FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIK RAMOS-LOPEZ, 

Petitioner, No. 06-72402

v. Agency No.  A098-919-259 ERIC H. HOLDER, JR.,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 11, 2008**

Seattle, Washington

Submission Vacated and Deferred April 28, 2008

Resubmitted March 5, 2009

Filed April 16, 2009

Before: A. Wallace Tashima, M. Margaret McKeown, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Tashima

*Eric H. Holder, Jr., is substituted for his predecessor Michael B.

Mukasey, as Attorney General, pursuant to Fed. R. App. P. 43(c)(2). 

**The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2)(C). 

4349
COUNSEL

Juliann Bildhauer, Seattle, Washington, for the petitioner.

Susan M. Harrison, Assistant United States Attorney, Seattle,

Washington, for the respondent. 

OPINION

TASHIMA, Circuit Judge: 

Petitioner Erik Ramos-Lopez (“Ramos”), a Honduran

national, petitions for review of a Board of Immigration

Appeals’ (“BIA”) order denying asylum and withholding of

removal. An Immigration Judge (“IJ”) credited as true

Ramos’ testimony that he refused recruitment into the Mara

Salvatrucha (“MS-13”), a Central American gang, and that

MS-13 members subsequently threatened to kill him. The dispositive issue in this case is whether Ramos suffered or has

a well-founded fear of persecution on account of a particular

social group — young Honduran men who have been

recruited by the MS-13, but who refuse to join — or political

opinion. The BIA recently determined that young Salvadoran

men who have resisted recruitment into the MS-13 do not

constitute a particular social group and that the refusal to join

the MS-13 does not amount to a political opinion. In re S-ERAMOS-LOPEZ v. HOLDER 4353
G-, 24 I. & N. Dec. 579, 583, 589 (BIA 2008). Applying the

principles of deference established in Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), we defer to the BIA’s decision with respect to social

group and deny the petition. 

I.

Ramos was born and raised in Puerto Cortes, Honduras.

Ramos’ problems with the MS-13 began in January 2004,

when he was sixteen years old. During his first encounter with

the MS-13, a gang member approached him and a friend outside of Ramos’ home. The MS-13 member told them that “it

was time to join,” took out a gun, and told the boys to come

with him to rob some people. When Ramos and his friend did

not respond or move, the man warned them that if they

“wanted to live, he would be waiting.” Later that year,

another MS-13 member returned to Ramos and his friend and

again delivered the message that “it was time to join.” The

gang member showed the boys his gun and told them that

they could either join the MS-13 or be killed. 

In January 2005, Ramos fled to Mexico. He was detained

by Mexican authorities and returned to Honduras the same

month. After Ramos returned to Puerto Cortes, MS-13 members threatened to kill him or a member of his family if he

tried to escape from Honduras again. He avoided further

encounters with the MS-13 before fleeing Honduras in May

2005. 

Ramos entered the United States on May 16, 2005. On May

17, 2005, he was detained by Border Patrol agents and served

with a Notice to Appear, charging him with removability for

being an alien present in the United States without being

admitted or paroled. Ramos conceded removability and

applied for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”).1 During his

1Ramos included the following with his asylum application: a personal

declaration, an affidavit from a journalist living in Honduras, a letter writ4354 RAMOS-LOPEZ v. HOLDER
removal hearing, Ramos testified about his three encounters

with MS-13 members in Puerto Cortes. 

In response to questioning by the IJ, Ramos also testified

that he did not join the MS-13 because he would have lost

contact with his family, would have been obligated to steal,

and “probably spend most of [his] life in jail.” Of the group

of Ramos’ friends who were recruited by the MS-13, two

joined the gang, one or two were killed, others were hiding in

Honduras, and some fled to the United States. Ramos was

afraid that MS-13 members would kill him, but he never went

to the police for help. Two of Ramos’ brothers, ages nineteen

and twenty, remained in Puerto Cortes. The MS-13 did not

bother the nineteen-year old, but started looking for the

twenty-year old after Ramos fled. Ramos’ twelve-year old

brother lives with his parents, but has not had problems with

the gang because he is too young. A sixteen-year old sister

also lives with Ramos’ parents. 

