threatened to kill her and her family if she did not accede to

the wishes of the other man.        Paloka understood that the men

wanted to sell her into prostitution.           At that moment, three

of Paloka’s neighbors happened to pass by and provided her

with a ride home.

            Two days after the second incident, Paloka met with

both a local official and a village leader to inform them of

the incident and request protection.           Both leaders said that

they could not help her.

            A third incident occurred in July 2008.           Paloka left

work late at 8:30 p.m.        For this reason, Mendoja accompanied

her home.    On the road, the women saw a police car stopped on



                                  -4-
an empty road.     The same two men who had threatened Paloka

previously stepped out of the car. They grabbed Paloka by her

arms and hair and kicked her.         Mendoja screamed and tried to

fight with them.    The men tried to push Paloka into the police

car.     During the struggle, an armed shepherd came on the

scene.     The   shepherd   pointed    his   rifle   at   the   men   and

threatened to kill them unless they let Paloka and Mendoja go.

The two men got back into the police car and departed.                The

shepherd accompanied the women to Paloka’s home.

           Paloka told her parents about the final incident, and

they all agreed that she should go live with her aunt and

uncle in the main city of Shkoder until she could leave the

country.    Paloka did so, and left Albania and came to the

United States in August 2008.

           Administrative proceedings. Before the IJ, Paloka

testified that she would be afraid to live anywhere in Albania

because the threat of human trafficking for prostitution

existed everywhere in the country. The 2008 State Department

Trafficking in Persons Report (“Trafficking Report”) states

that most Albanian sex trafficking victims are women and girls




                                -5-
between the ages of 15 and 25.1          The Report also notes that

“[t]he Government of Albania does not fully comply with the

minimum standards for the elimination of trafficking; however,

it is making significant efforts to do so.” Trafficking Report

60. Specifically, the Report noted a concern that “public

officials     .   .   .   participated   in   or   facilitated   human

trafficking.”     Id.     At Paloka’s hearing, the IJ observed that

“forced . . . prostitution through sex trafficking . . .

occurs relatively often in Albania[,] which is recognized as

one of the countries where this is more common than many other

countries.”

            To bring her generalized sex trafficking claim within

the required category of a “particularized social group”

Paloka asserted membership in three groups: “unmarried women,”

“young women in Albania,” and “unmarried young women in

Albania.”     At oral argument, she suggested that her third

group could be narrowed by a specific age limitation of 15 to

25 years.




     1
      The report can be found online. See 2008 U.S. Department of
State, Trafficking in Persons Report (2009), available at
http://www.state.gov/j/tip/rls/tiprpt/2009/ (last accessed June 6,
2014, and available in Clerk of Court’s case file).

                                   -6-
            The   IJ   denied    Paloka’s    application   for   asylum,

withholding of removal, and protection under the Convention

Against Torture.       The IJ provided two alternative reasons for

denying Paloka’s claim of membership in a “particular social

group.”     First, the IJ determined that all of her proposed

groups were “too broad.”         Second, the IJ decided that Paloka

was   not   targeted     “on    account   of”    her   membership   in   a

particular social group but instead because she was a “good

target for criminal opportunistic behavior.”

            The BIA did not reach the question of whether the

incidents amounted to persecution.              Instead, the BIA stated

that the proposed groups were “not defined with sufficient

particularity to be cognizable particular social groups.” The

BIA also rejected her alternative social group based on her

family’s political ties because Paloka had not shown that she

was targeted on account of her family’s political history;

instead, the BIA concluded that she “was approached because

she was a good target for criminal opportunistic behavior.”

                                Discussion

I. Standard of Review and Statutory Scheme

            Because the BIA did not expressly adopt the IJ's

decision, but “its brief opinion closely track[ed] the IJ's



                                    -7-
reasoning,” we have reviewed the opinions of both the IJ and

the BIA “for the sake of completeness.” Zaman v. Mukasey, 514

F.3d 233, 237 (2d Cir. 2008) (internal quotation omitted). We

review   factual    findings   under      the    substantial    evidence

standard, treating them as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B).      Questions of law, as well as the

application of legal principles to undisputed facts, are

reviewed de novo. See Guan Shan Liao v. United States, 293

F.3d 61, 66 (2d Cir. 2002).

