1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-2783

JOSE ORMIN MEJIA-FUENTES,

Petitioner 

v.

ATTORNEY GENERAL OF

THE UNITED STATES,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A98-358-319)

Argued: February 3, 2010

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge, and

DAVIS, District Judge*

(Opinion filed: February 24, 2012)

DAQUANNA CARTER, ESQ.

JESSICA RICKABAUGH, ESQ. (Argued)

PEPPER HAMILTON LLP

3000 Two Logan Square

Eighteenth & Arch Streets

Philadelphia, PA 19103

Attorneys for Petitioner

GREGORY G. KATSAS, ESQ.

 

*Hon. Legrome D. Davis, United States District Judge for the Eastern District of 

Pennsylvania, sitting by designation.
2

Assistant Attorney General

United States Department of Justice

Civil Division

CHRISTOPHER C. FULLER, ESQ.

Senior Litigation Counsel

Office of Immigration Litigation

ALISON MARIE IGOE, ESQ.

Senior Litigation Counsel

Office of Immigration Litigation

PO Box 878 Ben Franklin Station

Washington, D.C.

DANIEL I. SMULOW, ESQ.

ANN C. VARNON, ESQ.

THEODORE C. HIRT, ESQ. (Argued)

Attorneys

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION

McKEE, Chief Judge.

Jose Osmin Mejia-Fuentes has filed a petition for review of a decision of the 

Board of Immigration Appeals (ABIA@) that dismissed his appeal of an order of an 

Immigration Judge (AIJ@) denying his applications for asylum and withholding of 

removal. For the reasons that follow, we will grant the petition for review and remand 

for further proceedings. 

I. FACTS AND PROCEDURAL HISTORY1

 

1

Since we write primarily for the parties, we need not set forth the factual or 

procedural history in detail.
3

Jose Osmin Mejia-Fuentes applied for asylum, withholding of removal, and relief 

under Article 3 of the Convention Against Torture (ACAT@).2 He based his claim for 

relief on his contention that he had suffered past persecution by the Mara Salvatrucha 

(AMS@), a violent criminal street gang in El Salvador, and that he feared future 

persecution from MS if returned to El Salvador. He claimed that the persecution arose 

from his resistance to that gang=s attempts to recruit him to be a member of the gang. He 

thus rests his asylum claim on membership in a Aparticular social group,@ which he 

defines as Ayoung men who morally oppose criminal gangs and who lack family ties.@

 

2

The Immigration Judge denied Mejia-Fuentes=s application for relief under the 

CAT and the Board of Immigration Appeals held that the denial was proper. MejiaFuentes does not seek review of that ruling. 
4

The IJ denied any relief and ordered Mejia-Fuentes removed to El Salvador. The 

IJ held that the proposed social group did not have the requisite characteristics of a 

particular social group under BIA precedent which requires a visible and innate identity 

or under Third Circuit precedent. Administrative Record (AAR@) 402 (citing Matter of 

Acosta, 19 I. & N. Dec. 211 (BIA 1985), In re H-, 21 I. & N. Dec. 337 (BIA 1996), and 

Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), respectively). The IJ further held that the 

proposed social group had no existence independent of the alleged persecution, and that 

even if it did, Mejia-Fuentes Afailed to establish any persecution by this group as defined 

under the law.@ Id. The IJ based his reasoning at least in part on a belief that the 

evidence did not establish retaliation for Mejia-Fuentes=s rejection of the gang=s 

recruitment efforts. Instead, the IJ concluded that the gang was motivated solely by 

criminal intent in targeting Mejia-Fuentes and by a desire to increase its membership.3

On appeal, the BIA affirmed the IJ=s finding that Mejia-Fuentes did not meet his 

burden of proof for asylum and withholding of removal Aby establishing that any past or 

future mistreatment in El Salvador would be on account of a ground protected under the 

Act.@ AR 2. The BIA said that even if Mejia-Fuentes=s Aevidence were deemed to be 

sufficient to establish that the gang members actually sought to persecute him >on account 

of= any moral objection to gangs and his lack of family ties, as opposed to their purely 

criminal goal of enhancing their ranks, [Mejia-Fuentes] has nevertheless failed to 

