F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

W I L F R E D O G A R

A Y R E Y E S , P etitioner
,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent. N o. 14-70686

Ag ency No. A094-330-535

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted April 6, 2016 Seattle, W a shing ton

F iled November 30, 2016

B efore: Michael Daly

Hawkins, J ohnnie B . Rawlinson, and Consuelo M. Callahan, Circuit J udg es.

Opinion by

J udg e CallahanR E Y E S V

. L Y N C H 2

SUMMARY *

Im m igration

Granting in part and deny ing in part a petition for r eview of the B oard of I mmig r ation A ppeals’ decision affirming the denial of withholding o f removal a n d p rotection under the Convention Ag a inst Torture, the p anel a f f orded Chevron deference to the B oard’s articulation in Matter of W –G– R

– , 2 6 I

. & N. Dec. 208 (B I A 2014) and Matter of M–E–V–G

– , 26 I

. & N. Dec. 227 (B I A 2 014) of its “ p a r t i c u larity ” a nd “so c i a l d i s t i n c t i o n ” r e q u i r e m e n t s f o r d em o n s t ra t i n g membership in a “particular social g roup ” f o r purposes o f withholding relief, but he l d t h a t the B oard applied an impermissible standard of r eview in assessing the request for CAT relief.

The panel held that the B oard’ s c o nstruction o f the “particularity

” requirement, which focuses on w hether the
g roup is d iscrete or is, instead, amorphous, is reasonable a nd consistent with its own precedent, which h a s long r equired that a particular social g roup ha v e clear boundaries and that its characteristics have commonly accepted definitions.

The panel held that the B oard’s a r ticulation of its “social distinction” requirement, which requires evidence sho w i n g that society in g enera l perceives, c onsiders, or recog niz e s persons sharing

the particular characteristic to be a g roup, is also reasonable.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R E Y E S V

. L Y N C H 3

Apply ing that framework, the p an e l held that the B oard reasonably determined that petitio n e r ’s proposed particular social g roup of “ former members o f Mara 18 ga n g ” lacks particularity a

nd social dis t i n c tion, and that his proposed social g roup of “deportees from the U nited States to El Salvador” lacks particularity

.

T h e panel remanded the CAT claim to allow the a ge n c y to reconsider the application for CAT relief recog niz ing that killing s can constitute torture, and to undertake the requisite fact findingin accordance with the ag ency ’s regulations.

COUNSEL

A n n e Dutton (arg

ued) a nd Z achary A. Albun, Studen t Attorney s; B enjamin Richard Casper, Supervising Attorney ; University of Minnesota L aw S chool, Center for New A m e r i c a n s , F e d e r a l I m m i g r a t i o n Li t i g a t i o n C l i n i c , Minneap o l i s, Minnesota; Alma David, Global J ustice L aw Group, PL L C, Seattle, W ashing ton; for Petitioner.

W

. Manning Evans (arg ued) and Susan B

. G reen, Senior L itig ation Counsel; Be njamin C. Miz er, Principal Deputy Assistant Attorney G e n eral; Office of I mmig ration L itig ation, Civil Division, United States D epartment of J u stice, W a shing ton, D.C.; for Respondent.

L

. Rachel L e rman , Ba rnes & Thornburg L L P, L os Ang eles, California; Chris B a

y h, B arnes & Thornburg L L P, I n d i a n a p o lis, I ndi a n a; f o r A m i c u s C u r i a e Ha r v a r d I mmig r a tion and Refug ee Clinical Prog ram.R E Y E S V

. L Y N C H 4

F atma E

. M a r ouf, Associate Professor of L aw, L as Veg as, Nevada, as and for Amicus Curiae I m m i g r ation Clinic, University of Nevada, L as Veg as, W illiam S. B oy d School o f L aw.

B rook Dooley and Sophie Hood, Keker & Van Nest L L P, San F rancisco, California, for Amici Curiae L awy ers’ Committee for Civil Rig hts of the San F rancisco B ay Area, Ce n t er for Gender & Refug e e Studies, and America n I mmig r ation L awy e rs Association.

OP INION

CAL L A HAN, Circuit J udg e:

W ilfredo Garay Rey es, a native and citiz en of El Salvador, petitions for review of a preceden t i a l B oard o f I mmig r a tion A ppeals (“B I A”) opinion in Matter of W

– G–R–
, 26 I

. & N. Dec. 208 (B I A 2014), wherein the B I A dismissed Garay ’s appeal from an I mmig ration J udg e’s (“I J ”) denial o f Garay ’s applications for withholding of rem o v a l and relief from removal under Article 3 o f t h e Convention Ag ainst Torture (“CAT relief”). 1 G aray claims he is entitled to withholding of removal b ecause, if remov e d to El Salvador, he will more likely than not face persecution on account o f his membership in a particular social g roup consistin g o f “former m e m b e r s o f the Mara 1 8 g ang in El Salvador w ho have renounced their g ang membership” and, alternatively
, a

1 W ith h o l d i n g o f rem o v al, 8 U.S.C. § 1 2 3 1 (b )(3 ), an d p ro tectio n ag ain st rem o v al u n d er A rticle 3 o f t

h e Co n v en tio n A g ain st T o rtu re (“ CA T ”), 1 4 6 5 U.N.T .S. 8 5, G.A

. R es. 3 9 /4 6, 3 9 t h S e s s

. , U .N. GA OR Su p p . No . 5 1 , at 1 9 7 , U.N. Do c. A /3 9 /5 1 (1 9 8 4 ).R E Y E S V

. L Y N C H 5

gr o u p consisting o f deportees f rom the United States to E l Salvador. G aray also maintains that he is entitled to C AT relief because he faces a clear probability of torture from the Mara 18 g ang , Salvadoran d eath squads, and Salvadoran
g overnment actors.

W e h ave jurisdiction under 8 U .S.C. § 1 252. W e deny Garay ’s petition in co n n e c t ion with his claims for

w ithholding of removal. W e conclude that the BI A ’s articulation of its “particularity ” and “social distinction” requirements for demonstrating membership in a “particular social g roup” are entitled to Chevron defere n c e. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
, 467 U.S. 837, 844 (1984). W e a lso con c l u d e that the B I A reasonably determined that Garay ’s proposed particular social g roups o f “ fo rmer members of Mara 18” a nd “deportees from the United States to E l S a l vador” are not cog niz able. However, because the I J com m i t t e d leg al error and the B I A e mploy ed an impermissible s t an d ard of r eview in assessing Garay ’s request for CAT r elief, we g rant G aray ’s petition with respect to the denial of his CAT claim.

I

A

I n 2000, at the ag e of seventeen, Garay joined the Mara 18 g an g in El Salvador. Upon joining Mara 18, Garay participated in three to five robberies of wealthy ranche r s. F our months a fter Garay joined the g ang , a n e w a nd more violent leader, nam e d F rancisco, took over, and the g ang

c o mmitted a string of armed bank r obberies under h i s leadership. Garay
, armed with a g un, s er v ed as a driver for two or three heists.R E Y E S V

. L Y N C H 6

Disenchanted with F rancisco’s l e adership sty le and not wishing to b e f

u r t her involved in bank robberies, Garay decided to leave the g ang after being a member for less than

a y ear. Garay went into hiding
, moving to another t o w n

. Garay feared retribution or reprisals from F rancisco, who h ad previously announced that a ny one try ing to leave could be punished with beating s or death.

After Garay fled, F rancisco found Garay and shot him in the leg

. Some months later, Garay was c o n f r o nted in a billiard h all by machete-wielding assailants. H e defended himself w ith his own machete and a handg un. I n l a t e 2 000, Garay had his g ang tattoo r emoved. Shortly thereafter, Garay left El Salvador and made his way to the United States.

Garay entered the United St a tes without inspection in May 2001, a t ag e eig h teen. Now thirty -three y ears o ld, Garay has a wife and two daug hters. There is n o i n dication that Garay has been involved with g ang s since entering the United States.

B

O n March 25, 2009, I mmig r ation and Custo m s Enforcement (“I CE”) issued a N otice to Appear, alleg ing that Garay was unlawfully p resent a nd should be removed. Garay conceded removability as charg ed. G aray , r epresented b y counsel, testified before the I J on J anuary

14, 2010.

