Henriquez-Rivas

MEMORANDUM **

Petitioner Rocio Henriquez-Rivas, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) sustaining the government’s appeal of an Immigration Judge’s (“IJ”) grant of asylum, and denying her applications for withholding of removal, and protection under the Convention Against Torture. Henriquez-Rivas witnessed her father’s murder by Mara Salvatrucha (“MS”) gang members and asserted a fear of future persecution on account of her membership in a social group comprised of individuals who testified against gang members in court. The BIA held that Henriquez-Rivas had not established that her proposed group was one within the meaning of the Immigration and Nationality Act (“the Act”) and she therefore failed to establish a nexus to a protected ground.

Henriquez-Rivas contends that she has shown membership in a protected social group because people who testified against gang members in court share a past experience that cannot be changed, and hence, share an immutable characteristic. See Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). As the BIA and this Court have recognized, shared past experience is not…

concurring, joined by RIPPLE, Circuit Judge:

The majority faithfully applies this court’s precedent to hold that petitioner Rocío Henriquez-Rivas’s proposed social group — comprised of people who testified against gang members in El Salvador — is not a “particular social group” under INA § 208(b)(1). I write separately not because I quarrel with the majority’s application of our precedent, but because I question whether those prior holdings best track the language and intent of the INA, or follow the BIA’s published interpretations of § 208(b)(1) — which, given the patent ambiguity in the term “particular social group,” are entitled to Chevron deference. Were I writing on a clean slate — an honor reserved only for an en banc panel — and to accord proper deference to the BIA’s interpretations, I would hold that Henri-quez-Rivas’s proposed group (persons who have risked their lives by testifying in open court against murderous gangs) has sufficient “social visibility” and “particularity” to qualify as a particular social group for purposes of asylum.

At the age of twelve, while living in her native El Salvador, Henriquez-Rivas witnessed her father’s murder at the hands of the Mara…

FILED

NOT FOR PUBLICATION SEP 07 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCIO BRENDA HENRIQUEZ-RIVAS, No. 09-71571

Petitioner, Agency No. A098-660-718

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted June 15, 2011 San Francisco, California

Before: SCHROEDER, RIPPLE,** and BEA, Circuit Judges.

Petitioner Rocio Henriquez-Rivas, a native and citizen of El Salvador,

petitions for review of a decision of the Board of Immigration Appeals (“BIA”)

sustaining the government’s appeal of an Immigration Judge’s (“IJ”) grant of

asylum, and denying her applications for withholding of removal, and protection

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation. under the Convention Against Torture.…