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Gang Member Asylum Cases

Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016)

Decision November 30th, 2016

Amicus briefs in support of petition for rehearing

Harvard Immigration and Refugee Clinical Program…………………………………………2–20

Center for Gender & Refugee Studies, The Lawyers Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers association …………………21–45

James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - GANG ASYLUM / MATTER OF WGR - PP slide 6

No. 14-70686

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

WILFREDO GARAY REYES,

Petitioner,

v.

JEFFERSON SESSIONS,

Respondent.

Appeal from the Board of Immigration AppealsAgency No. A094-330-535

BRIEF OF AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEECLINICAL PROGRAM IN SUPPORT OF WILFREDO GARAY REYES’

PETITION FOR REHEARING OR REHEARING EN BANC

BARNES & THORNBURG LLPL. RACHEL LERMAN

2029 CENTURY PARK EAST, SUITE 300LOS ANGELES, CALIFORNIA 90067

TELEPHONE: (310) 284-3880FACSIMILE: (310) 284-3894

BARNES & THORNBURG LLPCHRISTOPHER J. BAYH

LEAH SEIGEL

11 SOUTH MERIDIAN STREET

INDIANAPOLIS, INDIANA 46204TELEPHONE: (317) 236-1313FACSIMILE: (317) 231-7433

ATTORNEYS FOR AMICUS CURIAE

HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM

RESTRICTED Case: 14-70686, 03/13/2017, ID: 10353667, DktEntry: 112-2, Page 1 of 20(6 of 25)


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TABLE OF CONTENTS

Page

STATEMENT OF AMICUS CURIAE…………………………………………..1

INTRODUCTION: WHY THIS COURT SHOULD GRANTREHEARING OR REHEARING EN BANC .......................................................2

ARGUMENT............................................................................................................5

I. This Court Should Grant Rehearing or Rehearing en Banc toAddress the BIA’s Application of an Erroneous Legal Standardfor Nexus. ....................................................................................................5

II. The Panel Erred in Applying the Particular Social Group Tests,and Did So in a Way that Threatens to Undermine the NexusTest.............................................................................................................8

A. The Panel Misapplied the Particular Social Group Test.............8

1. Particularity……………………………………...………….9

2. Social Distinction………………………………………….11

B. The Panel’s Decision Throws into Question the Purposeand Viability of the Nexus Test. ...............................................12

CONCLUSION.......................................................................................................14

CERTIFICATE OF COMPLIANCE ..................................................................16

CERTIFICATE OF SERVICE ............................................................................16



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TABLE OF AUTHORITIES

Page(s)

Cases

Bringas-Rodriguez v. Sessions,No. 13-72682, 2017 WL 908546 (9th Cir. Mar. 8, 2017)...............................6

Leiva-Perez v. Holder,640 F.3d 962 (9th Cir. 2011) ...........................................................................6

Madrigal v. Holder,716 F.3d 499 (9th Cir. 2013) ...........................................................................7

Matter of Acosta,19 I. &N. Dec. 211 (B.I.A. 1985)................................................................3, 8

Matter of M-E-V-G-,26 I. & N. Dec. 227 (B.I.A. 2104)...................................................................3

Matter of W-G-R-,26 I. & N. Dec. 208 (B.I.A. 2014).......................................................3, 10, 13

Oliva v. Lynch,807 F.3d 53 (4th Cir. 2015) .............................................................4, 5, 12, 13

Reyes v. Lynch,842 F.3d 1125 (9th Cir. 2016) ................................................................passim

Statutes

8 U.S.C. § 1101(a)(42)(A) .........................................................................................2

8 U.S.C.A. § 1158(b)(1)(B)(i) ...........................................................................2, 5, 6



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Page(s)

Other Authorities

D. Anker, Law of Asylum in the United States, §§ 5.63–5.64 (2016ed.) ...........................................................................................................3, 5, 6

J. Hathaway & M. Foster, The Law of Refugee Status, § 5.9.8(Cambridge Univ. Press 2014) ........................................................................3

R. Settlage, Rejecting the Children of Violence: Why U.S. Asylum LawShould Return to the Acosta Definition of “A Particular SocialGroup,” 30 Geo. Immigr. L.J. 287 (2016).............................................3, 5, 10

U.S. State Dept. Issue Paper: Youth Gang Orgs. in El Salvador.............................11



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STATEMENT OF AMICUS CURIAE1

The Harvard Immigration and Refugee Clinical Program (“the Clinic”) at

Harvard Law School has worked with hundreds of immigrants and refugees since

its founding in 1984. It combines representation of individual applicants for

asylum and related relief with the development of theories and policy relating to

asylum law. The U.S. Department of Justice has engaged the Clinic in the training

of immigration judges, asylum officers, and supervisors on a variety of issues

related to asylum law. In addition, the Clinic provides advice, support, and

supplemental services to immigration clinics, scholar, and advocates throughout

the United States.

The Clinic has filed briefs as amicus curiae in many cases in courts

including the U.S. Supreme Court, the federal Courts of Appeals, the Board of

Immigration Appeals (“BIA”), immigration courts, and various international

tribunals.

The Clinic has an interest in the proper application and development of U.S.

asylum law to ensure that the claims of individuals seeking asylum and related

relief receive fair and proper consideration under standards consistent with U.S.

1 Pursuant to F.R.A.P. 29(c)(5), amicus represents that no counsel for a partyauthored this brief in whole or in part, and no party or counsel for a partycontributed money intended to fund the preparation or submission of this brief. Noperson other than amicus or counsel contributed money intended to fund thepreparation and submission of this brief.



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laws and treaties. Amicus regards the issues in this case as especially important. It

is concerned that the protective function of the United States’ domestic asylum and

international treaty obligations will be undermined by an erroneous interpretation

of 8 U.S.C. § 1101(a)(42)(A), which requires asylum applicants to show that a

protected ground, such as membership in a particular social group, was “at least

one central reason” they were persecuted or fear persecution. Real ID Act of 2005,

§ 101(a)(3), 8 U.S.C.A. § 1158(b)(1)(B)(i).