F ollowing the hearing
, the I J issued an oral deci s i o n , in which he found Garay

credible. The I J p retermitted G aray ’s application for asy lum because it had not been filed within a y ear of his entry

into the United States.R E Y E S V

. L Y N C H 7

Addressing Garay ’s withholding claim, the I J concluded that, althoug h Garay

had been subjected to persecution in El S al vador, h e had not established that he was persecuted o n account of his membership in a particular social gr o up consisting of “former membe r s of Mara 18 in El Salvador

w h o have renounced their g ang membership.” The I J n oted Garay ’s four-to-six month active membership in Mara 18 a nd reasoned that “[ a] lthoug h the respondent has clearly indicated that he wishes to renounce h is g ang membership, he cannot disassociate himself from the volitional activities with which he was involved as a member of t h e M ara 18 g ang

. ” The I J also noted that Garay had submitted backg round materials “which indicate that El Salvadoran g ang s may have multiple motivations and modus operandi in their particular g roups.”

Deny ing Garay ’ s withholding claim, the I J cited A rteaga

v. Mukasey
, 511 F .3d 940 ( 9th Ci r

. 2 0 07), and Matter of E–A–G–
, 24 I

. & N. Dec. 591 (B I A 2008), as authority f or the proposition that membership in a violent crimin a l g ang cannot serve as the basis for a particular social g roup. The I J did not address whether Garay had demons t r ated a nex us to his purported membership in a social g r oup. The I J also did
not address Garay ’s a lternative p roposed social g ro u p o f “deportees from the United States to El Salvador.”

Addressing Garay ’s claim for CAT relief, the I J noted that Garay had testified that h e feared arrest by the police and that he could be subject to r eprisals from his former fellow g ang members if removed to El Salvador. The I J concl u ded that Garay had not shown a likeli h o o d that he would be arrested because G aray had failed to demonstrate that the police have been searching for him or that he had been charg ed with any crimes in El Salvador. Reg arding reprisals from the g a ng , the I J stated that G aray had “ sug g ested in his written a pplicationR E Y E S V

. L Y N C H 8

for relief that if he is located b y his former g ang that he could b e subject to various brutal forms of treatment, includi n g having a tire placed o n him being filled with ga soline.” However, the I J observe d t hat Garay had not mentioned his fear of that specific threat during his h earing
, but h ad

“ i n dicated that he believes that he would be killed b y h i s former g ang members.” The I J then stated that the materials Garay had submitted “ con t ai n little if any information concerning the treatment o f former g ang members such a s [ himself] upon their return to El Salvador bey ond be ing killed.” The I J concluded t h at G a ray had “failed to demonstrate by any standard tha t h e would be subjected to torture.”

The I J ordered Garay r e moved to El Salvador. Garay timely appealed to the B I A.

C

On F ebruary 7, 2014, t h e B I A panel dismissed G aray ’s appeal in a p recedential decision, M atter of W –G–R–
, 26 I

. & N. Dec. 208 (BI A 2014). I n Matter of W –G–R–
, a nd in a companion precedential decision issued the same day
, Matter of M–E–V–G–
, 2 6 I

. & N. Dec. 227 (B I A 2014), the B I A clarified the requirements that a n a pplicant for asy lum o r withholding of removal must satisfy in order to demonstrate membership in a particular social g roup. The a pplicant must “establish t h a t the g roup is (1) c omposed of members w ho share a common immutable characteristic, (2) def i ned with particularity
, and (3) soc i a lly distinct within the society in question.” M–E–V–G–
, 2 6 I

. & N. D ec. at 237; see also W –G–R– , 26 I

. & N. Dec. at 212.R E Y E S V

. L Y N C H 9

I n Matter of W

–G–R–
, t h e B I A reviewed its historical efforts to c onstrue the statutory term “particular social g roup”

as it applies in a sy lum and w ithholding cases. 26 I

. & N

. Dec. at 209–10. The B I A ex p lained that its articulation o f the “particularity

” and “social visibility ” requirements w as n o t a departure f

rom or abrog ation o f its constru c tion of a “particular social g roup” in Matter of Acosta
, 19 I

. & N. Dec. 211 (B I A 1 985). 2 Id. a t 211–12 (citing Henriquez-Rivas v

. Holder
, 707 F .3d 1081, 1083 (9th Cir. 2013) (en b a n c )). I nstead, t h e BI A e x plained, the requirements “ clarified the definition of the term [ ‘ particular social g r oup’ ] t o g ive it

more ‘concrete mea n i ng throug h a process of case-by -case adjudication.’” I

d

. at 212 (quoting INS v. Aguirre-Aguirre
, 526 U.S. 415, 425 ( 1999) ). I n Matter of W –G–R–
, the B I A adhered to its previo u s h o l ding s that “both particularity a nd social visibility are critical elements in determin i n g” the
cog niz ability o f a particular social g roup, but re-named the “social visibility ” criterion as “social distinction.” Id.

The B I A observed that the term “particularity ” is included in the plain lang uag e of the statute

. Id. at 2 1 3. The B I A

ex p lained that “[ t] he particular ity requirement also derives from the concept of immutabili t y

. . . clarify ing the point, at least implicit in earl i e r case law, that not every immutable characteristic is sufficiently precise to define a particular social g roup.” Id. The B I A ex plained that “the focus of the
p a r t i c ularity requirement is whether the g roup is discrete o r is, instead, amorphous.” Id. at 214.

The B I A clarified that the term “social distinction” was intended to replace the term “ social visibility .” “ Social

2 T h e B IA d i d n o t d iscu ss an y c h a n g es to th e im m u tab ility
req u irem en t.R E Y E S V

. L Y N C H 10

d i s tinction” more accurately describes the function o f th e requirement a

nd reflects that it i s n o t intended to require “literal,” “ocular,” or “ on-sig h t” visi b i l i t y

. Id. at 211, 216. B ey ond that, the B I A clarified:

To have the “social distinction” nece s s ar y to establish a particular social g roup, there must be evidence showing that society in general perceives, considers, or recognizes persons sharing the p a rticular character i s tic to be a group

. Althoug h the society in q uestion need
not b e able to easily identify who is a member of the g roup, it must be commonly recog niz ed that the shared characteristic i s one that defines the g r oup.

Id. at 217 (emphasis added).

The B I A ex p lained that its d ecision n o t to focus the “social distinction” inquiry solely on the pers e c u t or’s perspective was based, in part, on the fact that the inquiry into whether a g roup is a “ particular social g r o up” is distinct from the inquiry into the “nex us” requirement, w h i c h considers whether a person is persecuted “on a ccount of” membership in a particular social g

roup. 3 Id. at 218.

3 A n asy lu m o r w ith h o l d in g a p p l ican t’ s b u rd en in clu des (1 ) “ d em o n stratin g th e ex isten ce o f a co g n izab le p articu lar so cial g ro u p ,” (2 ) “ h is m em

bersh ip i n th at p articu lar so cial g ro u p ,” an d (3 ) “ a risk of
p ersecu tio n o n acco u n t o f h is m em b ersh ip in th e sp ecif

ied p articu l ar so cial
g ro u p .” M a t t e r o f W

– G– R–
, 2 6 I. & N. Dec. at 2 23 (citin g Aya la v. Ho ld er , 6 4 0 F.3 d 1 0 9 5
, 1 0 9 7

– 9 8 (9 th Cir. 2 01 1 )). T h e th ird elem en t is

o f ten ref erred to as th e “ n ex u s” req u i rem en t.R E Y E S V

. L Y N C H 11

Turning to Garay ’s w i t hholding claim, the B I A ag reed with the I J that Garay ’s proposed g roup of “former members of the Mara 18 g ang in E l Salvador who h ave renounced their
g ang membership” was not cog niz able. Id. at 221. T he B I A reasoned that “[ t] he g r o up as defined lacks particularity because it is too diffuse
, as well as being too broad a nd subjective.” Id. T h e BI A commented that, “[ a] s d escribed, the g roup could include persons o f any ag e, sex , o r backg round. I t is not limited t o those who have had a meaning f ul involvement with the g ang and would thus consider themselv e s

— and be considered by others—as ‘former g ang members.’” Id.

Addressing the “social distinction” requirement, the B I A stated that “[ t] he r e c ord contains scant evidence that Salvadoran society considers former g ang members who have renounced their g ang membership as a distinct social g roup.” Id. at 222. The B I A concluded that Gara y h a d n ot provided evidence demonstrating that his propose d p a rticular social
g roup is “ perceived, considered, or recog niz ed in Salvadoran society as a distinct g roup.” Id.