The IJ found Ramos credible, but, even after crediting his

testimony as true, denied asylum, withholding of removal,

and protection under the CAT. The IJ held that Ramos could

not establish eligibility for asylum or withholding because he

did not face persecution on account of his membership in a

cognizable social group or any political opinion. Alternatively, the IJ held that Ramos did not suffer past persecution

or have a well-founded fear of future persecution.2 The IJ further denied CAT relief because Ramos did not face a clear

probably of torture in Honduras. 

ten by a friend in Honduras, and over one hundred pages of supporting

documents describing gang activity in Honduras and Central America. 

2

 In support of his decision, the IJ found that the MS-13 members never

physically harmed Ramos or members of his family, Ramos’ family continued to live in Honduras without incident, and the police were not

unwilling or unable to protect Ramos from the MS-13. 

RAMOS-LOPEZ v. HOLDER 4355
The BIA affirmed in a summary disposition. Ramos timely

petitions for review of the denial of asylum and withholding

of removal, but not the denial of CAT relief. 

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When,

as here, the BIA summarily affirms the IJ’s decision, we

review the IJ’s decision as the final agency action. 8 C.F.R.

§ 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184

(9th Cir. 2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809

(9th Cir. 2004)). We review the IJ’s legal determinations de

novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.

2004). 

The IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s

findings of fact for substantial evidence. Halaim, 358 F.3d at

1131. Additionally, “[w]e accept [the petitioner’s] testimony

as true when, as here, the IJ found [him] to be credible.” Id.

(citing Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.),

amended by 290 F.3d 964 (9th Cir. 2002)).

III.

[1] Congress vested the Attorney General with the discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1)(A).

The INA defines “refugee,” in relevant part, as:

any person who is outside any country of such person’s nationality . . . and who is unable or unwilling

to return to, and is unable or unwilling to avail himself or herself of the protection of, that country

because of persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion. 

4356 RAMOS-LOPEZ v. HOLDER
8 U.S.C. § 1101(a)(42)(A). While asylum is a discretionary

form of relief, the Attorney General must grant withholding

of removal if “the alien’s life or freedom would be threatened” in the country to which he would be removed because

of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A). Thus, to be eligible for either form of relief,

the persecution feared must be on account of one of the five

protected grounds. Hanna v. Keisler, 506 F.3d 933, 937 (9th

Cir. 2007) (asylum); Nadarajah v. Gonzales, 443 F.3d 1069,

1081-82 (9th Cir. 2006) (withholding of removal). 

A. Particular Social Group

[2] Ramos’ claims for asylum and withholding of removal

are predicated, primarily, on his membership in a particular

social group: young Honduran men who have been recruited

by the MS-13, but who refuse to join. Recently, the BIA

issued a precedential opinion in which it held that Salvadoran

youth who have resisted gang recruitment are not a cognizable social group under the INA. In re S-E-G-, 24 I. & N. Dec.

at 588. 

[3] We have not yet had the occasion to address whether

the BIA’s determination, in a published disposition, that a

group is or is not a “particular social group” is entitled to

Chevron deference. After Marmolejo-Campos, however, our

path is clear. 

[4] Generally, “[w]e accord Chevron deference where there

is ‘binding agency precedent on-point (either in the form of

a regulation or a published BIA case).’ ” Renteria-Morales v.

Mukasey, 532 F.3d 949, 954 (9th Cir. 2008) (quoting Kharana v. Gonzales, 487 F.3d 1280, 1283 n.4 (9th Cir. 2007),

overruled on other grounds by Navarro-Lopez v. Gonzales,

503 F.3d 1063 (9th Cir. 2007) (en banc)). Chevron deference

to published BIA decisions is appropriate “as [the BIA] gives

ambiguous statutory terms ‘concrete meaning through a proRAMOS-LOPEZ v. HOLDER 4357
cess of case-by-case adjudication.’ ” Aguirre-Aguirre, 526

U.S. at 425 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,

448 (1987)). 

[5] We review de novo the BIA’s interpretation of a statute

other than the INA, but whether an “offense constitutes a

‘crime of moral turpitude’ is governed by the same traditional

principles of administrative deference we apply to the Board’s

interpretation of other ambiguous terms in the INA.”

Marmolejo-Campos, slip op. at 2637. In Marmolejo-Campos,

we explained that “moral turpitude” is an “ambiguous

phrase,” id. at 2634, and noted previous decisions in which

we deferred to the BIA’s construction of “other ambiguous

terms,” including “particularly serious crime,” Miguel-Miguel

v. Gonzales, 500 F.3d 941, 947-48 (9th Cir. 2007), “conviction,” Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.