INTRODUCTION:WHY THIS COURT SHOULD GRANT REHEARING OR

REHEARING EN BANC

Wilfredo Garay Reyes (“Garay”) joined Mara 18, one of the two largest

“maras,” or gangs, operating in El Salvador, when he was a teenager. When he left

the gang, he was relentlessly persecuted by gang members, who target former gang

members for brutal torture and murder. Fearing for his life, Garay sought to escape

Mara 18, without success. He eventually fled to the United States and sought

asylum here.

The Immigration Judge (“IJ”) found Garay credible and agreed he was

subjected to persecution by Mara 18. The BIA adopted these findings.

Nevertheless, both the IJ and the BIA rejected Garay’s application for asylum and



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withholding of removal, concluding he had not shown that former Mara 18 gang

members constitute a “particular social group” for asylum purposes.2

Until 2014, the BIA defined “particular social group” as a group of persons

sharing a “common, immutable characteristic.” Matter of Acosta, 19 I. &N. Dec.

211, 233 (B.I.A. 1985). In 2014, in this case and one other, the BIA introduced a

new definition, which requires refugees to establish “particularity” and “social

distinction.”3

In Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), a panel of this Court (the

“Panel”) decided as a matter of first impression that the BIA’s interpretation of

what the Panel termed the “ambiguous” phrase “particular social group,” “is

reasonable and entitled to Chevron deference,” as is “the BIA’s articulation of the

‘particularity’ and ‘social distinction’ requirements.” Id. at 1135.

1. As discussed in Garay’s petition, the BIA’s post-Acosta test is not

entitled to Chevron deference. Even if the BIA’s test is accepted by this Court,

2 Past status has long been considered a classic example of an “immutablecharacteristic” because the past, by definition, cannot be changed. J. Hathaway &M. Foster, The Law of Refugee Status § 5.9.8, pp. 458–61 (Cambridge Univ. Press2014); D. Anker, Law of Asylum in the United States §§ 5.63–5.64, pp. 538–50(2016 ed.).

3 See Matter of W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014); Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2104). See also discussion of these cases in R.Settlage, Rejecting the Children of Violence: Why U.S. Asylum Law Should Returnto the Acosta Definition of “A Particular Social Group,” 30 Geo. Immigr. L.J. 287(2016).



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however, the Panel misapplied it. That alone presents grounds for rehearing or

rehearing en banc.

2. The Panel’s failure to address the BIA’s nexus analysis also presents

grounds for rehearing or rehearing en banc. The BIA decided that Garay failed to

satisfy the nexus prong because he did not show that the gang persecuted him for

his status as a former gang member as opposed to his conduct in leaving the gang.

CAR 21-22, 113-15. The Panel expressed its discomfort with the BIA’s nexus

approach, observing in a footnote that “the BIA’s differentiation between the status

of being a former gang member and the retributory acts of the gang has been

criticized.” Id. at 1132 n.4 (citing Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015)).

But the panel failed expressly to reject the BIA’s nexus approach, which

renders the adverse asylum decision a foregone conclusion. Individuals who are

persecuted because of conduct that identifies them as a member of a protected

group cannot be said to fail the nexus test simply because their persecutors sought

them out and harmed them based on that conduct. Under the BIA’s test, a Christian

refugee persecuted for avowing his fealty to Christ would fail to qualify for asylum

because the IJ or the Board could find he was victimized for his conduct rather

than his identity as a Christian.

3. Finally, the Panel misapplied the governing particular social group

analysis in a way that fundamentally undermines this Circuit’s binding precedent



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on the nexus issue. The Panel’s analysis would allow the Government to defeat a

showing of a particular social group or nexus by hanging endless hypothetical

modifiers on the group – an approach inconsistent with this Court’s nexus standard

and expressly rejected by the Fourth Circuit in its Oliva decision, which the Panel

cited with approval.

Rehearing or rehearing en banc are necessary to address and correct the

BIA’s nexus analysis and the BIA and the Panel’s protected social group analysis.

If just one test is corrected, Garay and other refugees in his position – including

former soldiers and gang members who leave the group rather than participate in

unlawful acts of violence – will be condemned to a life of persecution or death.

See Settlage, supra, 30 Geo. Immigr. L.J. 287.

ARGUMENT

I. This Court Should Grant Rehearing or Rehearing en Banc to Addressthe BIA’s Application of an Erroneous Legal Standard for Nexus.

To establish nexus, Garay was thus required to show that his status as a

former gang member was “at least one central reason” for Mara 18’s repeated and

near-lethal attacks on him. 8 U.S.C. § 1158(b)(1)(B)(i); see also D. Anker, Law of

Asylum, §§ 5.12–5:13 (2016 ed.) (“The USCIS [United States Citizenship and

Immigration Services] Asylum Office has instructed that persecution may be

related to several reasons, some connected to a protected ground, some not.”)

(citing USCIS Asylum Officer Basic Training Course, Asylum Eligibility Part III:



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Nexus and the Five Protected Characteristics 7–8 (Mar. 12, 2009) (citing REAL ID

Act and observing that “[t]he persecutor may be motivated by several reasons,

some unrelated to a protected ground. There is no requirement that the persecutor

be motivated only by a desire to target the protected characteristic of the

applicant.”)).

The REAL ID Act requires a petitioner to establish that his or her

membership in a particular social group “was or will be at least one central reason

for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). This

Court has explained that, “an asylum applicant need not prove that a protected

ground was the only central reason for the persecution she suffered,’ as ‘a

persecutory act may have multiple causes.” Leiva-Perez v. Holder, 640 F.3d 962,

971 (9th Cir. 2011) (citation and quotations omitted). “Moreover, an applicant

need not prove that a protected ground was the most important reason why the

persecution occurred.” Ibid. ; accord, Bringas-Rodriguez v. Sessions, No. 13-

72682, 2017 WL 908546, at *15 (9th Cir. Mar. 8, 2017) (en banc).

Garay showed that Mara 18 persecuted him in retribution for leaving the

gang. But instead of applying the REAL ID test (which Garay would have met) the

BIA decided that Garay failed the nexus test because he did not “show that the

retributive harm the respondent fears would bear a nexus to his status as a former

gang member, as opposed to his acts in leaving the gang.” CAR 22 (emphasis



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added). This purported distinction between Garay’s identity as a former gang

member and the conduct that gave rise to that identity places is simply bizarre.