Having determined that Garay had not demonstrated membership in a cog niz able g roup, the B I A d i d not n eed to address the “nex us” requirement. However, i t h e l d in the alternative that Garay had “not d emonstrated the r equired

nex us b etween the harm he fears a n d his status as a f ormer g ang member.” Id. at 223. The B I A noted that while persecution can b e a factor in determining whether a g r oup is
recog niz e d a s a distinct g roup within the relevant society
, “the persecutor’s views pla y a gr eater role in d etermining whe t h e r persecution is inflicted on account of the victim’s

m e m bership in a particular social g roup.” Id. The B I A then determined that Garay had “not s h o wn that any acts o fR E Y E S V

. L Y N C H 12

retribution or pu n ishment by g ang members would be motivated by his status as a former g ang member, rather than by the g ang members’ desire to enforce their code o f conduct.” 4 Id. at 224.

The B I A also rejected Garay ’s p roposed social g r o up o f deportees f

r om the United States to El Salvador. The B I A found that the proposed g ro u p i s “too broad and diverse a g roup to satisfy

the particularity requirement for a particular social g roup under the A ct.” Id. at 223 (citing D elgado-Ortiz

v. Holder
, 600 F .3d 1148, 1151–52 ( 9th Cir. 2 0 1 0 ) (per curiam)). The B I A ex plained:

The respondent’s purp o rted social g roup could include men, women, and children of all
ag es. Their remo v a l f

rom the U nited States could be based on numerous d ifferent factors. The leng th of time they were i n the United States, the recency o f their removal, a nd

4 A s w e af

f irm th e B IA ’ s d eterm in atio n th at Garay f ailed to d em on strate m em

b ersh ip in a co g n i zab le g ro u p , see in fra
, w e d o n o t reach th e B I A’s treatm en t o f n ex u s

. W e n o te, h o w ev er, th at th e B IA ’ s d if f eren tiatio n b etw een th e statu s o f b ein g a f o rm er g an g m em

b er an d th e retr i b u t o r y acts o f th e g an g h as b een criticized

. S ee Oliva v. Lyn ch
, 8 0 7 F.3 d 5 3
, 60 (4 th Cir. 2 01 5 ) (“ [T ] h e B I A d r e w to o f i n e a d i stin ctio n b etw een O liv a’ s s tatu s as a f o rm er m em

b er o f MS- 1 3 a n d t h e t h reats to k ill h im f o r b r e a k i n g t h e ru les im

p o sed o n f

orm er m em

b ers. W h ile it is
tru e th at Oliv a’ s d ecisio n t o sto p p ay in g ren t

. . . w as th e im m ed iate trig g er fo r th e g an g ’ s b ru tal assau lt on Oliv a, it w as Oliv a’ s statu s as a f o rm er g an g m em

b er th at led MS- 1 3 to d e m a n d ren t in th e f i rst place an d to

assau lt h im

f o r f ailu re to p ay

it.”).R E Y E S V

. L Y N C H 13

societal views on how long a person is considered a deportee a fter repatriation could
vary immensely

.

Id.

F inally
, the B I A reviewed the I J ’s de n i a l o f CAT relief for clear error, and affirmed. I d. at 224–26. I t reviewed evidence in support of Garay ’s claims that he feared torture at the hands of r ival g ang s, the police, or clandestine d eath squads, id. at 224–25, but concluded that “the I m m ig r ation J udg e ’s predictive fin d i n g s with respect to the respondent’s torture claim [ we] re not clearly erroneous . . . .” Id. at 225.

I n a footnote to it s C AT analy sis, the B I A addressed Garay ’s challeng e to the I J ’s statement that the ba c k gr o u nd materials G aray had submitted contained l ittle information about the treatment former g ang members face “bey o nd being killed.” I

d. at 226 n.9. The B I A dis a gr e e d w i th G aray ’s characteriz ation of the I J ’s decision “as holding that [Garay ] faces a dang er of being killed but that death i s n o t torture.” Id. The B I A read the I J ’ s statem e n t not as an assertion that killing s are n o t torture bu t , rather, as “ h[ o] ld[ ing ] that the evidence was not suffi c i e nt to show a clear probability that the respondent would be tortured.” Id.

Garay t imely petitioned f or review of the final order o f removal entered by

the B I A.

II

The primary issue in this c a se is wheth e r we should

a ccord deference to the B I A’s “particularity ” and “s o c i al distinctio n ” requirements f or establishing the ex istence of aR E Y E S V

. L Y N C H 14

“ particular social g roup,” as a rticulated in the precedent i al opinion in Garay ’s c a se, Matter of W –G–R–, 26 I

. & N. Dec. 208.

The BI A’s construction of ambig uous statutory terms in precedential decisions is entitled to deference under Chevron, 467 U

. S

. a t 844. Henriquez–Rivas
, 707 F .3d at 1087. W e must accept the B I A’s construction if it is reasonable, “even if the a g ency ’s reading differs from what the court believes is the best statutory interpretation.” Nat’l Cable & Telecomms. Ass’n v

. Brand X Internet Servs.
, 5 45 U.S. 967, 9 8 0 ( 2 005) (“ Brand X ”). Consistency with the ag ency ’s p a st practice o r precedent is not required for an ag e ncy interpretation to be d ue Chevron deference; a new or v ary ing ag en c y interpretation is permitted, if it is a d equately ex plained. Id. at 981.

Garay contends that the B I A’s “particularity ” and “social distinction” requirements are unreasonable, unreasoned, a nd impermissibly prevent individuals from seeking asy lum. W e disag ree and conclude that B I A ’s pres e n t articulation o f the “particularity

” and “social distinction” require ments is consistent with the statute, reflec ts the ag ency ’ s ong oing efforts to construe the ambig uous statutory phrase “particular

s o c i a l g roup,” is reasonable, and is e ntitled to Chevron deference.

A

The p hrase “membership in a particular soc ial g roup” is
not de f i n e d in the statute and has spawned ex tensive debateR E Y E S V

. L Y N C H 15

and litig ation. 5 Matter o

f W –G–R– and Matter of

M–E–V–G–

are the latest in a long line of BI A d e c isions refining the contours of this ambig u ous statutory provision.

The B I A f

irst interpreted “ persecution on account o f membership in a particular social g roup” in Matter of Acosta
, apply ing the doctrine of ejusdem generis to conclude that the phrase means “persecution that is d irected tow a r d an individual w ho is a member of a g roup of person s all o f whom share a c o m m o n , immutable characteristic.” 19 I

. & N. D e c

. at 233, overruled o n o ther grounds in Matter of Mogharrabi
, 19 I . & N. Dec. 439 (B I A 1987).

I n the ensuing y ea r s , Acosta ’s immutable characteristic
test “led to confusion and a lack of consistency a s adjudicators strug g led with various possible social groups,

some of which appeared to be created e x clusively for asy lum purposes.” Matter of

M–E–V–G–
, 26 I

. & N. Dec. at 231. I n

r e s ponse to calls for g reater clarity
, and in order to address the evolvi ng nature o f the claims presented by asy lum applicants, “the B I A refined the Aco s ta standard by stating th at an asy lum applicant must also demonstrate that his proposed particular social g ro u p has ‘social visibility ’ a nd ‘particularity .’” Henriquez-Rivas
, 707 F .3d at 1084 (quoting Matter of C–A–
, 23 I

. & N

. Dec. 951, 957, 960 ( B I A 2 006)); Matt e r o f M

–E–V–G–
, 26 I

. & N. Dec. at 232. The “social visibility ” requirement c o n s i d ered whether the proposed partic u l ar social g roup was “easily recog niz able a nd understood by others to constitute [ a] social g roup[ ].” Matter of C–A– , 23 I . & N. Dec. at 959–61.