2001), and “persecution,” Fisher v. INS, 79 F.3d 955, 961 (9th

Cir. 1996) (en banc). Marmolejo-Campos, slip op. at 2636.

Because we defer to precedential BIA decisions that give

meaning to ambiguous terms, we there held that the BIA’s

construction of “moral turpitude” though a process of caseby-case adjudication is entitled to Chevron deference. Id. at

2637. 

[6] “Particular social group,” like “moral turpitude,” is an

amorphous term. The BIA defined the general contours of the

term in In re Acosta as “a group of persons all of whom share

a common, immutable characteristic.” 19 I. & N. Dec. 211,

233 (BIA 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The BIA has

expanded on this definition by directing courts to further consider a group’s “social visibility” and “particularity.” In re AM-E-, 24 I. & N. Dec. 69, 74 (BIA 2007). Nonetheless, the

BIA must still determine in the first instance whether a specific group is a “particular social group” within the meaning

of the INA. Gonzales v. Thomas, 547 U.S. 183, 185 (2006)

(per curiam). “The matter requires determining the facts and

deciding whether the facts as found fall within a statutory

4358 RAMOS-LOPEZ v. HOLDER
term.” Id. at 186. Because the BIA’s determination that a certain group is or is not a “particular social group” is part of its

effort to give an ambiguous statutory term concrete meaning,

we hold that Chevron deference is due.3

[7] Our analysis is two-fold. First, we “ask[ ] whether ‘the

statute is silent or ambiguous with respect to the specific

issue’ before it.” Aguirre-Aguirre, 526 U.S. at 424 (citing

Chevron, 467 U.S. at 843)). If so, we ask “ ‘whether the agency’s answer is based on a permissible construction of the statute.’ ” Id. (citing Chevron, 467 U.S. at 843). We will not

overturn an agency decision at the second step “unless it is

‘arbitrary, capricious, or manifestly contrary to the statute.’ ”

Fisher, 79 F.3d at 961 (quoting Romero v. INS, 39 F.3d 977,

980 (9th Cir. 1994)); see also Chevron, 467 U.S. at 844. 

[8] Because the INA does not define “particular social

group,” Ochoa v. Gonzales, 406 F.3d 1166, 1170 (9th Cir.

2005), we proceed to the second step. There we conclude that

the BIA’s determination that young Salvadoran men who

have been recruited by gangs, but refuse to join, are not a

“particular social group” is a reasonable interpretation of the

INA.4

3

In so holding, we join the Second and Eleventh Circuits. See UceloGomez v. Mukasey, 509 F.3d 70, 72 (2d Cir. 2007) (according Chevron

deference to the BIA’s determination in In re A-M-E- that “affluent Guatemalans” are not a particular social group); Castillo-Arias v. U.S. Att’y

Gen., 446 F.3d 1190, 1197 (11th Cir. 2006), (according Chevron deference to the BIA’s determination in In re C-A-, 23 I. & N. Dec. 951 (BIA

2006) that “noncriminal informants who work against the Cali cartel” are

not a particular social group), cert. denied sub nom. Castillo-Arias v. Gonzales, 127 S. Ct. 977 (2007). 

4We first had occasion to consider the BIA’s decision in In re S-E-Gin Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008). We did not

analyze the BIA’s decision under the Chevron framework, noting instead

that the BIA’s decision was “not binding on us.” Id. at 745. We decided

Santos-Lemus, however, before our en banc decision in MarmolejoCampos, in which we clarified the method by which we determine the

degree of deference owed to BIA decisions. Marmolejo-Campos, slip op.

at 2631-38. Thus, to the extent Santos-Lemus is inconsistent with

Marmolejo-Campos, the later en banc decision must control. 

RAMOS-LOPEZ v. HOLDER 4359
[9] At the outset, we recognize that the relevant BIA opinion specifically addresses resistance to recruitment by the

MS-13 in El Salvador, not Honduras. The BIA, however,

expected its decision to apply to the same group in Honduras.

In re S-E-G-, 24 I. & N. Dec. at 582 (noting that the Third

Circuit, in Valdiviezo-Galdamez v. Att’y Gen. of the U.S., 502

F.3d 285 (3d Cir. 2007), remanded a case “involving a Honduran applicant” so that the BIA could “consider[ ] [ ] the

issue presented in the instant case”).5 We conclude that the

BIA’s decision is reasonable given that the same gang is at

issue albeit in different countries.6

[10] We further note that the BIA held that “youth” who

resist gang recruitment do not constitute a particular social

group. The BIA, however, explicitly rejected a formulation of

the social group that was further limited to young men. Id. at

585 (“The male respondents attempt to limit or define their

proposed group by claiming that it is comprised of male children . . . who refuse recruitment.”). Finding the BIA’s decision on-point, we proceed. 