How can a refugee show that he was persecuted for being a former gang member

as opposed to becoming one by leaving the gang?

The Panel declined to address the BIA’s nexus finding (because it affirmed

its decision on other grounds), but mentioned in a footnote that “the BIA’s

differentiation between the status of being a former gang member and the

retributory acts of the gang has been criticized.” Reyes, 842 F.3d at 1132 n.4

(citing Oliva, 807 F.3d at 60). This weak acknowledgment that another circuit has

criticized the BIA’s faulty reasoning leaves open the question whether that

reasoning is acceptable in this Circuit. This Court should make clear it is not. This

Court suggested as much in Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013),

when it held that the nexus test was satisfied because the anti-drug activity that the

gang punished was inherent in the very definition of the group: “former soldiers

who participated in anti-drug activity.” Id. at 506.

This Court should grant rehearing or rehearing en banc to ensure that the

BIA cannot reduce the nexus test to a game of “heads I win, tails you lose,” for

Garay’s petition or those of future refugees.



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II. The Panel Erred in Applying the Particular Social Group Tests, andDid So in a Way that Threatens to Undermine the Nexus Test.

A. The Panel Misapplied the Particular Social Group Test.

In adopting the BIA’s 2014 definition of particular social group (in place of

the 1985 Acosta definition, namely, persons sharing a “common, immutable

characteristic”), the panel distinguished the “particularity” and “social distinction”

prongs based on perception of different classes of person – the persecutors and the

community.4

The Panel characterized the “particularity” requirement as asking “whether a

group’s boundaries are so amorphous that, in practice, the persecutor does not

consider it a group.” Reyes, 842 F.3d at 1135 (citing Henrique-Rivas, 707 F.3d at

1091) (emphasis added). And it characterized the “social distinction” requirement

as asking “whether a proposed particular social group’s shared characteristic or

characteristics would ‘generally be recognizable by other members of the

community,’ or whether there was ‘evidence that members of the proposed group

would be perceived as a group by society.’” Id. at 1136 (quoting Henrique Rivas,

707 F.3d at 1088–89) (emphasis added). The Panel failed, however, to apply these

tests as described.

4 The Panel did not explain why or how society’s perceptions might differfrom the persecutors’ perceptions.



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1. Particularity.

In affirming the BIA’s determination that Garay’s group lacks particularity,

the Panel held that Garay failed to show that society recognizes gang members who

renounce their membership “regardless of the length and recency of that

membership.” Reyes, 842 F.3d at 1137-38. In other words, the Panel superimposed

the social distinction test onto the particularity test. The Panel did not consider, as

it should have based on its own definition, whether the group to which Garay

belongs – boys and young men who renounce gang life – is discrete or amorphous

in the eyes of its persecutors. Instead it referred to society at large. It also rendered

the test a nullity by suggesting that Garay would need to clarify the group

according to the “length and recency of that membership” in the gang. See id.

Garay’s group could not be more definite in the eyes of persecutors – the

record shows that gang members seek out former gang members and persecute

them for leaving the gang, i.e., for being former gang members. The modifiers

suggested by the BIA and accepted by the panel – length and recency of

membership – might reduce the size of the group, but only at the expense of

particularity. When does the clock being to run? Does a gang seek to punish a boy

who leaves after three years more severely than one who leaves after two – or two



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and a half? These subjective criteria would render the group amorphous and be

impossible to apply in practice.5

In this case, the proposed modifiers make no sense because there is zero

evidence that gang members consider length and recency of membership in

carrying out their regime of persecution against former members. To the contrary,

the record shows that length and recency were irrelevant, and that former

membership was the one critical classification that brought on persecution. (See

respectively AR 109, 149, 181-81 (“anyone trying to leave [the gang] could be

punished with beatings or being killed”; any former member’s “life [was] in

jeopardy” because the gang leader “would have killed anyone”; “they say that if

you leave the gang your life is at risk) and AR 151-59 (Garay targeted in a drive-

by shooting three months after leaving gang, and attacked with machetes much

later after fleeing across country).)

In sum, adding ad hoc modifiers subjects all asylum-seekers to an

impossible standard that requires refugees to prove a negative. Particularity also

5 See Settlage, supra, 30 Geo. Immigr. L.J. at 311 (“If the proposed group inMatter of W-G-R- had been defined with this degree of particularity, it is unlikelythat [Garay] would have been able to find sufficient evidence to demonstrate socialdistinction. For example, former gang members who were leaders within the lasttwo years would not necessarily be socially distinguishable from former gangmembers who were [members only] five years ago.”).



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becomes an ever-moving target: even where applicants can show that certain

proposed modifiers are not relevant, the Government can respond by adding more.

2. Social Distinction.

In accepting the BIA’s decision that Garay failed to show social distinction,

the Panel rejected Garay’s “evidence of rehabilitation programs run for the benefit

of former gang members and of threats former gang members face from members

of their own and other gangs,” on the grounds that “current gang members” “may

also avail themselves of [such] government programs.” Reyes, 842 F.3d at 1138. In

other words, the panel suggests that gang members may seek rehabilitation without

renouncing the gang, making them indistinguishable from former gang members.

That is not what the record shows.

The record is clear that the church groups and other organizations that

operate gang rehabilitation programs do so to “help mara [gang] members who

seek to leave their gangs … and [achieve] reintegration into mainstream society.”

AR 266 (U.S. State Dept. Issue Paper: Youth Gang Orgs. in El Salvador)

(emphasis added). The record thus demonstrates that society does in fact recognize

the group of reformed gang members to which Garay belongs.

The Panel also theorized that “suspected gang members” might blur social

distinction because they also might “face discriminatory treatment and other

challenges in Salvadoran society.” Reyes, 842 F.3d at 1138. But “discriminat[ion]”



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and “challenges” are not persecution – suspected gang members are not targeted

for brutal torture and murder, as former gang members are. If the Panel’s reasoning

is correct, then any panel – or the IJ, or BIA panel, or the Government – could

defeat a showing of social distinction by explaining that other groups in society

also face some negative consequences.

In sum, the Panel failed properly to apply either prong of the particular

social group test.