5 S ee Va l d iviezo -Ga l

d a mez v. Att’y Gen

. , 6 6 3 F.3 d 5 8 2, 5 94 (3 d Cir. 2 0 1 1 ) (“ T h e co n cep t is ev en m o re elu s iv e b ecau se th ere is n o clear

ev id en ce o f

leg islativ e in ten t.”).R E Y E S V

. L Y N C H 16

I n subsequent cases, the B I A f u rther elaborated on the meaning of t h e “particularity ” and “social visibility ” requirements. I n Matter of S–E–G–
, 24 I

. & N. Dec. 579, 584 (B I A 2008), the B I A stated “[ t] he essence of the ‘particularity ’ requirement, therefore, i s w h e t h e r the proposed
g roup can accurately be described in a manner suffic i e ntly distinct that the g roup would be recog niz ed, in the society in questi o n , as a discrete class o f persons.” I n Matter of E–A–G–
, 24 I

. & N. Dec. 591, 5 94 (B I A 2008), the B I A

ex p lained “[ t] h e purported g roup’s social visibility —i.e., the

ex tent to which members of a society p erceive those with the characteristic in question as members of a social g roup—is o f particular importance in determining whether an alien is a member of a claimed particular social g roup.”

The B I A’s attempts to clari f y its “social visibility ” requirement received mix ed reviews from the circuit courts. I n Henriquez-Rivas
, 707 F .3d at 1085
, w e n oted that most circuits had accepted the B I A’s “social vi s i b i lity ” a nd “particularity

” c riteria, but that the Thi r d a nd Seventh Circuits had reject e d t h e c r iteria as an unreasonable interpretation of the ambig uous statutory

term.

I n Henriquez-Rivas
, we “clarif[ ied] the ‘social v isibility ’ and ‘particularity ’ criteria with out reaching the ultimate question o f whether the criteria themselves are valid,” i.e., whether they were due Chevron d eference. Id. a t 1091. 6 W e

6 Sin ce Hen riq u ez-Riva s , w e h av e issu ed o p in io n s in tw o c a s es in v o lv in g th e m ean in g o f “ m em b ersh ip in a particu l a r so cial g ro u p .” Flo res Rio s v. Lyn ch
, 8 0 7 F.3 d 1 1 2 3 (9 th Cir. 2 0 15 ); Pirir-Bo c v. H o ld er , 7 5 0 F.3 d 1 0 77 (9 th C ir. 2 0 1 4 ). In b o th cases, w e ack n o w led g ed th at th e B IA h ad rev isited its in t erp retatio n o f th e p h rase “ p articu lar so cial g ro u p ” in M– E– V– G– an d W

– G– R–

. Flo res Rio s , 8 0 7 F.3 d at 1 1 2 4
, 11 2 7; PirirBo c, 7 5 0 F.3 d at 1 0 7 9
, 1 0 8 2

– 8 4

. Ho w ev er, in n eith er case did w e ad d ressR E Y E S V

. L Y N C H 17

did, h owever, comment t h at “[ s] o long as the ‘social visibility ’ a

nd ‘particularity ’ criteria are applied in a way that did not directly confl i c t wi th prior ag ency precedent, we would be hard-pressed to reject t h e new criteria a s unreasonable under Chevron .” Id . at 1089.

B

W e now hold that the B I A’s interpretation in W

– G

– R

– and M–E–V–G– of the ambig uous p hrase “particular social
g roup,” including the B I A’s articulation of the “particularity ” and “social distinction” r equirements is reasonable a nd entitled to Chevron deference. W e consider the requirements in turn.

1

W e r ecog niz ed in Henriquez-Rivas that t h e “ p a r t i c ularity ” requirement is distinct from the “social visibility ”

r e q u i rement. “The ‘particularity ’ requirement is separate, and it is relevant in considering whether a g roup’s boundaries a re

so amorphous that, in practice, the persecutor does not consider it a g roup.” 707 F .3d at 1091.

The B I A’s current articulation of its “particularity ”
requ irement is reasonable a nd is consistent with its o wn precedent, w hich h a s l ong required that a particular social
g roup have clear boundaries and that its characteristics have commonly a ccepted d efinitions. See, e.g. , Matter of S–E–G–
, 24 I

. & N. Dec. at 585 (rejecting as too amorphous a proposed g r oup of “male children who lack stable f a m i l ies

w h at d ef eren ce w as d u e th e B IA ’ s n ew articu l atio n

o f its co n stru ctio n

o f

“ m em b ersh i p in a p articu lar so cial g ro u p.”R E Y E S V

. L Y N C H 18

and meaning ful adult p rotection, who are f r o m m iddle a

nd low income classes, who live in the territories con t r o l l ed b y the MS-13 g ang , a n d w h o r efuse r ecruitment”); Matter of A–M–E– & J–G

– U

– , 24 I

. & N. Dec. 69, 76 (B I A 2 007) ( e x plaining that “ affluent G uatemalans” did not qualify a s a particular social g roup in part because the “characteris tic o f wealth or affluence i s s i mply too subjective, inchoate, a nd variable to prov i de the sole basis for membership”); Matter of C–A–
, 23 I

. & N. Dec. at 953
, 9 5 9, 961 (rejecting a proposed g roup of “noncriminal drug in f o rm ants w orking

a ga i n s t t he Cali drug cartel” due, in part, to the fact that th e d i stinction between g o vernment informants who had be e n compensated for their services a n d t hose who acted out o f civic motives was not sufficient to c arve ou t a particular “subg roup” of uncompensated i n formants); Matter of V–T–S–
, 21 I

. & N

. Dec. 7 92, 7 9 8 ( B I A 1997) (holding “F ilipino[ s] of mix ed F ilipino-Chinese a ncestry ” cog niz able

as a p articular social g r oup in part bec ause a country conditions r e p o rt stated that 1.5% of the Philippine population h ad an “identifiable” Chine s e backg round). The B I A’s statement o f t h e purpose and function of the “particularity

” requirement does n o t, on its f ace, impose a numerical limit on a proposed social g roup or disqu a l i fy
g roups that ex c eed s pecific breadth or siz e limitations. Nor is it contrary to the principle that diversity within a proposed particular social g roup may not serve as the sine qua non o f the particularity analy sis. Cordoba v. Holder
, 726 F .3d 1106, 1116 (9th Cir. 2013); Henriquez-Rivas
, 707 F .3d at 1093–94. Rather, the B I A imposes the “ p a r ticularity ” requirement in order to disting uish between social g r oups that are discrete and those that a

re amorphous. Matter of W –G–R–
, 26 I

. & N

. Dec. at 2 1 4

. Recog niz ing that, in order to be “particular,” a g roup must have some d e finable boundary is not unreasonable.R E Y E S V

. L Y N C H 19

W e thus find the d e f inition o f the “particularity ” requirement articulated in W –G–R

– a n d M–E–V–G– to be both reasonable and consistent with the B I A’s own precedent. Brand X , 545 U.S. at 980–81.

2

The B I A’s articulation o f its “social distinction” requirement is also reasonab l e

. The “social distinction” requirement is not, as Garay contends, a “new” requirement. Rather, the “social distinction” requirement is reasonably read t o b e p r ecisely what the B I A c h aracteriz es it to be: a

r e n a m i n g of the “social visibility ” requirement. Matter of W –G–R– , 26 I

. & N. Dec. at 212.

I n Henriquez-Rivas
, w e did not reject the erstwhile “social v isibility ” requirement as an “unreasoned concept,” a s alleg ed by Garay

. Rather, we ex amined t h e c oncept a nd concluded that the “social visibility ” inquiry c annot r e q u i re “on-sig ht” visibility

. W e held that t h e p roper inquiry is

w h ether a p roposed p articular social g roup’s shar e d characteristic or characteri stics would “g enerally be
recog niz able by other members of the community ,” o r whether there was “ e vidence that members of the proposed
g roup would be perceived as a g ro u p b y society .” 707 F .3d
at 1088–89 (internal quotation marks omitted)

. The B I A ’s

ex p lanation of its “social distinction” requirement is consistent with our articulation of the appropriate inquiry

. Additionally
, al t

h o u g h w e c o m

m e n t e d i n H

e n r i q u e z

- R i v as

on the potential import of the persecutor’s perspective in assessing “social visibility ,” id. a t 1089 (“L ooking to the tex t

o f the statute, in the contex t of persecution, we believe tha t the perception of the p ersecutors may matter the most.”), theR E Y E S V

. L Y N C H 20

a gency is n ot bound b y o ur belief, as we did not hold that i t

was the only reasonable construction o f an unambig uous statutory term. 7 Brand X
, 545 U.S. at 981; P i r i r

- B oc , 750 F .3d at 1083 n.6 (noting that Henriquez-Rivas left t he issue for the B I A to decide )

. Moreover, the B I A ’s articulation of the “social d istinction” requirement does not preclude consideration of the persecu t o r’s perspective. Rather, as w e acknowledg ed in Pirir-Boc
, the B I A has noted
at least two way s in which the “perception of the applicant’s persecutor s m a y b e relevant.” 8 750 F .3d at 1083 n.6. W e noted that, “wh i l e the B I A d id not g ive the persecutor’s perspective the same role in the analy sis a s t h e o n e [ this Court] had recommende d [ in Henriquez-Rivas ]
, it d id g ive that perspec t i v e an important place.” I d

. According ly
, the B I A’s “social distinction” requirement does not unreasonably discount the perceptions of persecutors.