 

3

The IJ also questioned Mejia-Fuentes=s credibility, finding his testimony was so 

Ameager and vague@ that corroboration, if available, was essential. AR 404. 
5

demonstrate that >young men who morally oppose criminal gangs and who lack family 

ties= have sufficient social visibility in El Salvador to be recognized as a >particular social 

group= within the meaning of the Act.@ Id. (citations omitted).4 

This petition for review followed.5

 

4As to the IJ=s finding that Mejia-Fuentes was not credible, the BIA said: AWe need 

not address the [IJ=s] determination that [Mejia-Fuentes] is not credible, for we conclude 

that [Mejia-Fuentes] has failed to meet his burdens of proof even if assumed to be 

credible.@ AR 2.

5 Our review of questions of law is de novo. Kamara v. Attorney General, 420 

F.3d 202, 210-11 (3d Cir. 2005). We review the BIA=s statutory interpretation of the 

Immigration and Nationality Act under the deferential standard of Chevron v. Natural 

Resources Defense Counsel, 467 U.S. 837 (1984). If the statute is silent or ambiguous to 

the specific issue, the question for the court is whether the agency=s interpretation is based 

on a permissible construction of the statute. Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 

1993). Where, as here, the BIA issues its own decision, we review that decision. Li v. 

Attorney General, 400 F.3d 157, 162 (3d Cir. 2005).
6

II. ASYLUM AND WITHHOLDING OF REMOVAL

Section 208 of the Immigration and Nationality Act (AINA@) gives the Attorney 

General discretion to grant asylum to a removable alien. 8 U.S.C. ' 1158(a). However, 

the grant of discretion is conditioned upon the alien establishing that s/he is a Arefuge@ as 

defined in 8 U.S.C. ' 1101(a)(42)(A). Thus, the alien must establish that s/he was 

persecuted Aon account of@ one of the five statutory grounds set forth in that section. See,

INS v. Elias-Zacarias, 502 U.S. 478 (1992). 

III. DISCUSSION

Before discussing the merits of this petition for review, we must first address the 

government=s contention that Mejia-Fuentes has waived any challenge to the BIA=s 

decision.

The government submits that the BIA affirmed the IJ=s ruling that Mejia-Fuentes=s 

limited testimony was insufficient to establish that MS members persecuted him. The 

government argues that since Mejia-Fuentes does not challenge that determination in his 

opening brief, he has waived any challenge to that ruling. See Anspach v. City of 

Philadelphia, 503 F.3d 256, 259 n.1 (3d Cir. 2007) (failure to present an argument in an 

opening brief constitutes waiver); Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 

2004)(same). The government claims that the BIA=s unchallenged determination is 

dispositive and precludes a ruling on his petition for review. See Kost v. Kozakiewicz, 1 

F.3d 176, 182 (3d Cir. 1993) (AIt is well-settled that if an appellant fails to comply with 

these requirements on a particular issue [i.e., set forth the issues raised on appeal and 
7

present an argument in support of those issues in his opening brief], the appellant 

normally has abandoned and waived that issue on appeal and it need not be addressed by 

the court of appeals.@). We disagree. 

The BIA did not hold that Mejia-Fuentes failed to establish past persecution or a 

well-founded fear of future persecution. Rather, the BIA held that Mejia-Fuentes failed 

to establish Athat any past or future mistreatment in El Salvador was or would be on 

account of a ground protected under the Act.@ AR at 2 (italics added). The BIA based its 

ruling squarely on its belief that Meija-Fuentes Afailed to demonstrate that >young men 

who morally oppose criminal gangs and who lack family ties= have sufficient social 

visibility in El Salvador to be recognized as a >particular social group= within the meaning 

of the Act.@ AR 2. The BIA did not make any determination on the issue of persecution 

because it determined that Mejia-Fuentes did not establish that his proposed social group 

was a Aparticular social group.@ Mejia-Fuentes does challenge that ruling on appeal.

A.