B. The Panel’s Decision Throws into Question the Purpose andViability of the Nexus Test.

As explained above, the Panel’s reasoning would require petitioner to prove

endless negatives to defeat hypothetical “modifiers” that the government might try

to hang on the particular social group. This flawed reasoning would also make it

impossible for applicants to meet the nexus test, even when the proper nexus

standard is applied (and even when applicants are represented by counsel, which

often is not the case). Assuming arguendo that a refugee can negate all of the

modifiers that the Government might try to hang on a particular social group (as

discussed above, this will itself be all-but impossible to prove), he will be unable to

show whether he was persecuted based on those particular modifying factors.

The Fourth Circuit’s recent decision in Oliva discusses this exact connection

between nexus and particular social group analysis, and notes that the BIA’s

standard in the instant case – the very standard that the Panel endorsed – is



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impossible to meet and can preclude any applicant from showing either particular

social group or nexus:

We note that the BIA often requires petitioners to add modifiers ontotheir social group definition to meet the particularity requirement. SeeW–G–R– [Wilfredo Garay Reyes, the BIA’s opinion below here], 26 I.& N. Dec. at 221–22 …. Requiring each modifier to be anindependent, central reason for the persecution [i.e. to establish nexus]could make it nearly impossible for petitioners to successfullynavigate the legal requirements for asylum and withholding ofremoval.

807 F.3d at 61 n.4 (discussing nexus prong).

The Panel cited the Oliva court’s general nexus approach with seeming

approval, see 842 F.3d at 1132 n.4 (citing Oliva, 807 F.3d at 60, discussing nexus).

But the Panel did not address the above-cited analysis, which illustrates the

inextricable link between particular social group and nexus, and exposes the flaw

in the Panel’s analysis. Given the interconnection of protected category and nexus,

it is critical that this Court revisit this case – either as a panel or en banc to

reexamine the particular social group issues and to address nexus in the first

instance.

If the opinion is allowed to stand, it will prevent all refugees in Garay’s

position from obtaining asylum, and condemn them no matter what the facts of

their situation to persecution and often death. Now, more than ever, this Court and

courts and agencies around the country need to get the law right. Vulnerable

persons seeking asylum or withholding, whose lives may be threatened by



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persecution, should at minimum be afforded fair and predictable treatment under

the law.

CONCLUSION

For the foregoing reasons and the reasons stated in Garay’s brief, this Court

should grant rehearing or rehearing en banc.

Respectfully submitted,

Dated: March 13, 2017 BARNES & THORNBURG, LLPL. Rachel LermanChristopher BayhLeah Seigel

By /s/ L. Rachel Lerman

PRO BONO COUNSEL FOR AMICUSCURIAE HARVARD IMMIGRATIONAND REFUGEE CLINICALPROGRAM



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CERTIFICATE OF COMPLIANCE

1. This brief complies with Fed. R. App. P. 32 (a)(7) and 29(a)(5) and

contains 3,758 words.

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

version 2007 in a 14-point Times New Roman font.

Dated: March 13, 2017 BARNES & THORNBURG, LLPL. Rachel LermanChristopher BayhLeah Seigel

By /s/ L. Rachel Lerman

PRO BONO COUNSEL FOR AMICUSCURIAE HARVARD IMMIGRATIONAND REFUGEE CLINICALPROGRAM IN SUPPORT OFPETITIONER



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CERTIFICATE OF SERVICE

I hereby certify that on March 13, 2017, I electronically filed the foregoing

BRIEF OF AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE

CLINICAL PROGRAM IN SUPPORT OF PETITIONER with the Clerk of

the Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

/s/ Jessica L. StephensJessica L. Stephens

DMS 4817690v2



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1150361

Case No. 14-70686 UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Wilfredo Reyes, Petitioner,

v.

Jefferson Sessions, Attorney General Respondent.

Appeal from the Board of Immigration Appeals Agency No. A094-330-535

BRIEF OF AMICI CURIAE THE CENTER FOR GENDER & REFUGEE STUDIES, THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA, AND THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION

IN SUPPORT OF PANEL REHEARING AND/OR REHEARING EN BANC

BROOK DOOLEY, # 230423 AUDREY HADLOCK, # 250574 SOPHIE HOOD, # 295881 KEKER, VAN NEST & PETERS LLP 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188 Attorneys for the Center for Gender & Refugee Studies, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers Association



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CORPORATE DISCLOSURE STATEMENTS

Pursuant to Federal Rule of Appellate Procedure 26.1, the Center for Gender

& Refugee Studies, the Lawyers’ Committee for Civil Rights of the San Francisco

Bay Area, and the American Immigration Lawyers Association are all non-profit

corporations that do not issue stock or have parent corporations.



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TABLE OF CONTENTS

Page

I. INTRODUCTION .................................................................................... 1

II. STATEMENT OF INTEREST AND AUTHORITY TO FILE ............... 2

III. ARGUMENT ............................................................................................ 3

A. The panel rubber-stamped a BIA rule that will harm increasing thousands of claimants under the new immigration regime. ....................................................................... 3

1. Changes to immigration policy mean many more individuals will now be affected by the BIA’s unlawful standard for “particular social group” claims, often in expedited removal proceedings with no access to counsel. .................................................... 4

2. New policies also require full application of the improper BIA standard by immigration officers (instead of immigration judges). .......................................... 6

B. The panel erroneously upheld the BIA’s convoluted “social distinction” and “particularity” requirements and failed to address the new, heightened particularity standard the BIA applied for members of particular social groups based on former associations—which conflicts with existing law. ........................................................... 10

C. The panel decision permits the BIA to impose an implicit categorical bar on members of particular social groups based on former associations that has no basis in the Act. .......................................................................................... 13

1. The Court should clarify that Arteaga v. Mukasey does not require or support the BIA’s bar on particular social group claims based on former associations with gangs. ..................................................... 14



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2. The panel erred by upholding a BIA rule that implicitly invents a new statutory bar. ............................... 16

IV. CONCLUSION ....................................................................................... 17

CERTIFICATE OF COMPLIANCE ..................................................................... 1



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Page(s)

Federal Cases

Arteaga v. Mukasey 511 F.3d 940 (9th Cir. 2007) ......................................................................................... 1, 14, 16