F inally
, the “social distinction” requirement is not redundant in lig ht o f the “nex us” requirement for asy lum a nd withholdin g c laims. Rather than conflate the “social distinction” a

nd “nex us” requirements
, the B I A’s r easoning reflects an appreciation of the need to disting uish between the showing an a

pplicant must make in o r der to demonstrate membership in a “particular social g roup” a n d t he showing that is necessary to dem o n strate that he was persecuted, o r

7 Ou r b elief w as n o t u n an i m o u s. I n a co n cu rrin g o p in io n , J u dg e McKeo w n ob serv ed th at “ [d ]ef

in in g so cial v isib ility f

ro m th e p ersp ectiv e

o f so ciety b etter co m

po rts w ith th e case law ” an d “ also m ak es co m m on

sen se.” Hen riq u ez-Riva s , 7 0 7 F.3 d at 1 0 94 (McKeo w n , J ., co n cu

rrin g ).

8 T h ese are (1 ) w

h en p e r s e c ut i o n m ay l ead to a g ro u p ’ s in itial

reco g n it io n , an d (2 ) in cases o f p ersecu t io n o n acco u n t o f i m p u ted
g ro u n d s. Pirir-Bo c , 7 50 F.3 d at 1 0 8 3 n .6 (citin g M– E– V– G–
, 2 6 I. & N. Dec. at 2 4 2

– 4 3 ).R E Y E S V

. L Y N C H 21

fears persecution, “on account of” that membership. This is consist e n t with the Supreme Court’s conception of the “nex u s” requirement. S

ee INS v. Elias-Zacarias
, 502 U.S. 478, 483 (1992) (ex p laining that “ the statute makes mo t i v e critical” and an asy lum applicant must provide direct o r circumstantial evidence of his persecutors’ motives i n o r der to satisfy the “nex us” requirement).

According ly
, we reject Garay ’s c h a lleng es to the B I A ’s construction of the phrase “part i cular social g r oup” because

we f ind that the B I A’s articulation of the “particularity ” a nd “social distinctio n ” requirements in Matter of W –G–R– is reasonable and e ntitled to Chevron deference. 9 Brand X
, 545 U.S. at 981.

III

Having determined that the B I A’s definition of particular social g roup is entitled to Chevron deference, w e n e x t consider Garay ’s contention that the B I A erred in finding that his proposed social g roup of “former members of the Mara 18
g ang in El Salvador w ho have renounced their membership” did not fit within that definition.

9 G aray also arg u es th at th e B IA ’ s an aly sis o f in tern atio n al law is bo th in co m p lete an d f

law ed
, su p p o rtin g rej ectio n of its “ so cial distin ctio n ”
req u irem en t. Ho w ev er, t h e B I A d id co n sid er in tern atio n al ref u g ee stan d ard s an d d eterm in ed th at its ap p ro ach to d ef in in g a p articu lar so cial
g ro u p w as n o t “ f

u n d am en ta l ly d if

f eren t f ro m in tern atio n al stan d ard s.” Ma tter o f W

– G– R–
, 2 6 I. & N. Dec. at 2 2 1

. Reg ard l e ss, alth ou g h th e Un i ted Na t io n s P ro to co l Relatin g to th e Statu s o f Ref u g ees an d Un ited Natio n s H ig h Co m

m issio n er f

o r Ref u g ees g u id an ce m ay b e u s ef u l in

co n stru in g t

h e p ro v isio n s ad d ed to th e Im m ig ratio n an d Natio n a l i t y A c t b y th e Ref u g ee A ct, th ey

d o n ot h av e t

h e f o rce of law

. Ag u irre-Ag u i rre , 5 2 6 U.S. at 4 2 7 ; Kh a n v. Ho ld er , 5 8 4 F.3 d 7 7 3 , 7 8 3 (9 th Cir. 2 00 9 ).R E Y E S V

. L Y N C H 22

“ T h e A t t o r

n e y G e n e r a l, while retaining ultimate authority
, has vested the B I A with power to ex ercise the ‘discretion a nd authority conferred upon the Attorney General by law’ in the

course o f ‘considering a n d determining cases before it.’” Aguirre-Aguir r e , 526 U.S. a t 425 (quoting 8 C. F

. R. § 3.1(d)(1)). As a g eneral rule, we review the B I A’s d enial o f withholding of removal for substantial evidence. GarciaMilian v. Holder
, 755 F .3d 1026, 1031 (9th Cir. 2014) (citing Pagayon v

. Holder
, 675 F .3d 1182, 1190 (9th Cir. 2011)). Under the substantial evidence standard, we may reverse the B I A onl y o n a f

inding “‘that the evidence not only supports [ a contrary ] conclusion, but compels it—and also compels the f urther conclusion’ that the petitioner meets the requisite

s t a n d ard for obtaining relief.” Id. (quoting INS v. Elia s

Zacarias , 502 U.S. at 481 n. l.).

I n A guirre-Aguirre
, the Supreme C o u r t stated that “the B I A should be accorded Chevron d eference a s it g ives

a m big u ous statutory terms ‘concrete meaning throug h a process of case-by -case adjudication.’” 526 U.S

. at 425 (quoting INS v. Car d

o z a -Fonseca
, 480 U.S. 421, 448–49 (1987)). I n H

enriquez-Rivas
, w e held that we re view the B I A’s finding s for substantial evidence, but that “[ t] he B I A ’s construction o f am b i gu o u s statutory terms

. . . is e ntitled to deference under Chevron

. ” 7 0 7 F .3d at 1087. I n this c ase, whether w e a

pply a “ Chevron deference” or “ s u b stantial evidence” standard of review—assuming they mig ht in some instances be different—makes no difference, because the B I A’s application of the “particularity ” and “social distinction” criteria to Garay ’s withholdi n g claims was reasonable.

The B I A’s application of the “particularity ” requirement
to Garay is reasonable in li g ht of the absence of recordR E Y E S V

. L Y N C H 23

evidence demonstrating that Salvadoran society recog niz e s the bou n d a r ies o f a g roup comprised of former Mara 18 members who have renounced their membership, reg ardless of the leng th and recency of that membership. Mat t e r of W –G–R–
, 26 I

. & N. D ec. a t 221 (“The boundaries of a g roup

are not sufficiently definable u nless the members of s ociety
g enerally ag ree on who is included in the g roup, and evidence that the social g roup proposed by t h e respondent is
recog niz ed within the society is lacking in this case.”).

Similarly
, w e ag ree that substantial evidence supports the B I A’s conclusion that Garay ’s p ro p osed g roup lacks social distinction. Id. at 222–23. The record evid e n c e does, a s Garay points out, include some evidence of rehabilitation
prog r ams run f

or the benefit of former g ang members and o f threats former g ang member s face from members of their

own and other g ang s. The record evidence does n o t, however, compel the conclusion that Salv a d o r an society considers former g ang members a s a dis t inct social g roup, e.g ., distinct from current g ang members who may also avail themselves of g overnment prog rams or from suspected g ang members who face discriminatory treatment and other challeng es in Salvadoran society

. See Vitug v. H older
, 723 F .3d 1056, 1062 (9th Cir. 2013) (“W e review for substantial evidence the factual finding s underlying the B I A ’s determination that a petitioner is not elig ible for withholding of removal. . . .”).

