United States Court of Appeals

For the First Circuit

No. 08-2464

NOEMI CAAL-TIUL,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Selya, and Howard,

 Circuit Judges.

Lidia M. Sanchez on brief for petitioner.

Katharine E. Clark, Department of Justice, Civil Division,

Office of Immigration Litigation, Tony West, Assistant Attorney

General, Civil Division, and Barry J. Pettinato, Assistant

Director, on brief for respondent.

September 10, 2009
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Per Curiam. Noemi Caal-Tiul petitions this court for

review of the decision of the Board of Immigration Appeals ("BIA")

reversing the Immigration Judge's ("IJ") decision granting asylum

to her. The IJ's ground was that she had established a

well-founded fear of future persecution based upon her membership

in a particular social group (indigenous women). Caal-Tiul argues

that the BIA erroneously applied a de novo standard of review and

that the IJ's determination must be upheld under the "clearly

erroneous" standard of review.

The background events are as follows. In March 2006,

petitioner was charged with being "an alien present in the United

States who has not been admitted or paroled." She admitted to

being a citizen and native of Guatemala and having entered the

United States in December 2005, without a valid immigrant visa or

other approval. She submitted an asylum application and testified

at a hearing before the IJ on May 11, 2007.

Pertinently, as described by the IJ, Caal-Tiul testified

that in March 2005, while she and her children were living in

Montebaun, Guatemala, "a gang . . . began approaching her daughter

and asking her to join them. It is not clear whether there was a

demand made that the daughter join the gang, or whether there was

a demand made that she agree to date one of the members of the

gang. But she was threatened thereafter and harassed." 
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Caal-Tiul testified that "[s]he was aware that

individuals from this gang . . . had killed two people in the

basketball court where her daughter spent some time," and that it

was "part of the general practice of the gang in her area, that

they would pressure young girls to join them in order to do bad

acts and join them in doing bad acts." Caal-Tiul testified that

"she did not report this harassment or threats to the police

because they would not be able to do anything about it."

As a result of the threats and harassment from the gang

members, Caal-Tiul "sent her children to the United States in

September 2005." She continued to live at the family home in

Montebaun for a few days, during which time she was approached by

the gang member who had sought to associate with her daughter; he

"told her that her daughter had left, but that she remained, and

that he demanded that she give them money, a fine, as it were, of

$50. She indicated that they used very vulgar words and that she

was afraid."

Caal-Tiul then went to stay with her sister in the small

village of Esplanada, about two hours from Montebaun. She stayed

with her sister for approximately two months. After about one

month, Caal-Tiul received a phone call at her sister's house in

which "words were spoken to the effect that, 'we know where you

are, there are a lot of us, don't try to hide.'" She testified

that "she believes that it was the same gang that had previously
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caused her and her family problems in Montebaun . . . ." Caal-Tiul

decided to leave after receiving that phone call. 

The IJ found that Caal-Tiul had "testified candidly and

truthfully;" that Caal-Tiul had "sent her two young children to the

United States [from Guatemala] to reside with their father because

of threats that her daughter, then 12 years old, had received from

gang members in her town;" that her children, who were 13 and 7

when Caal-Tiul entered the United States, became United States

citizens through their father's naturalization; and that Caal-Tiul

took up residence in the city where the children were living with

their father but did not live with the father.

As to persecution, the IJ referred to State Department

Country Reports which reported that among Guatemala's "societal

problems" were "violence against women" and "ethnic

discrimination." The IJ noted that the report also stated that

"'[s]ocietal violence occurred widely throughout the country.'"

Non-state actors, including some with links to gangs, generally

committed the acts but "[t]he reports also suggested that former or

current members of the police condoned or were involved in some of

the attacks or other killings." The IJ also noted evidence from

the Country Report sources and elsewhere that discrimination

existed against indigenous people in the country. 

Ultimately the IJ found that Caal-Tiul's fears were

"objectively reasonable, given the atrocious conditions that exist
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in Guatemala, the extent of gang-related violence and the

government's inability to control the gang-related violence;" that

Caal-Tiul was "a member of a class, which is disproportionately

affected by gang violence, which is indigenous women;" and that

Caal-Tiul "is a member of a targeted group, that is, indigenous

women." The IJ also found that "requiring [Caal-Tiul] to remain

in Guatemala, as a dependent upon her family members, unable to

find true safety, unable to have a full and complete life, and to

live apart from her children, is inherently unreasonable."

On review, the BIA disagreed with the IJ's conclusion

that Caal-Tiul had demonstrated a well-founded fear of persecution

on account of a protected ground. Specifically, it found that "the

respondent has simply failed to demonstrate the problems she might

face there are on account of [a] ground protected under the

Immigration and Nationality Act." The BIA explained its reasoning

as follows:

Here it appears the respondent and her

daughter were subjected to criminal acts

carried out by gang members. Although the

Immigration Judge noted that indigenous women

in Guatemala are disproportionately affected

by the criminal gangs in Guatemala, it does

not appear from the record that the problems

the respondent faced, or might face in the

future, were on account of such classification

nor did they argue that such was the case. In

fact, the indigenous status of the respondent

was not mentioned until the Immigration Judge

asked about it at the very end of the hearing.