Benitez Ramos v. Holder 589 F.3d 426 (7th Cir. 2009) ............................................................................................. 15, 17

Cordoba v. Holder 726 F.3d 1106 (9th Cir. 2013) ........................................................................................... 11, 12

Henriquez-Rivas v. Holder 707 F.3d 1081 (9th Cir. 2013) ................................................................................................. 16

J.E.F.M. v. Lynch 837 F.3d 1026 (9th Cir. 2016) ................................................................................................... 6

Martinez v. Holder 740 F.3d 902 (4th Cir. 2014) ................................................................................................... 15

Ochoa v. Gonzales 406 F.3d 1166 (9th Cir. 2005) ................................................................................................. 12

Perdomo v. Holder 611 F.3d 662 (9th Cir. 2010) ................................................................................................... 11

Pirir-Boc v. Holder 750 F.3d 1077 (9th Cir. 2014) ................................................................................................. 15

Reyes v. Lynch 842 F.3d 1125 (9th Cir. 2016) ........................................................................................... 11, 14

United States v. Carolene Prods. 304 U.S. 144 (1938) ................................................................................................................. 14

United States v. Peralta-Sanchez 847 F.3d 1124 (2017) ......................................................................................................... 5, 6, 9

United States v. Raya-Vaca 771 F.3d 1195 (9th Cir. 2014) ................................................................................................... 9

Urbina-Mejia v. Holder 597 F.3d 360 (6th Cir. 2010) ................................................................................................... 15



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Administrative Cases

Matter of Acosta 19 I. & N. Dec. 211 (B.I.A. 1985) ............................................................................... 10, 15, 16

Matter of Fuentes 19 I. & N. Dec. 658 (B.I.A. 1988) ........................................................................................... 12

Matter of M-E-V-G- 26 I. & N. Dec. 227 (B.I.A. 2014) ........................................................................................... 15

Matter of W-G-R- 26 I. & N. Dec. 208 (B.I.A. 2014) ......................................................................... 11, 12, 14, 16

Federal Statutes

8 U.S.C. § 1158 .............................................................................................................................. 16

8 U.S.C. § 1231 .............................................................................................................................. 16

Federal Regulations

69 Fed. Reg. 48877-01 (Aug. 11, 2004) .......................................................................................... 5

83 Fed. Reg. 8793 (Jan. 25, 2017) ................................................................................................... 4



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I. INTRODUCTION

The panel decision here failed to address Board of Immigration Appeals

(“BIA”) errors that will have devastating implications for countless individuals

subject to the current administration’s immigration crackdown who will risk

persecution if returned to their home countries. The Court should reject the BIA’s

stringent and erroneous test for particular social group asylum claims and clarify

that the law must and does protect individuals who seek relief from persecution

linked to membership in particular social groups based on their former

associations.

The panel endorsed the BIA’s unlawful rule requiring “social distinction”

and “particularity” as well as its arbitrary new requirements for persecution claims

based on former associations, contrary to Ninth Circuit (and other Circuits’)

precedent and the BIA’s own prior decisions. Given the government’s current

ramped-up enforcement and expansion of expedited removals—rapid, largely

unreviewable decisions by border officers applying the BIA’s standards, without

providing access to counsel or a hearing—this BIA rule will affect thousands more

claimants than it would have previously. And combined with the BIA’s

interpretation of this Court’s Arteaga v. Mukasey decision, the BIA’s rule will

amount to an insurmountable—and unlawful—extra-statutory bar on claims based

on former associations.



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The Court should grant panel and/or en banc rehearing to correct these

errors. Rehearing will maintain consistency in this Court’s precedent. It will also

ensure the lawful treatment of individuals impacted by changing immigration

policies who may present meritorious claims for asylum or withholding of removal

based on their former associations. These evolving issues are complex and

important, and they deserve the Court’s full and careful attention on rehearing.

II. STATEMENT OF INTEREST AND AUTHORITY TO FILE

Amici—the Center for Gender & Refugee Studies, the Lawyers’ Committee

for Civil Rights of the San Francisco Bay Area, and the American Immigration

Lawyers Association—are involved in the representation of refugees, have

extensive expertise in immigration law, and advocate on behalf of refugee children,

as set forth in detail in the accompanying Motion for Leave to File. All amici have

a strong interest in the development and consistent application of the law on

asylum and withholding of removal, including the legal standards defining

membership in a particular social group.

No counsel for a party to this case has authored any part of this brief; no

party, or counsel for a party, has contributed any money to fund the preparation or

submission of this brief; and no one other than amici and their counsel have

contributed any money to fund the preparation or submission of this brief.



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Amici seek authority to file this brief by their accompanying, unopposed

Motion for Leave to File. (Petitioner consents to this filing; Respondent takes no

position.)

III. ARGUMENT

Rehearing is needed here to ensure lawful application of the complex laws

governing claims for asylum and withholding of removal, and consistent

interpretation of those important laws at the BIA and among the courts of appeals.

The need is especially urgent and important now because of the increasing

numbers of individuals likely to be subjected to expedited removal under current

immigration policies. The panel ignored the BIA’s actual analysis and tacitly

endorsed a new, arbitrary BIA rule that conflicts with existing Ninth Circuit law

and relevant statutes and that implicitly establishes an extra-statutory bar on

persecution claims by members of particular social groups based on former

associations.

A. The panel rubber-stamped a BIA rule that will harm increasing thousands of claimants under the new immigration regime.

The current administration’s changes to enforcement policy make it

especially important that the Court rehear this case and require the BIA to provide

fair and lawful treatment for the many new claimants likely to be affected by the

“particular social group” standard going forward.



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1. Changes to immigration policy mean many more individuals will now be affected by the BIA’s unlawful standard for “particular social group” claims, often in expedited removal proceedings with no access to counsel.

Many thousands of migrants regularly seek relief from persecution in

immigration proceedings. In 2016, more than 100,000 individuals made defensive

asylum claims.1 Increasing numbers of those being deported or removed come

from Central American countries including El Salvador, many of them (like

Petitioner) fleeing gang violence and persecution based on their membership in

particular social groups. Id.