Accordingl y , we reject Garay ’s challeng es to the B I A ’s determination that his p roposed social g ro u p o f “formerR E Y E S V

. L Y N C H 24

members of the Mara 1 8 g ang in El Salvador w h o h ave renounced their membership” is not cog niz able. 1 0

IV

G ar a y also purports to challeng e the B I A ’s denial of his withholding claim based on h i s membership in a particular social g roup consisting of “deportees from the United States
to El Sal v a d or.” This a ssertion appears to have been an afterthoug ht as his b r i ef o nly a sserts that the B I A’s decision turned ex c l u sively on particularity

. The B I A’s decision is entitled to deference, see supra pag e 21–22, a nd we conclude that the B I A ’s denial o f withholding based on a particular social g roup of “deportees from the U nited States to El Salvador” is reasonable.

10 G a ray m ad e t

w o ad d itio n al arg u

m en ts, n eith er o f w

h i ch are p ersu asiv e. First, h e arg u e s th at t h e B IA erred in rely in g o n Artea g a v. Mu ka sey , 51 1 F.3 d 9 4 0 (9 th C ir. 2 0 0 7 ), to f in d Garay ’ s p ro po sed so cial
g ro u p w as n o t co g n izab le. A lth ou g h t h e IJ relied o n Artea g a , th e B IA did

n o t an d o n ly m en tio n ed Artea g a in a f oo tn ote. Ma tter o

f W

– G– R–
, 2 6 I. & N. D e c

. at 2 15 n .5

. Sin ce Artea g a w as n o t cru cial to th e B IA ’ s d ecisio n , w e ex p ress n o o p in io n o n th e co rrectn ess o f th e B IA ’ s f oo tn o te.

Seco n d
, Garay arg u es th at th e B IA ’ s articu latio n o f th e “ p articu larity ”

an d “ so cial d istin ctio n ” req u irem en ts im p osed a n ew ev id en t iary stan d ard

an d th e BIA ’ s f

ailu re to g iv e h im an o p p o rtu

n ity to m eet th at n ew stan d ard d en ied h im d u e p ro cess. W e n o t e th at G aray su b m itted ex ten siv e co u n try

co n d itio n s ev id en ce in su p po rt o f h is a p p l i c a tio n an d h as id en tif ied n o ad d itio n al ev id en ce th at h e w o u ld h av e su b m i tted th at m i g h t ch an g e th e

o u tco m e. T h u s, ev en if th e B IA h ad articu lated a n ew stan dard
, Garay

w o u ld still h av e f

ailed to sh o w

p rej u d ice, an d th u s w o u ld n o t b e en titled
t o r elief

. S ee Pa d illa -Ma rtin ez v. Ho l d er , 7 70 F.3 d 8 2 5
, 8 3 0 (9 t h C i r

. 2 0 1 4 ) (“ T o p rev ail o n a d u e- pro cess claim
, a p etitio n er m u st d em o n strate b o th a v io latio n

o f rig h ts an d p rej u d ice.”).R E Y E S V

. L Y N C H 25

As we have ex p lained in Section I I B 1, the B I A imposes the particularity requirement in order to disting uish between social g roups that are discrete and those that are amorphous. See supra p a g e 1 7–18. I n W –G–R–
, the B I A ex plaine d that particularity “chiefly addresses the question of d elineation, o r

as earlier court decisions d e s c r i b e d it, the need to put ‘outer limits’ on the definition o f ‘particular social g roup.’” Matter of W –G–R– , 26 I . & N. Dec. at 214. 1 1

Althoug h we have r ecog n iz ed that “social visibility ” a nd “particularity

” tend to blend tog e ther, we have not merg ed the
two prong s. Henriquez-Rivas
, 707 F

. 3d a t 1 090–91. A s noted, we held that “ [ t] he ‘ part i cularity ’ requirement is separate, and it is relevant i n considering whether a g roup’s boundaries are so amorphous that, in practice, the persecutor does not consider it a g r oup.” Id

. a t 1 091. W e stated that “the ‘particularity ’ consideration is m er e l y one factor as to

11 T h e B IA ref

erred i n its o p in io n to its d ecisio n in M a tter o f M– E– V– G
, 2 6 I. & N. Dec. 2 2 7
, d ecid ed t h e sam e d ay

. In M–

E– V– G
, th e B IA ex p lain ed :

A p art i c u l ar so cial g ro u p m u st b e d ef

in ed b y ch aracteristics th at p ro v id e a clear b en c h m ark f or d eterm in in g w

h o f alls w ith i n th e g ro u

p

. Ma tter o

f A– M– E– & J– G– U–
, 24 I. & N

. Dec. at 7 6 (h o ld in g t h a t w e a l t h y G u a t e m a l a n s l a c k t h e r e q u i s it e p articu larity to b e a p articu lar so cial g ro u p ). It is

c r i t i c a l th at th e term s u sed to d escrib e th e g ro u p h av e

co m m o n ly accep ted def

in itio n s in th e s o ciety o f w h ich
t h e g ro u p is a p art. Id

. (o b serv i n g th at th e co n c e p t o f

w ealth is to o su

b j e ctiv e to p ro v id e an ad eq u ate b en ch m ark

f or d ef in i n g a p articu lar so cial g ro u p ).

Id . at 2 3 9

. T h e B IA f

u rth er h eld th at a “ g ro u

p m u st also b e d iscrete an d h av e d ef in ab le b o u n d aries—it m

u st n o t b e am orp h o u s, o v erb ro ad
, d if f u se,

o r su b j ectiv e.” Id

.R E Y E S V

. L Y N C H 26

whether a collection of individuals is considered to b e a particular social g

roup in practice.” Id

.

The B I A’s application of the “particularity ” r equirement
to Garay ’s purported c lass of “deportees from the Uni t e d States to E l Salvador” was reasonable. The B I A foun d that

a proposed c lass of deportees was too amorphous, overbroad and diffuse because it included men, women, and children o f all ag es, regardless o f the leng th of time they were in the United States, the reasons for their removal, or the recency o f their removal. Matter of W –G– R

– , 26 I

. & N. Dec. at 223. Garay presented scarcely a ny contrary evidence. 1 2 Viewing all the evidence, the B I A’s reje c t i o n o f Garay ’s proposed class was reasonable, if not compelled.

I ndeed, the B I A’s determination is supported by case law declining to recog niz e much more ci r cumscribed purported

12 G aray ’ s on ly testim o n

y in su p p o rt o f h is p ro p o s ed p articu lar so cial
g ro u p o f d ep o rtees w as: “ B ecau se alm ost all th e tim e th e p eo ple th at are retu rn ed f ro m h ere, o r th ey are d ep o rted f ro m h ere, th ey stay in d eten tio n f o r in v estig atio n p u rp o s es.” Ho w ev er, Garay t h en q u alif ied h i s statem en t b y i n d icatin g th at th e g o v ern m en t w as m o st in terested in in d iv id u als w h o h av e crim in al reco rd s. In h is b rief to th e BIA
, G aray alleg ed in a f o o tn o te th at h e “ f aces a d an g er o f f

u tu re p ersecu tio n b ased o n h is m em b ersh ip in

a p articu lar so cial g ro u

p o f d e p o rtees f

ro m t h e Un ited States to El Salv ad o r,” an d o b

j ects t h at th e IJ “ d id n ot ad d ress th is so cial g ro u p d e fi n itio n at all.” In th e n ex t sectio n o f h is b rief
, w h ich ad d resses h i s claim f o r relief u

n d er th e CA T
, Garay arg u ed th at he w i l l be to rtu red b ecau se h e is a f

o rm er g an g m em

b er an d a d ep o rtee. He asserts th at d ep o rtees are m i streated u p o n th eir ret u r n becau se th ey are p resu m ed to b e g an g m em

b ers. T ak in g Garay ’ s assertio n s at f ace v alu e, th e y d o n o t

su p p o rt a f in d in g t h a t a l l d ep o rtees f ro m th e Un ited States co n stitu te a

“ discrete class o f

p erso n s.” Ma t ter o

f S

– E– G– , 2 4 I. & N. Dec. at 5 8 4

.R E Y E S V

. L Y N C H 27

g roups of d eporte e s

. 1 3 Most r e c ently
, in Ramirez-Munoz v

. Lynch
, 816 F .3d 1226 (9th Cir. 2016), w e affirmed the B I A ’s determination that a purported class of “imputed wealthy Americans” deported to Mex ico d id not constitute a particular social g roup. Citing Henriquez-Rivas
, 707 F .3d at 1090, we held that the proposed g r o up was not “sufficiently particular that it can be described with passable distinction that the
g roup would be recog niz ed as a discrete class of p e rsons.” Ramirez-Munoz , 816 F .3d at 1229.