[11] The BIA analyzed the purported social group using the

factors set forth in In re Acosta and In re A-M-E-.7 The BIA

first found that members of the group shared common, immu5

In a non-precedential decision the BIA recently applied In re S-E-Gto asserted persecution “on account of . . . membership in a particular

social group, namely Honduran youth who have been actively recruited by

gangs but have refused to join because they oppose the gangs.” In re

Valdiviezo-Galdamez, A097 447 286 (BIA Oct. 22, 2008) (unpublished)

(rejecting the claim, as in In re S-E-G-). 

6Ramos also attests that the MS-13 “operate[s] and [has] a stronghold

throughout North America and most of Central America,” including Mexico, Guatemala, Honduras, and El Salvador, and “operates transnationally.” 

7We previously affirmed and adopted the BIA’s interpretations in these

decisions in Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.

2000) (In re Acosta) and Arteaga v. Mukasey, 511 F.3d 940, 944-45 (9th

Cir. 2007) (In re A-M-E-). 

4360 RAMOS-LOPEZ v. HOLDER
table characteristics. In re S-E-G-, 24 I. & N. Dec. at 584.

While youth is a transient state, the BIA acknowledged “that

the mutability of age is not within one’s control.” Id. at 583-

84. The BIA also noted that prior gang recruitment is “a

shared past experience, which, by definition, cannot be

changed.” Id. at 584. Nonetheless, the BIA explained, “shared

past experience [does not necessarily] suffice [ ] to define a

particular social group for asylum purposes.” Id.

[12] After analyzing the social group under the rubrics of

particularity and social visibility, the BIA determined that

Salvadoran youth who resist recruitment by the MS-13 are not

a particular social group. Id. at 588. Further defining the “particularity” requirement, the BIA explained that “[t]he essence

of the ‘particularity’ requirement [ ] is whether the proposed

group can accurately be described in a manner sufficiently

distinct that the group would be recognized, in the society in

question, as a discrete class of persons.” Id. at 584. Salvadoran youth who were recruited by the MS-13 but resisted membership failed the particularity requirement because “[t]hey

make up a potentially large and diffuse segment of society,”

and, for that social group further limited by gender, “the motivation of gang members in recruiting and targeting young

males could arise from motivations quite apart from any perception that the males in question were members of a class.”

Id. at 585. In sum, the BIA concluded that the social group,

even with a gender delimitation, “[is] too broad to qualify

because ‘[t]here is no unifying relationship or characteristic to

narrow this diverse and disconnected group.’ ” Id. at 586 (second alteration in original) (quoting Ochoa v. Gonzales, 406

F.3d 1166, 1171 (9th Cir. 2005)). 

[13] The BIA further rejected the social group claim

because the group lacked the requisite social visibility.

“ ‘[T]he attributes of a particular social group must be recognizable and discrete.’ ” Id. (quoting In re C-A-, 23 I. & N.

Dec. at 956); see also Arteaga, 511 F.3d at 945 (“[A] shared

characteristic of a group must generally be recognizable to

RAMOS-LOPEZ v. HOLDER 4361
others.”) (citing In re A-M-E-, 24 I. & N. Dec. at 74). The

BIA reasoned that “gang violence and crime in El Salvador

appear to be widespread, and the risk of harm is not limited

to young males who have resisted recruitment . . . but affects

all segments of the population.” In re S-E-G-, 24 I. & N. Dec.

at 587.8 Thus, the BIA concluded that those who have resisted

recruitment are “not in a substantially different situation from

anyone who has crossed the gang, or who is perceived to be

a threat to the gang’s interests.” Id. While conceding that

young men are targeted, the BIA concluded that such targeting is not on the basis of belonging to the class of “men,” but

rather “to fill [the gang’s] ranks.” Id. at 588. 

[14] We conclude that the BIA’s decision is not arbitrary

and capricious. Indeed, we relied on the BIA’s decision when

we recently concluded that “young men in El Salvador resisting gang violence” did not constitute a particular social group.

Santos-Lemus, 542 F.3d at 745-46. The BIA’s decision also

comports with our holdings in Sanchez-Trujillo v. INS, 801

F.2d 1571 (9th Cir. 1986), and Ochoa. 