New enforcement policies will dramatically increase the number of

individuals detained and expelled from the country. The administration’s January

25, 2017 executive order directed major changes in immigration enforcement

policies, which Homeland Security is working to implement.2 The administration

has rescinded previous enforcement priorities and “no longer will exempt classes

or categories of removable aliens from potential enforcement.” Feb. 20, 2017

1 See USCIS, Fiscal Year 2016 ICE Enforcement & Removal Operations Report, available at https://www.ice.gov/sites/default/files/documents/Report/2016/removal-stats-2016.pdf (as of March 6, 2017). 2 Formal regulations have not yet issued. See Border Security and Immigration Enforcement Improvements, 83 Fed. Reg. 8793 (Jan. 25, 2017); Feb. 20, 2017 Memorandum re Implementing the President’s Border Security and Immigration Enforcement Improvements (“Implementation Memo”) at 1, available at https://www.dhs.gov/publication/implementing-presidents-border-security-and-immigration-enforcement-improvement-policies.



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Memorandum re Enforcement of the Immigration Laws to Serve the National

Interest (“Enforcement Memo”) at 2.3 Instead of focusing on violent criminals and

other high-risk individuals, the administration has now targeted full enforcement

against all removable individuals. Id. at 2.

The new policy also appears to require detention of all removable

individuals pending removal. Implementation Memo at 2-3. Many of those

detained will certainly present asylum or withholding claims.

In addition, prior policies had permitted expedited removal proceedings only

for individuals at ports of entry, those who arrived by sea (present in the U.S. less

than two years), or those apprehended within 100 miles of the border and unable to

prove their physical presence in the country for the immediately preceding fourteen

days. See United States v. Peralta-Sanchez, 847 F.3d 1124, 1130 (2017).4 The

administration has directed the Department of Homeland Security (“DHS”) to

expand expedited removal, apparently to its maximum statutory scope: all

removable individuals unable to prove their presence in the country for two full

years. See Border Security and Immigration Enforcement Improvements, 82 Fed.

3 Available at https://www.dhs.gov/publication/enforcement-immigration-laws-serve-national-interest. 4 See also DHS Notice re Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004); Implementation Memo at 6.



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Reg. 8793, 8796 (2017).5 If DHS expands expedited removal in this way, many

more individuals will face the BIA’s unlawful standard without access to counsel

(even at their own expense) or a full hearing. This makes it especially important to

clarify the law and reject the BIA’s unlawful standard here. See United States v.

Peralta-Sanchez, 847 F.3d 1124 (2017).6

2. New policies also require full application of the improper BIA standard by immigration officers (instead of immigration judges).

Other policy changes also make it vitally important to provide clear

guidance about what is and is not required to establish claims based on

membership in a particular social group based on former associations. Under

recently released guidelines, DHS is directing immigration officers to treat the

“credible fear” interviews traditionally used for initial screening of plausible

claims as complete evaluations of claims, essentially replacing a full hearing

before an immigration judge. See Implementation Memo at 8 (requiring “officer[s]

to elicit all relevant information . . . as is necessary to make a legally sufficient

determination”). Overall, the new policy seeks to increase the number of claims

5 DHS intends to eliminate “unacceptable delays” that allow individuals “with no plausible claim for relief to remain unlawfully in the United States for many years.” Implementation Memo at 6-7 (citing backlog of 534,000 cases). 6 Peralta-Sanchez relied on the limited scope of expedited removal (as then applied) in finding no right to counsel. Id. at 1135-36; see also J.E.F.M. v. Lynch, 837 F.3d 1026, 1029 (9th Cir. 2016) (declining to address whether children have a right to counsel in immigration proceedings).



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evaluated immediately at the border. Id. at 8-9. DHS places at least as much

emphasis on eliminating “asylum-related fraud” as it does on providing adequate

relief to those entitled to asylum or other relief from persecution, however, creating

a strong incentive for officers to deny claims. See id. at 8-9.

The shift towards complete assessments of claims in initial screening

interviews makes it even more important for the Court to correct the BIA’s

improper test for social group claims. Unlike prior versions, both the 2014 and

2017 guidelines direct asylum officers to assess “particular social group” claims in

detail based on the BIA’s flawed framework of social distinction and particularity.

February 28, 2014 ADOTC Lesson Plan Overview: Credible Fear of Persecution

and Torture Determinations (“2014 CFI”) at 25-26; February 13, 2017 ADOTC

Lesson Plan Overview: Credible Fear of Persecution and Torture Determinations

(“2017 CFI”) at 27-28. Indeed, the guidelines specifically direct officers to the

BIA’s decision in this case as the proper authority to apply in evaluating social

group claims. Id.

The government’s new 2017 “credible fear” guidelines also continue a

recent trend of directing officers to conduct ever more stringent evaluations during

the initial screening. This policy reduces the chance that individuals will pass the

initial screening and be granted a full hearing (with its increased procedural

protections). That in turn increases the risk of expedited removal for many who



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might otherwise successfully claim asylum or withholding. For example, the 2017

guidelines remove prior language explaining that if there is “reasonable doubt”

about a credible fear determination, “the applicant likely merits a positive” finding

so that questions “can be addressed in a full hearing before an immigration judge.”7

The new guidelines also apply stricter standards for judging applicants’

credibility, directing officers to make credibility rulings themselves rather than

deferring them for an immigration judge. This shift also increases the importance

of rehearing here, because it means fewer applicants are likely to receive a full

hearing. For example, the 2017 guidelines instruct officers that “[t]he asylum

officer should assess the credibility of the assertions underlying the applicant’s

claim, considering the totality of the circumstances and all relevant factors.” 2017

CFI at 18 (Sect. VI(A)). The 2014 guidelines had instead instructed that applicants

must only show “a significant possibility that [the claim] could be found credible

in a full asylum or withholding . . . hearing.” 2014 CFI at 17 (Sect. VI(A)). The

new credibility guidelines are replete with other similar changes. For example, the

2014 guidelines—but not 2017—instruct that “[b]ecause the credible fear

determination is a screening process, the asylum officer does not make the final

determination as to whether the applicant is credible,” but leaves that

7 Compare 2017 CFI at 17 to 2014 CFI at 16 (Section V(C)(3)).



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determination for an immigration judge to make after a “full hearing on the

merits.” 2014 CFI at 17 (Sect. VI(B)(1)(a)); 2017 CFI at 18.8

Expanding the scope of expedited removal and imposing harsher

“screening” criteria in credible fear interviews will increase the risk that cursory,

unfair proceedings will eliminate even meritorious asylum and withholding claims.