As in Ramirez-Munoz
, t h e B I A’s rejection of G aray ’s purported class o f “deportees from the United States to El S al v a dor” is n ot contrary to our holding in Henriquez-Rivas that “ considerations of diversity of lifesty le and orig in” may not be “the sine qua non o f ‘ particularity ’ analy sis.” 707 F .3d
at 1093–94. To g o so far woul d come close to doing away with the particularity requirement, which was included in the plain lang uag e of the statute enacted b y Cong ress. AguirreAguirre
, 526 U.S. at 4 19. However, this was not our intent. W h ere a petitioner makes a prima fac i e showing of a “discrete class of persons,” n either diversity of li f e s ty le nor orig in will undermine that g roup. B u t where, as h er e, a petitioner proffers a g roup that is amorph ous rather than discrete, he can hardly be heard to arg ue that the B I A may not consider the proposed g roup’s lack of cohesion in determining that it is not particular.

13 See, fo r exa mp l e, Delg a d o -Ortiz v. Ho ld

er , 6 0 0 F.3 d a t 1 1 5 1

– 5 2 (h o ld i n g th at “ retu rn in g Mex ican s f ro m th e Un ited States” are “ to o b ro ad ”
to q u alif y as a p articu lar so cial g ro u p ); Liza ma v. Ho ld

er , 6 2 9 F.3 d 4 4 0
, 4 4 6

– 4 8 (4 th

Cir. 2 0 1 1 ) (h o ld i n g th at “ dep o rtees w ith crim in al h isto ries”
retu rn in g to El Salv ad o r f ro m th e Un i t e d St a t e s are “ to o bro ad ” to

co n stitu te a p articu lar so cial g ro u p ).R E Y E S V

. L Y N C H 28

Apply ing the deferenc e due to the B I A’s decision a nd reviewing the entire record, we re j e ct Garay ’s challeng e to the B I A’s determination that his proposed g roup o f

“ d eportees f

rom the United States to El Salvador” i s n o t cog niz able.

V

Garay c halleng es t h e BI A’s denial of his CAT claim a s based on l ega l e r ror and on facts not found by the I J

. The Government responds that substantial evidence supports the
ag ency ’s decision and any error in the B I A’s a ssessment o f Garay ’s CAT claim was invited because he asked the B I A to undertake p lenary review of his CAT claim. We find that the denial o f Garay ’s CAT c laim was premised on leg al error a nd vacate the denial of CAT relief.

W e review de novo issues of law reg arding CAT claims. Edu v. Holder
, 624 F .3d 1137, 1142 (9th C i r. 2010). “The B I A’s finding s underly ing its determination that an applicant is not elig ible for relief under the CAT a r e r e v iewed for substantial evidence.” Arteaga
, 511 F .3d at 944. Under that standard, we “uphold[ ] the B I A’s d etermina t i on unless the evidence in the record comp e l s a contrary c onclusion.” Id. W h ere the B I A conducts its own review of the evidence and law rather than adopting the I J ’s d e c ision, “ our review is limited to the B I A’s decision, ex cept to the ex tent that the I J ’s opinion is ex pressly a dopted. ” Hosseini v. G onzales
, 471 F .3d 953
, 9 57 (9th Cir. 2006) (internal quotation marks omitted).

To qualify for CAT relief, a n a p p licant must show that “‘it is more likely than n ot that h e

. . . wou l d b e t o r tured if removed

. . . .’” Cole v. H older
, 659 F .3d 762, 770 (9th Cir.R E Y E S V

. L Y N C H 29

2011) (quoting 8 C. F

. R. § 208.16(c)(2)). “Acts constituting
torture are varied, and include beating s and k illing s.” Bromfield v. Mukasey , 543 F .3d 1071, 1079 (9th Cir. 2 008);

see also Cole
, 659 F .3d at 771 (same). An applicant f or CAT relief does not need to s how that h e would be tortured on

a ccount o f a protected g round. Kamalthas v. INS
, 25 1 F. 3 d 1 2 7 9, 1283 ( 9th Cir. 2001); see also Cole
, 659 F .3d at 7 7 0 (“[ T] he provision for deferral of removal under CAT applies
to all applicants, even those who

. . . are for mer g ang members convicted of an ag g ravated felony .”).

Reviewing Garay ’s claim on appeal, the B I A stated th at it reviewed the I J ’s decision f o r c lear error. Matter of W –G–R–
, 2 6 I

. & N

. Dec. at 224–26. After reviewing evidenc e r e l ated to Garay ’s claims that he feared torture at the hands of r ival g ang s, the police, or c l a n d e stine death squads, id. at 224–25, the B I A concluded that “the I mmig r a tion J udg e’s predictive finding s with r espect to the respondent’s torture claim are not clearly erroneous.” Id. at 225.

I n a footnote, the B I A addressed the I J ’s statem en t t hat the materials “contain little if any information c oncerning the
treatment of former g ang members

. . . bey ond being killed.” Id. at 226 n.9. The B I A read the I J ’s statement to reflect not that the I J believed killing s are not torture, but “[ r] ather, the I mmig r a tion J u dg e h e l d that the evidence was not sufficient
to show a c l e a r probability that the respondent would be tortured.” Id.

A

W e are troubled by th e BI A ’s conclusion that the I J ’s “predictive finding s with r espect to [ Garay]’s torture claimR E Y E S V

. L Y N C H 30

are not clearly erroneous.” Matter of W –G–R–
, 26 I

. & N

. Dec. a t 2 2 5

. The B I A did n ot identify any specific “predictive finding s” in the I J ’s decision. At oral arg ument, counsel for the Governmen t was unable to point to any l a n g uag e in the I J ’ s d ecision that can be read to constit u t e “predictive finding s.” 1 4

I f the B I A was referring to the I J ’s conclusion that Garay had not established that the El S a l vadoran police were looking for him, the B I A’s conclusion is sound. This, however, is n ot enoug h to support the d enial of G aray ’s CAT claim, which a lso identified g a n g members and clandestine death squads as p ossible sources of f eared torture. See Cole
, 659 F .3d at 775 (remanding where the B I A failed to “consider the ag g reg ate risk that Cole would face from police, death squads, and g ang s if returned to Honduras”).

I f the “predictive finding s” the B I A was refe r r ing to include the I J ’ s discounting o f Garay ’s written description o f the torture h e feared at the hands of ga ng members, this is problematic for a n u mber of reasons. F irst, the I J ’s discounting of Garay ’s descriptio n of the torture he feared
cannot reasonably be characteriz ed a s a “ predictive finding

. ” Second, the BI A d i d not acknowledg e or correct the I J ’s apparent disreg ard of Garay ’s written declaration describing Mara 18’s practice of killing d efectors by placing tires around them and setting them on fire. G aray ’s failure to reiterate this assertion in his testimony does not neg ate the assertion. See,
e.g. , Lai v. Holder
, 773 F

. 3d 966, 9 7 1 (9th Cir. 2014) (“I t is

14 Bef o re u s, th e Go v ern m en t do es n o t ad o p t th e B IA ’ s read in g of th e IJ ’ s s tatem en t, b u t p o sits th at th e IJ “ ap p aren tly m ean t th at th e m aterials

w ere n o m o re sp ecifi c t h an [Garay ’ s t estim o n y ] ab o u t h o w th e d eath of f o rm er g an g m em

b ers m ig h t co m e ab o u

t.”R E Y E S V

. L Y N C H 31

well established that ‘the me r e omission of details is insufficient to uphold an a dverse credibilit y finding .’” (quoting Singh v. G onz a les
, 403 F .3d 1081, 1085 (9th Cir. 2 005))); Tekle v. Mukasey
, 5 33 F .3d 1044, 1053 (9t h C i r. 2008) (finding leg al error where I J failed to provide the petitioner with an opportunity to ex plain a p erceived inconsistency

).

Most importantly
, however, the BI A ’ s interpretation o f the I J ’s s t atement as a “predictive finding ” is problematic because it does not correct the I J ’s inference that k illing s a re not t o r ture. W hether reviewed f or clear error as a f

actual finding or r e viewed de novo as a question of la w o r judg ment, 1 5 we c annot read the I J ’s statement as reflecting
any thing o ther than an erroneous view that killing s are not torture. 1 6 B romfield
, 543 F .3d at 1079 (“Acts constituting torture are varied, and include beating s and killing s.”).