After this case was fully briefed, we decided Valdiviezo-Galdamez v. Attorney 

General (AValdiviezo-Galdamez II@), 663 F.3d 582 (3d Cir. 2011). There, we discussed 

at length the BIA=s initial interpretation of the term Aparticular social group@ and its later 

development of the requirement of Asocial visibility@ for determining whether a proposed 

social group constitutes a Aparticular social group@ for purposes of asylum and 

withholding of removal under the INA. 

In Valdiviezo-Galdamez II, we held, inter alia, that the BIA=s requirement of 
8

Asocial visibility@ which was applied in denying Valdiviezo-Galdamez relief, and which 

was applied here by the BIA in denying Mejia-Fuentes relief, was not entitled to 

deference under the standards established in Chevron U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984), because it was inconsistent with a number of 

cases in which the BIA had found that a proposed social group was a Aparticular social 

group@ under the standard it had earlier established in Matter of Acosta, 19 I. & N. Dec. 

211 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 

439 (BIA 1987). Valdiviezo-Galdamez II, 663 F.3d at 603-07. 

Although the BIA can certainly change the requirements for establishing 

membership in Aa particular social group,@ we explained in Valdiviezo-Galdamez II that 

the BIA must Aannounce a principled reason@ for departing from established precedent, 

and it had not done so in denying Valdiviezo-Galdamez=s claim that persons resisting 

recruitment into MS could constitute a particular social group for purposes of establishing 

refugee status. Id. at 608. We held that, unless or until the BIA provides a Aprincipled 

reason@ for its departure from established precedent, its prior ruling in Matter of Acosta

should control inquiries into whether an aslyum applicant=s proposed social group 

constitutes a Aparticular social group@ under the Act. Id.

6

 Our decision in Valdiviezo-Galdamez II is controlling here. Therefore, we will 

 

6We also noted in Valdiviezo-Galdamez II that the ABIA must not only announce a 

>principled reason= for any changes it makes to its definition of >particular social group,=

any announced changes must be based on a permissible construction of the statute.@ 663 

F.3d at 609 n.19. 
9

grant this petition for review on the issue of Meija-Fuentes=s membership in a particular 

social group and remand for further review for the BIA to analyze Mejia-Fuentes=s 

proposed social group in a manner that is consistent with this opinion and our holding in 

Valdiviezo-Galdamez II.

B.

Before concluding, we think it important to comment on the IJ=s conclusion that the 

proposed social group has no existence independent of the alleged persecution by MS. 

The BIA did not mention that finding in its decision. Nonetheless, the government cites 

our decision in Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003), in arguing that MeijaFuentes can not establish refugee status because his claimed social group has no existence 

independent of the alleged persecution. In Lukwago, we stated that a A>particular social 

group= must have existed before the persecution began.@ Id. at 172. 

However, we disagree with the government=s contention that Mejia-Fuentes=s 

proposed social group has no existence prior to, or independent of, the alleged 

persecution. As noted, Mejia-Fuentes=s proposed social group is Ayoung men who 

morally oppose criminal gangs and who lack family ties.@ In Valdiviezo-Galdamez I, we 

held that a similar proposed social group existed independently of its persecution. We 

wrote:

Before the IJ, Galdamez identified the particular social group 

to which he belongs as Athose who have been actively 

recruited by gangs but have refused to join because they 

oppose those gangs.@ App. 185. In his brief, he identifies the 

group as Ayoung Honduran men who have been actively 
10

recruited by gangs and who have been persecuted by these 

gangs for their refusal to accept membership.@ Appellants= Br. 

25. In discussing the group, we omit the fact of the group=s 

later persecution from its definition to make clear that the 

group exists independently of its persecution. See Lukwago v. 

Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (A[T]he >particular 

social group= must have existed before the persecution 

began.@).

502 F.3d at 290 n.3 (emphasis added). With the exception of Mejia-Fuentes= addition of 

persons lacking family ties to his proposed social group, we can see no difference 

between Mejia-Fuentes=s proposed social group and Valdiviezo-Galdamez=s proposed 

social group. 

IV. CONCLUSION

For all of the above reasons, we will grant the petition for review and remand to 

the BIA for its consideration of whether Mejia-Fuentes=s proposed social group 

constitutes a Aparticular social group@ under the standard the BIA established in Matter of 

Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), as explained in Valdiviezo-Galdamez II.