This Court has previously found due process violations by immigration officers

who violated the most basic requirements of due process in expedited removal

proceedings. United States v. Raya-Vaca, 771 F.3d 1195, 1204-05 (9th Cir. 2014)

(officer failed to explain nature of the proceedings). A recent ACLU analysis

found that 55% of individuals summarily removed were never asked about a fear

of persecution, or were not asked anything in a language they understood; 40% of

those who reported fear still were not referred to an asylum officer. ACLU

Foundation, American Exile: Rapid Deportations That Bypass the Courtroom at 4

(Dec. 2014), available at https://www.aclu.org/files/assets/120214-

expeditedremoval_0.pdf; see also Peralta-Sanchez, 847 F.3d at 1145 (Pregerson,

J., dissenting).

Improper removals of individuals with well-founded fears of persecution

have predictably tragic consequences, including rape, sex-trafficking, and murder.

See American Exile at 4 (examples); AR 445-58, 693 (murder by former gang).

8 See also, e.g., 2017 CFI at 18-19 & 2014 CFI at 18 (Sect. VI(B)(1)(d)).



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New post-deportation killings continue to illustrate these risks—which current

policies will only increase. See Marie Friedmann Marquardt, Brother of killed

asylum seeker: ‘Tell the judge he told the truth’, Religion News Service (March 9,

2017), http://religionnews.com/2017/03/09/brother-of-killed-asylum-seeker-tell-

the-judge-he-told-the-truth/. This reality makes it crucial for the Court to correct

the BIA’s errors in defining “particular social groups”—which the panel failed to

do.

B. The panel erroneously upheld the BIA’s convoluted “social distinction” and “particularity” requirements and failed to address the new, heightened particularity standard the BIA applied for members of particular social groups based on former associations—which conflicts with existing law.

The panel decision approved the BIA’s test for membership in a particular

social group without addressing the unlawful standard that the BIA actually

invented and applied here. The Court should rehear the case to reject the BIA’s

overall particularity and social distinction tests and return to the approach set forth

in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), which properly recognizes

social groups defined by immutable or fundamental characteristics, without

additional factors. Amici agree with and incorporate by reference Petitioner’s clear

and forceful argument on this issue. See Pet. for Review at pp. 7-15.

In addition—at a minimum—the Court must reject the BIA’s heightened

particularity requirement for membership in particular social groups based on



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former associations. The panel failed to analyze this new requirement. Instead,

the panel simply held that the “BIA’s articulation of the ‘particularity’ and ‘social

distinction’ requirements” was reasonable and entitled to Chevron deference.

Reyes v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016). This was error.

The BIA purported to “further explain the importance” of its particularity

and social distinction tests “as part of the definition of the phrase ‘particular social

group.’” Matter of W-G-R-, 26 I. & N. Dec. 208, 221-23, 212 n.2 (B.I.A. 2014).

But the BIA’s new analysis contravened both Ninth Circuit and Board precedent,

and imposed an unworkable new requirement that “particularity” be shown with

“further specificity” for particular social group claims based on at least some

former associations.

The BIA rejected Petitioner’s proposed social group because “the group

could include persons of any age, sex, or background.” Id. at 221. But the Ninth

Circuit has repeatedly and “expressly rejected” the idea that breadth and diversity

of members defeats particularity, overruling “precedents [rejecting social groups

that] focus[ed] on the breadth or diversity of membership within a proposed social

group.” See Cordoba v. Holder, 726 F.3d 1106, 1116 (9th Cir. 2013) (citing

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093-94 (9th Cir. 2013)); see also

Perdomo v. Holder, 611 F.3d 662, 668-69 (9th Cir. 2010) (holding that the BIA

could not reject “all women in Guatemala” as a particular social group solely



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because it was broad and internally diverse). Indeed, Cordoba specifically rejected

the reasoning in Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005), one of the

cases upon which the Board relied. See W-G-R-, 26 I. & N. Dec. at 214.

The BIA’s analysis of particularity also conflicts with its own precedent and

the Act. It appears to announce a new particularity rule that “often” applies “when

a former association is the immutable characteristic that defines a proposed group.”

Id. at 221-22. In such cases, the BIA ruled, a group must be “further defined with

respect to the duration or strength of the members’ active participation in the

activity and the recency of their active participation.” Id. (emphasis added). The

BIA could not cite any case supporting such factors, however. See id. at 218-20.

On the contrary, the BIA acknowledged that in Fuentes, it held that “[f]ormer

member[s] of the national police” could be a particular social group without

considering the length or recency of the applicant’s service in the national police.

See id. at 219 (citing Matter of Fuentes, 19 I. & N. Dec. 658, 662 (B.I.A. 1988)).

The BIA’s new rule for groups defined by former associations also conflicts

with its own stated purpose for the rule. According to the BIA, its particularity

requirement serves to “provide a clear benchmark for determining who falls within

the group,” and “[t]he group … must not be amorphous, overbroad, diffuse, or

subjective.” W-G-R-, 26 I. & N. Dec. at 214 (citation omitted). But the BIA’s new

“duration,” “strength,” and “recency” test makes it less clear who falls within the



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group, and invites subjective analysis about the applicant’s level of involvement in

the group.

Moreover, the BIA’s concerns about the outer limits of Reyes’s group of

former Mara 18 members would apply equally to former members of the national

police, or those who oppose oppressive regimes, or those persecuted because of

religious affiliations—all of which have been recognized as particular social

groups or other protected groups.9 All particular social groups will have variation

among members as to duration, strength, and recency. The BIA’s new test is

arbitrary and improper because it singles out certain groups for exclusion based on

a meaningless distinction. It conflicts with the Act and controlling precedent, and

was not entitled to deference.

C. The panel decision permits the BIA to impose an implicit categorical bar on members of particular social groups based on former associations that has no basis in the Act.