          To establish eligibility for asylum or withholding

of removal, an applicant must show persecution, or fear of

persecution,   on   account    of    race,      religion,   nationality,

membership in a particular social group, or political opinion.

See 8 U.S.C. §§ 1101(a)(42); 1231(b)(3).           Direct governmental

action is not required for a claim of persecution.               Private

acts can constitute persecution if the government “is unable

or unwilling to control it.”        Rizal v. Gonzales, 442 F.3d 84,

92 (2d Cir. 2006); see also Pavlova v. I.N.S., 441 F.3d 82, 85

(2d Cir. 2006).      To succeed on a particular social group

claim, the applicant must establish both that the group itself

was cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73



                                    -8-
(2d Cir. 2007), and that the alleged persecutors targeted the

applicant “on account of” her membership in that group, see 8

U.S.C. § 1101(a)(42)(A).

           Paloka contends that her membership in a particular

social group is the reason she has been persecuted and the

reason she fears future persecution.          The primary question in

this case is whether the social group she has described

satisfies the statutory standard of section 101(a)(42)(A) of

the    Immigration   and   Nationality   Act     (“INA”),    8    U.S.C.

§     1101(a)(42)(A).      Courts    review    de   novo    the    legal

determination of whether a group constitutes a “particular

social group” under the INA.        See, e.g., Cece v. Holder, 733

F.3d 662, 668 (7th Cir. 2013) (in banc); Ayala v. Holder, 640

F.3d 1095, 1096-97 (9th Cir. 2011); Castaneda-Castillo v.

Holder, 638 F.3d 354, 363 (1st Cir. 2011).

II. BIA’s Interpretation of “Particular Social Group”

           Congress did not define “membership in a particular

social group” in the INA, as the BIA has recognized, see In re

M-E-V-G-, 26 I. & N. Dec. 227, 230 (B.I.A. 2014) (“M-E-V-G-”).

The BIA has interpreted this phrase through a series of

precedential opinions.     See M-E-V-G-, 26 I. & N. Dec. at 231-


                                -9-
33 (collecting cases).                 We give the BIA interpretations

Chevron deference because the statutory phrase is vague.                     See

Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc.,

467 U.S. 837, 842–43 (1984); cf. Scialabba v. Cuellar de

Osario, 134 S. Ct. 2191, 2203-07 (2014) (plurality opinion);

see also Ucelo-Gomez, 509 F.3d at 72.

              The BIA’s attempts to give meaning to “particular

social group” began in 1985.              The first decision interpreted

“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.”          In re Acosta, 19 I & N Dec. 211, 233 (B.I.A.

1985).    Additionally, the common characteristic that defines

the group “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.”

Id.

              The   BIA     has    clarified      its       interpretation    by

specifying two additional factors that a qualifying social

group must have, “social visibility” and “particularity.” See

M-E-V-G-, 26 I. & N. Dec. at 232 (interpreting                  In re C-A-, 23



                                        -10-
I. & N. Dec. 951, 959-61        (B.I.A. 2006)).    Under these

additional requirements, the BIA explained, the particular

social group in question must have “well-defined boundaries”

and be “‘recognizable’ as a discrete group by others in the

society.” Id. (quoting and interpreting In re A-M-E- & J-G-U-,

24 I. & N. Dec. 69, 74-76 (B.I.A. 2007)).

           In response to a Third Circuit decision that declined

to afford deference to the BIA’s view of the “particularity”

and “social visibility” requirements, see Valdiviezo-Galdamez

v. Attorney General of U.S., 663 F.3d 582 (3d Cir. 2011), the

BIA clarified its interpretation of “particular social group”

in two companion cases decided after the pending petition for

review was filed: M-E-V-G- and In re W-G-R-, 26 I. & N. Dec.