Rather it appears that the threats and

harassment they received were part of the

ongoing criminal problems and general unrest
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in that country. An asylum applicant's

expression of a fear of harm resulting from

general conditions of violence and civil

unrest in a home country, however compelling,

does not constitute the demonstration of a

well-founded fear of persecution within the

meaning of the Act. While the respondent might

also be arguing that she and her daughter

faced problems on account of their membership

in a particular social group, we note that

since the time of the Immigration Judge's

decision, we have held that "persons resistant

to gang membership" do not constitute a

particular social group. Matter of E-A-G-, 24

I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24

I&N Dec. 579 (BIA 2008). And, to the extent

the Immigration Judge cites the problems with

domestic abuse in Guatemala, with the

exception of the implications this has for the

treatment of women in general, this is not

germane to the case at hand.

Caal-Tiul now seeks review of the BIA decision in this

court and we begin with the standard of review. In September 2002,

new regulations took effect which altered the scope of the BIA's

review of immigration judges' decisions. They provide, in relevant

part, as follows:

(i) The Board will not engage in de novo

review of findings of fact determined by an

immigration judge. Facts determined by the

immigration judge, including findings as to

the credibility of testimony, shall be

reviewed only to determine whether the

findings of the immigration judge are clearly

erroneous.

(ii) The Board may review questions of law,

discretion, and judgment and all other issues

in appeals from decisions of immigration

judges de novo.

8 C.F.R. §1003.1(d)(3).
INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)("the statute 1

makes [the persecutor's] motive critical"); Sompotan v. Mukasey,

533 F.3d 63, 68 (1st Cir. 2008); In re S-P-, 21 I. & N. Dec. 486,

490 (BIA 1996).

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Central here is the IJ's finding that Caal-Tiul had not

"established a well-founded fear of harm inflicted and threatened

to be inflicted upon her on account of her being an indigenous

female." To the extent this determination concerns petitioner's

credibility and good faith belief, it is a fact finding subject

only to clear error review; but to the extent the concern is

whether the subjective fear is of a kind that fits within the

statutory definition, it is an issue of law or law application

where deference is limited or non-existent. See Rotinsulu v.

Mukasey, 515 F.3d 68, 73 (1st Cir. 2008).

The Board primarily relied on the lack of evidence that

the gang was motivated by Caal-Tiul's status (or that of her

daughter) as an indigenous female, and to this extent review was

arguably only for clear error. But the standard of BIA review

makes no difference because there is no evidence that the gang was

in any way motivated by the status of mother or daughter, either in

making threats to the one or in making the threats to and coercion

of the other. The IJ cited no such evidence and nothing in the 1

record suggests anything more than a gang preying on a girl and

reacting with threats to a parent who sought to interfere.
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The IJ sought to close the gap by evidence that

indigenous females are more likely to be victims of private crime

and violence and less likely to seek or be afforded police

protection; and this would be a fair inference from knowledge of

life even without Country Reports and other information. But some

social, gender, economic or other groupings are almost always more

vulnerable to crime and predation. This does not by itself amount

to persecution--let alone by or with the acquiescence of the state-

-on one of the specific grounds required by the statute. See

Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001).

In this case, affirmance of the BIA is an unattractive,

even though inevitable, result not because of threatened

persecution on a statutory ground but because, as the IJ explained

in closing, it requires Caal-Tiul "to live apart from her children

. . . ." It is not clear that Caal-Tiul is likely to be much less

safe in Guatemala than other women; but it is assuredly an outcome

greatly to be deplored that--having chosen to send her children to

the United States out of harm's way--Caal-Tiul will now be removed

to another country.

The outcome is not only regrettable but probably quite

unusual. The children are United States citizens because their

father has become an American citizen. If he were Caal-Tiul's

husband, ordinarily she would be able to join him under the

customary procedures available to spouses. But in this instance it
See Reno v. American-Arab Anti-Discrimination Committee, 525 2

U.S. 471, 483-84 (1999); Recommendation from the CIS Ombudsman to

the D i r e c t o r , U S C I S , A p r . 6 , 2 0 0 7 ,

http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_32_O_Deferred_

Action 04-06-07.pdf (last visited August 28, 2009).

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appears that Caal-Tiul and the children's father are not married

and that he is in fact married to someone else. So, if her

children remain in the United States and she is removed, she will

be cut off from her children--all because of her efforts to secure

safety for them.

No statutory scheme drafted for the usual case can assure

complete justice in peculiar circumstances. But the United States

Citizenship and Immigration Services ("USCIS") does appear to have

power to defer action when there are compelling humanitarian

considerations. Occasionally injustices in deportation matters 2

have been remedied by private bills in Congress. Whether either of

the these alternatives might work for Caal-Tiul is for her and her

counsel to assess, but a request on humanitarian grounds would be

far from frivolous.

The petition for review is denied.