The Tenth Circuit Court of Appeals issued its opinion in Rodas-Orellana v. Holder on Monday, March 2, 2015.
Benjamin Rodas-Orellana entered the United States on or around September 6, 2006, when he was 17 years old, and DHS commenced removal proceedings on September 16, 2006. Mr. Rodas-Orellana appeared before an IJ on August 28, 2007, and conceded removability but applied for asylum and withholding of removal, indicating he sought to escape poverty and gang violence in El Salvador. Mr. Rodas-Orellana specifically contended that the MS-13 gang had pressured him to join in the past and he had resisted, and this constituted a well-founded fear of persecution because of his membership in a particular social group, specifically young Salvadoran males who refused to join the gang.
On June 28, 2012, the IJ denied Mr. Rodas-Orellana’s applications for asylum and withholding of removal, finding that although Mr. Rodas-Orellana had suffered in the past at the hands of gang members, he had indicated no reason for him to be targeted by gang members other than their general desire to control the population in their areas. The IJ further concluded that Salvadoran youth who have resisted recruitment by gangs do not constitute a particular social group. Mr. Rodas-Orellana appealed to the BIA, who rejected his appeal in a January 22, 2014 final order of removal. The BIA agreed with the IJ that Mr. Rodas-Orellana’s rejection of gang membership did not place him in a particular social group, and also that perceived American nationality did not constitute a particular social group. On March 11, 2014, Mr. Rodas-Orellana filed a motion to reconsider with the BIA in light of two recent decisions, but the BIA denied his motion on May 1, 2014. On June 13, 2014, Mr. Rodas-Orellana filed a motion to consolidate his two BIA appeals, which the Tenth Circuit granted.
The Tenth Circuit reviewed the two BIA denials to consider (1) if the BIA erred in determining Mr. Rodas-Orellana was not a member of a particular social group, in light of recent BIA decisions on the issue, and (2) if the BIA erred in determining Mr. Rodas-Orellana was not persecuted based on his membership in a particular social group.
The Tenth Circuit first examined the BIA’s interpretation of the term “particular social group,” especially in light of the two recent BIA decisions narrowing its definition. The Tenth Circuit determined that a group need not be literally visibly distinguishable to constitute a “particular social group” but must have some special characteristic enabling recognition of group members. The Tenth Circuit found Mr. Rodas-Orellana failed to prove that his proposed group of young Salvadoran males who resist gang membership is socially distinct. The Tenth Circuit’s 2012 decision in Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012), where a young Salvadoran female who resisted gang membership was denied asylum, controlled as to Mr. Rodas-Orellana. Although the record reflected that gang activity is not well controlled in El Salvador, nothing suggested that Mr. Rodas-Orellana belonged to a group more susceptible to gang violence than general members of the population.
The Tenth Circuit denied Mr. Rodas-Orellana’s petition for review, finding no evidence that Mr. Rodas-Orellana was a member of a particular social group or that he was persecuted because of that membership.