208 (B.I.A. 2014) (W-G-R-”).     M-E-V-G- summarized the BIA’s

criteria for identification of ”particular social group” as

follows:

           (1) composed of members who share a common
           immutable characteristic,
           (2) defined with particularity, and
           (3) socially distinct within the society in
           question.
M-E-V-G-, 26 I. & N. Dec. at 237.




                              -11-
                  The   reformulated     test   and   accompanying    analysis

clarified several issues.              First, the BIA renamed the “social

visibility” requirement as “social distinction.”                    Id. at 236.

It stressed that this requirement “was never intended to, and

does not require, literal or ‘ocular’ visibility.”                        Id. at

234.2       “To be socially distinct, a group need not be seen by

society; rather, it must be perceived as a group by society.

Society can consider persons to comprise a group without being

able to identify the group’s members on sight.”                     Id. at 240

(internal citation omitted).

                  As to the particularity requirement, the BIA stressed

that        the    social   group   in    question     “must   be   defined   by

characteristics that provide a clear benchmark for determining

who falls within the group.”                Id. at 239.        “The group must

also be discrete and have definable boundaries – it must not

be   amorphous,          overbroad,      diffuse,     or   subjective.”       Id.

“Societal           considerations,”        the     BIA    explained,      “will

necessarily play a factor” in determining whether a group “is

        2
      As the BIA explained: “Contrary to our intent, the term
‘social visibility’ has led some to believe that literal, that is,
‘ocular’ or ‘on-sight,’ visibility is required to make a particular
social group cognizable under the Act. See Valdiviezo-Galdamez, 663
F.3d at 606-07.” M-E-V-G-, 26 I. & N. Dec. at 236.




                                         -12-
discrete or is, instead, amorphous.” W-G-R-, 26 I. & N. Dec.

at 214.

           The     BIA     also   clarified         that     in    determining

particularity and social distinction what matters is whether

society as a whole views a group as socially distinct, not the

persecutor’s perception.          M-E-V-G-, 26 I. & N. Dec. at 242.

Although   a     persecutor’s     perception       can     be   indicative    of

whether society views a group as distinct, a persecutor’s

perception alone is not enough to establish a cognizable

social group. See id. “Persecutory conduct aimed at a social

group   cannot     alone    define    the    group,        which   must   exist

independently of the persecution.”                 W-G-R-, 26 I. & N. Dec.

at 215. Of course, the BIA emphasized, persecution can be the

“catalyst” for a group of individuals to “experience a sense

of ‘group’” and for society to “discern that this group of

individuals . . . is distinct in some significant way.”                     M-E-

V-G-, 26 I. & N. Dec. at 243.            And, the BIA continued, there

must be an “immutable characteristic [that] exists independent

of the persecution.”        Id.

           After an individual shows that she is a member of a

cognizable     social    group,    she      must    demonstrate      that    the



                                     -13-
persecution   was   “on    account     of”   her     membership    in   that

particular social group. See         W-G-R-, 26 I. & N. Dec. at 223.

Whether the requisite nexus exists “depends on the views and

motives of the persecutor.”       Id. at 223-24.

          Circuit case law before the BIA’s recent decisions

was not consistent.       Most pertinent to the pending case, with

respect to an asylum applicant fearing being forced into

prostitution, the Seventh Circuit had approved a group of

young women living alone in Albania, Cece, 733 F.3d at 671,

and the Sixth Circuit had rejected as too “generalized” and

“sweeping” a claimed group of “young (or those who appear to

be young), attractive Albanian women who are forced into

prostitution,” Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th

Cir. 2005).   In a non-precedential decision, our Court found

it   unnecessary    to    adjudicate    a    group    defined     as    young

unmarried Albanian women, see Gjura v. Holder, 502 F. App’x,

91 (2d Cir. 2012), for lack of evidence of a nexus to the

alleged group, see id. at 92.