The B I A should have acknowledg ed and corrected the I J ’s error and remanded the matter to the I J

. See Figueroa v

.

15 In Rid o re v. Ho ld

er , 6 9 6 F .3 d 9 0 7 (9 th Cir. 2 0 1 2 ), w e ag reed w i th th e T h ird C i r c u it th at th e “ lik elih oo d o f to rtu re” en co m p asses tw o in q u iries: “ ‘ (1 ) w

h at is lik ely

to h ap p en

to th e p etitio n er if

rem o v ed ; an d (2 ) d o es w

h at is lik ely t o h ap p en am o u n t to th e leg al d ef i n itio n o f to rtu re.” Id

. 9 1 5

– 1 6 (q u o tin g Ka

p lu n v. Att’y. Gen

. , 6 0 2 F.3 d 2 6 0
, 2 7 1 (3 d Cir. 2 0 1 0 )). T h e f

i rst is a f actu al q u estio n an d su

b j ect to clear erro r rev iew ; th e

seco n d is a leg al q u estio n su b j ect to d e n o v o rev iew

. Id

.

16 G aray alleg es in h is Rep ly B rief th at th e sam e IJ th at h eard G aray ’ s

case co n clu d ed i n an o th er case t h at k illin g is n ot to rtu re. It ap pears th at in an u n p u b lish e d d e c isio n , t

h e B IA rem an d ed in lig h t o f o u r o pin io n in Bro mfield
, 5 43 F.3 d 1 0 7 1, to p erm it th e IJ to co n d u ct f u rth er f act- f in d in g i n o r d e r t o determ in e “ w h eth er th e k illin g s at issu e in [th at] case

co n stitu ted to rtu re.” S

ee In r e Dio nicio Zira n d

a -Amb riz
, File No

. A 0 88

- 7 3 8

- 8 79 (B IA J an . 2 2 , 2 0 1 3 ) at 3

.R E Y E S V

. L Y N C H 32

Mukasey
, 543 F .3d 48 7
, 498 (9th Cir. 2008) (reversing a nd remanding where the B I A failed to correct an I J ’s leg al error). F urther, it appears that the I J ’s error prev e n t ed the I J from

un d ertaking the necessary review o f all the record evidence, including evidence that former g ang members are killed, a nd from assessing whether Garay demonstrated a probability that he would be killed or otherwise tortured. 1 7

B

The G overnment maintains th a t , d espite the B I A being
g enerally precluded f

r om undertaking its own fact finding in the first instance, it could do so on Garay ’s appeal because he requested plenary review of his CAT claim. W e r e j e ct this
arg ument.

As t he Government concedes, the B I A was not empowered to undertake the necessary fact finding to decide

17 W e also rej ect th e B IA ’ s altern ativ e b asis f o r d en y in g CA T relief

. T h e B I A p ur p o rted to f in d th at th ere w as in su f f icien t ev id en ce of
g o v ern m en t acq u iescen ce to an y to r tu re b y g an g m em b ers. W

– G– R–
, 2 6 I. & N. Dec. at 2 2 6 ; see 8 C. F. R. § 2 0 8 .1 8 (d ef in in g to rtu

re in relev an t p art as “ p ain or su f

f erin g

. . . in f

licted b y o r at th e in stig atio n of o r w i th th e co n sen t o r acq u i escen ce o f a p u b lic o f f i cial o r o t h er p erso n actin g in

an o f f i cial cap acity .”). Ho w ev er, th e IJ d id n o t m ak e an y f i n d in g s ab o u t acq u iescen ce an d th e B IA ’ s o w n reg u l atio n s p rev en t th e B IA f ro m m ak in g its o w n f actu al f in d i n g s an d req u ire it to rem an d cases to th e IJ if f u rth er f act- f in d in g is n eed ed

. 8 C. F. R. § 1 0 0 3 .1 (d )(3 )( I )
, ( i v ). T h e B IA f o llo w ed th i s p rin cip l e in t h e w ith h o ld in g co n tex t w h en it d eclin ed to d iscu ss w h eth er th e Salv ad o ran g o v er nm e n t w as u n ab le o r u n w illin g to

co n tro l th e Mara 1 8 g an g m em b ers b ecau se th e IJ h ad n o t m ad e f in d in g s

o n it, bu t o d d ly
, i t d id n o t f o llo w th e sam e ru le in th e CA T co n t ex t. Co mp a re W

– G

– R– , 2 6 I. & N. Dec. at 2 24 n .8 w ith id

. at 2 2 6

.R E Y E S V

. L Y N C H 33

Garay ’s claim in the f

i r st instance. 1 8 Moreover, the invited

error doctrine, which the G overnment invokes, does not relieve the ag ency of its oblig ation to follow its o wn

r e gu lations and apply the correct standard of review. C f

. Amado v. Gonzalez
, 758 F

. 3d 1119, 1 133 n.9 (9th Cir. 2 014) (“‘[ I ] t is one thing to allow parties to forfeit claims, defenses,

or l ines of a

rg ument; it would be quite another to allow parties to stipulate or bind us to app l i c a tion of an incorrect leg al sta ndard, contrary to the cong r essional purpose.’” (quoting Gardner v. Galetka
, 568 F .3d 862, 879 (10th Cir. 2009))); United States v. Lindsey
, 634 F .3d 541, 555 (9th Cir. 2011) (“[ I ]n o rder f

or the invited error d o c t r i n e to apply
, a defendant must both invite the error and relinquish a known rig ht.”).

VI

According ly
, we deny G aray ’s petition with respect to his withholding claims, a

nd g rant only with respect to the denial

18 U n d er 8 C. F. R. § 1 0 0 3 .1 (d )(3 )(I) an d (iv ), “ (1 ) th e B o ard w ill n o t

en g ag e in d e n o v o rev iew o f fi n d i n g s o f f act d eterm in ed b y th e im m ig ratio n j u d g e; an d (2 ) ex cep t f or th e tak i n g o f ad m in istrativ e n otice

o f co m m on ly k n o w n f acts, th e B o ard w ill n o t en g ag e in f actf in d in g in th e

co u rse o f d ecid in g ap p eals.” Brezilien v. Ho ld er , 5 6 9 F.3 d 4 0 3 , 4 1 2 n .3 (9 th Cir. 20 0 9 ); Rid

o re , 6 9 6 F.3 d at 9 1 1

. “ Rath er, ‘ [f ]acts d eterm in ed b y th e im m ig ratio n j u d g e, in clu din g f i n d in g s as to th e cred ib ility of testim o n y , sh all b e rev iew ed o n ly t o d eterm in e w h eth er th e f

in d in g s o f th e im m ig ratio n j u d g e are clearly erro n eo u s.’ ” Id

. (q u o tin g 8 C

. F

. R. § 1 0 0 3 .1 (d )(3 )(I)). “ [T ]h e BI A can n ot d isreg ard th e IJ ’ s f in d in g s an d

su b stitu t e its o w n v iew o f th e f

acts. Eith er i t m

u st f in d cl e a r erro r,

ex p lain in g w

h y ; or, if critical f acts are m issin g , it m ay rem an d to th e IJ .” Id

. at 9 1 9. “ In co n trast to th ese su b s tan tiv e lim itatio n s on f actf in d in g ,

‘ [t]h e B o ard m ay rev iew q u estio n s o f law
, d iscretio n , an d j u dg m en t on all

o th er issu es in a p p e a l s f

ro m d ecisio n s o f im

m ig ratio n j u d g es d e n o v o .’ ” Brezilien , 5 6 9 F.3 d at 4 1 2 n .3 (q u o tin g 8 C. F. R. § 1 0 0 3 .1 (d )(3 )(ii)).R E Y E S V

. L Y N C H 34

of his a pplication for CAT re l i e f
, which we vacate a

nd remand to allow the ag ency to reconsider the application for CAT r elief recog niz ing that killing s c an c onstitute torture a nd
to undertake the requisite fact finding in accordance w ith the
ag ency ’s regulations.

P ETITION F OR REVIEW G RANTED in part a nd DENIED i n part; denial of CAT relief VACATED a nd REMANDED.