Submitted: January 9, 2018
Petition for Review of an Order of the Board of Immigration
WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
WOLLMAN, Circuit Judge.
Oswaldo Miranda, a native and citizen of El Salvador,
petitions for review of a Board of Immigration Appeals
(Board) order reversing an Immigration Judge's (IJ)
decision granting Miranda withholding of removal. We deny the
December 12, 2011, the Department of Homeland Security (DHS)
charged Miranda with removal as an alien present in the
United States without having been admitted or paroled.
See 8 U.S.C. § 1182(a)(6)(A)(i). Miranda
admitted to the DHS's factual allegations and conceded
removability. He requested withholding of removal under 8
U.S.C. § 1231(b)(3)(A).
a hearing before the IJ, Miranda testified that he left El
Salvador in 2008 because he was threatened by gang members
and because the country was impoverished. In February 2007,
Miranda was a moto-taxi driver in Quezaltepeque, El Salvador.
One night, three MS-13 gang members stopped him and demanded
a ride to a nearby town. Two of the men entered the back seat
of the taxi, and the third person-a teenage boy-rode in the
front passenger seat. While Miranda drove, one of the men
took out a firearm and shot the boy in the head three times.
After the boy fell out of the moto-taxi, the man pointed the
firearm at Miranda, who stopped the vehicle. Miranda and the
two men exited the moto-taxi, and the gunman shot the boy six
times in the face, telling him, "You got this because
you were talking." Miranda understood that the man shot
the boy because the boy had spoken ill of the MS-13 gang. As
the two men fled, the shooter told Miranda, "You
haven't seen any of this. If you tell anyone about this,
I am going to come back and kill you." Miranda reported
the incident to his employer, the owner of the taxi business,
who did not report it to law enforcement. At that time,
Miranda was a well-known taxi driver and a member of the
one month after the shooting, Miranda saw one of the gang
members at a local market. Miranda felt threatened when the
man said, "They are looking for you. They are looking
for you." Miranda believed the statements meant that the
MS-13 gang wanted him dead or that the victim's family
(who Miranda believed to be associated with the MS-13 gang)
wanted him dead. Miranda had heard through his half-sister
that the victim's family also was looking for him, that
the boy's mother eventually discovered that Miranda was
the driver of the moto-taxi in which her son was shot, and
that the family said, "If [Miranda] didn't talk, he
was going to have to pay the consequences." Miranda
stopped working and stayed at his mother's house. His
mother received threatening phone calls several weeks after
the shooting. On one occasion, she gave five-hundred dollars
to the caller. When Miranda's mother reported the calls
to the police, they told her to change her telephone number.
After she did so, the calls stopped.
found Miranda credible and admitted into evidence the country
report for El Salvador and news articles about crimes against
taxi drivers and about gang violence in El Salvador.
argued that he was entitled to withholding of removal because
the threats against him were motivated by his membership in
the particular social group consisting of "former taxi
drivers from Quezaltepeque who have witnessed a gang
murder." The IJ agreed, concluding that the proposed
group was socially distinct based on (1) Miranda's
testimony that he was a well-known taxi driver and member of
a union and (2) news articles that indicated taxi drivers in
El Salvador are at risk of extortion and other crime. The IJ
further determined that the circumstances of the murder
Miranda had witnessed, as well as the subsequent threats by
gang members and by the victim's family, together
constituted past persecution. Based on the facts establishing
past persecution and the threats that his mother had
received, the IJ determined that Miranda also had proved a
well-founded fear of future persecution. The DHS appealed the
IJ's decision. The Board sustained the appeal, reversed
the grant of withholding of removal, and ordered Miranda
removed to El Salvador, concluding that his proposed
particular social group was not cognizable and that he had
not suffered past persecution.
alien is entitled to withholding of removal if he shows a
clear probability that his life or freedom would be
threatened in the country of removal on account of one of
several protected grounds, including "membership in a
particular social group." 8 U.S.C. § 1231(b)(3)(A);
8 C.F.R. § 1208.16(b). Miranda argues that the IJ
properly granted withholding of removal based upon his
finding that Miranda was a member of a particular social
group and that he had suffered past persecution (and would
suffer future persecution) on account of his membership in
that group. Miranda claims that the Board erroneously applied
a de novo standard of review to the IJ's factual
findings, when it should have reviewed them for clear error.
The government argues that the Board accepted the IJ's
underlying factual findings and properly reviewed de
novo the questions whether those facts satisfied the
definition of "particular social group" or rose to
the level of "persecution."
deciding appeals, the Board reviews the IJ's findings of
fact for clear error and "may review questions of law,
discretion, and judgment and all other issues . . . de
novo." 8 C.F.R. § 1003.1(d)(3)(ii). Whether a group
constitutes a "particular social group" presents a
question of law. Ngugi v. Lynch, 826 F.3d 1132,
1137-38 (8th Cir. 2016); Matter of W-G-R-, 26 I.
& N. Dec. 208, 210 (BIA 2014) ("While the analysis
of a particular social group claim is based on the evidence
presented and is often a fact-specific inquiry, the ultimate
determination whether a particular social group has been
established is a question of law."). Accordingly, the
Board properly reviewed for clear error the IJ's
historical and predictive fact-finding, see 8 C.F.R.
§ 1003.1(d)(3)(i), and it properly reviewed de
novo the question whether those underlying facts met the
legal definitions of "particular
likewise review de novo the question whether a group
consisting of "former taxi drivers from Quezaltepeque
who have witnessed a gang murder" constitutes a
"particular social group" for purposes of
withholding of removal. See Ngugi, 826 F.3d at 1136
(standard of review). A particular social group is "(1)
composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question."
Id. at 1138 (quoting Matter of M-E-V-G-, 26
I. & N. Dec. 227, 237 (BIA 2014)). To be socially
distinct, "there must be evidence showing that society
in general perceives, considers, or recognizes persons
sharing the particular characteristics to be a group. . . .
[I]t must be commonly recognized that the shared
characteristic is one that defines the group."
Matter of W-G-R- 26 I. & N. Dec. at 217.
"[W]hether a social group is cognizable is a fact-based
inquiry made on a case-by-case basis." Matter of
L-E-A-, 27 I. & N. Dec. 40, 42 (BIA 2017).
Board concluded that Miranda's proposed group was not
socially distinct because he did not present evidence that
"'former taxi drivers from Quezaltepeque who have
witnessed a gang murder' will be perceived, considered or
recognized by Salvadoran society to be a distinct social
group." We agree. Although Miranda himself was known for
having worked as a taxi driver in Quezaltepeque and having
witnessed a gang murder, Miranda did not present evidence
that he shared that characteristic with others or that the
characteristic was commonly recognized as defining a
particular social group. Similarly, Miranda did not present
evidence that former taxi drivers are perceived to be a
group. See Matter of Acosta, 19 I. & N. Dec.
211, 234 (BIA 1985) (members of taxi cooperative in El
Salvador did not constitute "particular social
group"), overruled on other grounds by Matter of
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Although
he presented evidence that taxi drivers are at risk for
extortion or crime in El Salvador, there is nothing in the
record to show that former taxi drivers face that same risk.
Moreover, the record does not support the conclusion that
witnessing a gang murder places Miranda in a socially
distinct group, particularly since he did not testify against
any gang members. Compare Ngugi, 826 F.3d at 1138
(witnesses to criminal activities of the Mungiki sect in
Kenya did not constitute "particular social
group"), with Henriquez-Rivas v. Holder, 707
F.3d 1081, 1091-92 (9th Cir. 2013) (en banc) (witnesses who
testified in court against cartel members fulfilled the
social distinction prong ...