           Several circuit decisions have divided on whether

other proposed      groups of women qualified as a “particular

social group.” Compare Sarhan v. Holder, 658 F.3d 649, 654



                                 -14-
(7th Cir. 2011) (approving proposed group of women who “in

accordance with social and religious norms in Jordan, are

accused of being immoral criminals and, as a consequence, face

the prospect of being killed without any protection from the

Jordanian government”), Al-Ghorbani v. Holder, 585 F.3d 980,

996 (6th Cir. 2009) (approving proposed group of women who

opposed the repressive and discriminatory Yemeni cultural and

religious customs that prohibit mixed-class marriages and

require paternal consent for marriage), Agbor v. Gonzales, 487

F.3d 499, 502 (7th Cir. 2007) (approving proposed group of

woman who are opposed to and fear genital mutilation), and

Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir. 2002)

(approving proposed group of Christian women in Iran who do

not wish to adhere to the Islamic female dress code), with

Rivera-Barrinetos v. Holder, 666 F.3d 641, 653 (10th Cir.

2012) (rejecting proposed group of Salvadoran women between

ages 12 and 25 who resisted gang recruitment for lack of

evidence that group is perceived to be a distinct social group

in El Salvador), Kante v. Holder, 634 F.3d 321, 327 (6th Cir.

2011) (rejecting proposed group of women subjected to rape as

a method of government control in part because of proposed

group’s generalized and far reaching nature), Faye v. Holder,



                             -15-
580 F.3d 37, 42 (1st Cir. 2009) (rejecting proposed group of

“women   who    had    a    child      out     of    wedlock/are    considered

adulterers because they gave birth to a child allegedly not

their husband’s/have been abused by their husbands” for lack

of   evidence   that   group      is    a     recognized   social    group   in

Senegal), and Sharif v. INS, 87 F.3d 932, 936 (7th Cir. 1996)

(stating that the cognizability of a group of Iranian women

who had become “westernized” while living in the United States

was “debatable at best”).

II. Consequence of BIA Clarification

          M-E-V-G-         and   W-G-R-       have    clarified     the   legal

landscape for adjudicating “particular social group” claims.

Although we are not presented with the paradigmatic situation

requiring a remand – where an agency has not made any decision

on the pertinent issue, see Gonzales v. Thomas, 547 U.S. 183,

186 (2006); Immigration & Naturalization Service v. Ventura,

537 U.S. 12, 17 (2002); Ucelo-Gomez v. Gonzales, 464 F.3d 163,

169-70 (2d Cir. 2006), remand is appropriate in this case

following the agency’s clarification of its approach to that

issue.   Cf. NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d

Cir. 1995) (remand following intervening change of policy).



                                       -16-
“[E]very consideration that classically supports the law’s

ordinary remand requirement does so here.       The agency can

bring its expertise to bear upon the matter; it can evaluate

the evidence; it can make an initial determination; and, in

doing so, it can, through informed discussion and analysis,

help a court later determine whether its decision exceeds the

leeway that the law provides.”       Ventura, 537 U.S. at 17.

         The new clarifying opinions are important for cases,

like Paloka’s, that straddle the line between individuals

threatened by state-sponsored or state-condoned criminality on

account of their membership in a particular social group and

individuals threatened only because they live in a country

with pervasive criminality.     While continuing to emphasize

that a particular social group is not cognizable merely

because “‘members have been subjected to harm,’” see M-E-V-G-,

26 I. & N. Dec. at 242 (quoting In re A-M-E- & J-G-U-, 24 I &

N. Dec. 69, 74 (B.I.A. 2007)), the BIA stressed that the

“shared trait of persecution does not disqualify an otherwise

valid social group” and that persecution can be the “catalyst”

for societal recognition. See id. at 243.