In Sanchez-Trujillo, we upheld that BIA’s determination

that “young, urban, working class males” did not constitute a

particular social group. 801 F.2d at 1575-77. In Ochoa, we

similarly affirmed the BIA’s rejection of a social group purported to consist of “business owners in Colombia who

rejected demands by narco-traffickers to participate in illegal

activity.” 406 F.3d at 1170-71. In both cases, we concluded

that the groups were not sufficiently particular given that individuals within this group “ ‘manifest[ed] a plethora of different lifestyles, varying interests, diverse cultures, and contrary

political leanings.’ ” Id. at 1171 (quoting Sanchez-Trujillo,

8After explicitly referring to El Salvador, the BIA further noted that

“MS-13 gang members in Central America have resorted to random violence against the general population as a means to protest against the

crackdown on gang activities in the country.” Id. (internal citation omitted). 

4362 RAMOS-LOPEZ v. HOLDER
801 F.2d at 1577). We relied on both cases when concluding

that “young men in El Salvador resisting gang violence” do

not constitute a social group because it was “too broad and

diverse.” Santos-Lemus, 542 F.3d at 745-46. 

[15] The group consisting of young Honduran men who

have been recruited by the MS-13, but who refuse to join, is

similarly broad and diverse. Only shared experience — that

of gang recruitment — unites them. The gangs target a wide

swath of society, and we have no evidence before us that they

target young men with any particular political orientation,

interests, lifestyle, or any other identifying factors. Thus, it

was reasonable for the BIA to conclude that the group was not

sufficiently particular. 

[16] The BIA also reasonably concluded that the group

lacked social visibility. The threats and harassment Ramos

and other young men experience after being recruited is a sad

part of the “general criminality and civil unrest” perpetrated

and perpetuated by the MS-13 in Central America. Id. at 746.

There is no evidence in the record that young men who have

been recruited by the MS-13 in Honduras are generally visible

to society. In fact, Ramos-Lopez attests to indiscriminate

action taken by the police against children who are not in

gangs in their efforts to curb gang activity. This fact evinces

a lack of social visibility. While MS-13 members may be able

to identify those who have resisted recruitment, it is not

because the group, as a group, is visible; rather, MS-13 members appear to keep tabs on individuals who have refused to

join. 

[17] We conclude that the BIA reasonably interpreted the

INA by refusing to recognize young Salvadoran men who

have been recruited by gangs and refuse to join as a particular

social group. Deferring to the BIA’s interpretation, we hold

that young Honduran men who have been recruited by gangs

but refuse to join do not constitute a particular social group.

RAMOS-LOPEZ v. HOLDER 4363
B. Political Opinion

[18] Ramos also contends that he was persecuted and has

a well-founded fear of persecution on account of his political

opinion. We defer to the BIA’s reasonable interpretation of

“political opinion” for the same reason we defer to the BIA’s

reasonable interpretation of “particular social group.” The

INA does not define “political opinion.” Instead, the BIA

gives shape to the amorphous term through a process of caseby-case adjudication. 

In Santos-Lemus, we deferred to the BIA’s determination

that “resistance to a gang’s recruitment efforts alone [does

not] constitute[ ] political opinion.” 542 F.3d at 747 (citing In

re S-E-G-, 24 I. & N. Dec. at 588 (relying on INS v. EliasZacarias, 502 U.S. 478 (1992)); see also In re E-A-G-, 24 I.

& N. Dec. 591, 596 (BIA 2008) (“[The] refusal to join MS,

without more, does not constitute a ‘political opinion.’ ”).

Because the petitioner in Santos-Lemus presented no “evidence of an actual political opinion or motive in [the petitioner’s] or the gang’s actions,” he could not prove persecution on

account of political opinion. 542 F.3d at 747. 

[19] Ramos’ case is indistinguishable. He alleges no facts

in support of a political opinion, actual or imputed, beyond his

refusal to join the MS-13. Thus, the IJ’s determination that

Ramos did not prove persecution on account of a protected

ground is supported by substantial evidence. 

IV.

Because Ramos did not prove that he suffered or has a

well-founded fear of persecution by the MS-13 on account of

one of the five protected grounds, we uphold the BIA’s decision denying asylum and withholding of removal. 

PETITION FOR REVIEW DENIED.

4364 RAMOS-LOPEZ v. HOLDER