The panel also erred because it approved a BIA standard that effectively

creates a new statutory bar on claims by former gang members or others claiming

membership in a particular social group based on past associations, without any

basis in the law. The BIA requirement that the panel ignored imposes an

apparently insurmountable barrier to claims based on former associations. 9 The Board also failed to account for the record evidence that Petitioner was previously a member of a gang, former members of which are a recognized discrete group in El Salvador. See, e.g., AR 110 (Petitioner’s history); AR 354 (government assistance to “former gang members who want to be rehabilitated”).



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1. The Court should clarify that Arteaga v. Mukasey does not require or support the BIA’s bar on particular social group claims based on former associations with gangs.

In combination with the immigration courts’ misinterpretation of this

Court’s decision in Arteaga v. Mukasey as an absolute bar on claims by former

gang members, the panel’s approval of the BIA’s approach to former associations

will amount to an absolute bar on such claims unless this Court clarifies the law.

The Court should also clarify that Arteaga does not impose such a bar, and that

such a bar would be unlawful.

While the BIA decision does not explicitly hold that former membership in a

gang can never support a social group persecution claim, it strongly suggests such

a rule. First, the BIA, misreading Arteaga, stated that “gang membership, whether

a past or present shared experience, generally will not define a particular social

group.” W-G-R-, 26 I. & N. Dec. at 215 n.5 (emphasis added); Arteaga v.

Mukasey, 511 F.3d 940 (9th Cir. 2007).10 The BIA appears to state a general rule

that former gang members can never be a particular social group.11 Second, as

10 The panel decision ignores this issue because the BIA did not rely on Arteaga and “only mentioned Arteaga in a footnote.” Reyes, 842 F.3d at 1138 fn.10. However, this announcement of a nationwide “general” rule that misconstrues this Court’s precedent still risks wide-ranging effects and demands correction. Cf. United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938). 11 Citizenship and Immigration Services interprets Arteaga itself as an explicit rule, finding that “Arteaga held that former gang membership does not constitute a particular social group….” See USCIS Memorandum, at 2 (Mar. 2, 2010) (emphasis added) (available at http://www.uscis.gov/sites/default/files/USCIS



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discussed above, the BIA’s new rule requires that Petitioner provide “further

specificity” to meet the BIA’s particularity requirement—a new element not

required except for particular social groups based on past associations. But the

BIA rule itself provides no specificity, making it simply an arbitrary barrier against

claims based on former gang membership. Thus, the panel’s acceptance of the

BIA’s ruling has raised the bar for former gang members, and others subject to

persecution based on former associations, to an insurmountable height.

A general rule that former gang membership cannot constitute a particular

social group would conflict with both Ninth Circuit and BIA precedent, and the

law of other circuits. Several circuits have rejected such a rule. Benitez Ramos v.

Holder, 589 F.3d 426, 429-30 (7th Cir. 2009); Urbina-Mejia v. Holder, 597 F.3d

360, 366-67 (6th Cir. 2010); Martinez v. Holder, 740 F.3d 902, 906 (4th Cir.

2014). Ninth Circuit law requires the same result. In Pirir-Boc v. Holder, 750

F.3d 1077, 1084 (9th Cir. 2014), the court made clear that the particular social

group analysis requires a “case-by-case determination as to whether the group is

recognized by the particular society in question.” Likewise, the BIA has

consistently held that “[s]ocial group determinations are made on a case-by-case

basis.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251 (B.I.A. 2014); see also

Acosta, 19 I. & N. Dec. at 227 (“The issue of whether an alien’s facts demonstrate

/Laws/Memoranda/2010/Asylum-Ramos-Div-2-mar-2010.pdf) .



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[that she warrants protection] is one that ordinarily must be decided on a case-by-

case basis ….”). The BIA also failed to properly apply the requirement that a

particular social group be defined by an “immutable” characteristic, consistently

affirmed since Matter of Acosta. See id. at 233-234; Henriquez-Rivas v. Holder,

707 F.3d 1081 (9th Cir. 2013) (en banc).

The BIA’s suggestion that former gang members can never establish

membership in a particular social group sets a precedent that improperly threatens

to block bona fide refugees fleeing gang violence from obtaining relief to which

they are entitled. Even those represented by counsel will likely fail to satisfy the

BIA’s heightened requirement, which essentially gives immigration officers or

judges unfettered discretion to reject social group claims based on arbitrary,

subjective standards and without individualized analysis.

2. The panel erred by upholding a BIA rule that implicitly invents a new statutory bar.

Finally, the BIA has no authority to create new categorical bars on asylum or

withholding claims. Along with discussing Arteaga, the Board also justified

rejecting Petitioner’s social group by analogizing former gang members to “per-

secutors and criminals,” who are ineligible for asylum or withholding. W-G-R-, 26

I. & N. Dec. at 215 n.5. The statutory tests for both forms of relief already provide

for certain categorical exclusions (including persecutors), separate from the social

group inquiry. See 8 U.S.C. § 1231(b)(3)(B)(i-iv); 8 U.S.C. § 1158 (b)(2)(A)(i-iv).



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The Court must not permit the BIA to add to the statutory exceptions that Congress

chose to include, or to import a phantom “worthiness” test into defining social

groups. See Benitez Ramos, 589 F.3d at 429–30.

Correcting the BIA’s errors is crucial to protect vulnerable individuals who

were forced into gang membership as children, as well as many others at risk of

persecution who seek relief based on their former associations. Those associations

may include not only former membership in a gang, but also former enslavement

in a trafficking ring. Although the BIA issued its decision here in the context of

former gang members, the rule that it announced (and the panel upheld) has far

broader implications, especially in the current immigration climate.

IV. CONCLUSION

The Court should grant panel and/or en banc rehearing to correct the errors

of the panel opinion.

DATED: March 13, 2017 /s/ Brook Dooley Brook Dooley Keker, Van Nest & Peters LLP Attorneys for the Center for Gender & Refugee Studies, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers Association



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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Circuit Rule

29-2(c)(2) because it contains 3,856 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32 (a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using the Microsoft Word 2010

14-point Times New Roman font.

DATED: March 13, 2017 s/ Brook Dooley Brook Dooley Keker, Van Nest & Peters LLP Attorneys for the Center for Gender & Refugee Studies, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the American Immigration Lawyers Association



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