         In this case, the IJ noted that it seemed that “the

factors [Paloka] relied upon [as] constituting the elements of


                              -17-
her particular social group are those elements which make her

a good target for criminal opportunistic behavior.”    However,

being a victim of a crime or even being a likely target for

criminal opportunistic behavior does not necessarily preclude

the existence of a valid asylum claim if the claimant would

likely be targeted because of her membership in a sufficiently

defined social group. See M-E-V-G-, 26 I. & N. Dec. at 243;

see also Cece, 733 F.3d at 671-72. Indeed, those facing

persecution may often be the most vulnerable to crimes,

especially   if   the   government   condones   or    aids   the

perpetrators.

         Instead of focusing on the perpetrator’s views, the

recent precedential opinions emphasize that the first step of

the analysis — whether the group is cognizable — focuses

primarily on how the society in which the group exists views

the group.   Only at the second step of the analysis — whether

the persecution was “on account of” the victim’s status as a

member of the group — does the perpetrator’s mindset become

the center of attention.

         The groups proposed by Paloka based on age and gender

require reconsideration in light of the BIA’s new precedential



                             -18-
decisions, and that reconsideration would benefit from a

somewhat more extended analysis of Paloka’s claim than has

thus far occurred. That analysis might, for example, consider

the Seventh Circuit’s observation that both gender and youth

are   immutable   characteristics     that   fit   within   the   broad

definition set out in Acosta, 19 I. & N. Dec. at 233. See

Cece, 733 F.3d at 671.    The BIA might also explain whether it

accepts the IJ’s view that the happenstance arrivals of

helpful neighbors and a shepherd to extricate Paloka from a

dangerous situation indicate that she will not be at risk in

the future.3

          A final reason for remand is that Paloka has refined

her particular social group during her appeal.          In M-E-V-G-,

the BIA remanded to the IJ, in part, because the petitioner’s

“proposed particular social group has evolved during the

pendency of the appeal.”     26 I. & N. Dec. at 252. Here, too,


      3
      We can safely assume that on reconsideration the BIA will not
embrace the IJ’s view that to show a “probability” of future
persecution, which he defined as a 50 percent likelihood, Paloka
had to present evidence that half of all unmarried young Albanian
women are being forced into prostitution. See IJ Opinion 19.
Probability of facing persecution does not require a probability of
50 percent. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)
(probability of “well-founded fear” of facing persecution may be as
little as ten percent); Kyaw Zwar Tum v. U.S.I.N.S., 445 F.3d 554,
565 (2d Cir. 2006) (same).


                               -19-
the petitioner has refined the contours of her proposed social

group during the proceedings to include a specific age range

of 15 to 25, a range that finds support in the evidence. See

Trafficking Report 2008 U.S. State Department Trafficking in

Persons        Report         (2009),           available            at

http://www.state.gov/j/tip/rls/tiprpt/2009/           (last     accessed

June 6, 2014, and available in Clerk’s Office file).                This

group can be evaluated on remand because it is a subclass that

is “specific” and “subsidiary” to the broader class first

proposed. See Steevenez v. Gonzales, 476 F.3d 114, 117 (2d

Cir. 2007); cf. Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005).

          We conclude that it is necessary to remand to the BIA

for a redetermination of whether Paloka has identified a

cognizable   social   group   in   light   of   the     BIA’s     recent

clarifications.4 Of course, in remanding for reconsideration,

we make no determination as to whether Paloka has identified



     4
      There is no need to remand Paloka’s claim that she was
persecuted because of her status as a young, unmarried women who is
a member of family that was persecuted by the former communist
regime. Neither the BIA nor the IJ denied that claim based on a
failure to establish a cognizable social group. Rather it appears
that they assumed that the group could be cognizable but found that
there was nothing in the record to indicate that she was targeted
because of her family’s political beliefs or previous persecution.
Paloka fails to show that there is substantial evidence to compel
the opposite conclusion.


                               -20-
or can identify a qualifying “particular social group,” nor

whether she can discharge her burden to prove by credible

evidence    that   she   was    persecuted   or   reasonably   fears

persecution “on account of” her membership is such a group,

see 8 U.S.C. § 1101(a)(42)(A).

                               Conclusion

           Accordingly, the decision of the BIA is vacated, and

the case is remanded for reconsideration.




                                  -21-
