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Law School Case Brief

Tay-Chan v. Holder - 699 F.3d 107 (1st Cir. 2012)


Withholding of removal protects an otherwise removable alien from removal to a country where the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C.S. § 1231(b)(3)(A). Withholding of removal imposes a more stringent burden of proof on an alien than does a counterpart claim for asylum, because the alien must demonstrate a clear probability of persecution, rather than merely a well-founded fear of persecution. An applicant may show that he was subject to past persecution; this creates a rebuttable presumption that he will be subject to future persecution. 8 C.F.R. § 1208.16(b)(1). Alternatively, an applicant may carry this burden by demonstrating that he will more likely than not face future persecution. 8 C.F.R. § 1208.16(b)(2). Under the REAL ID Act of 2005, in addition to meeting his burden of showing persecution, an alien must show that one of the five protected grounds was or will be at least one central reason for his persecution. 8 U.S.C.S. §§ 1158(b) (1)(B)(i)1231(b)(3)(C)


Petitioner Edgar Rolando Tay-Chan was born and lived in Guatemala, where he and members of his family experienced several incidents of violence. He entered the United States sometime in 2003 or 2004. He applied for withholding of removal but the immigration judge (IJ) denied his application and instead granted his application for voluntary departure. The Board of Immigration Appeals (BIA) affirmed the IJ's decision and dismissed the alien's appeal from the decision. Tay-Chan petitioned for review, arguing that the BIA erred by determining that he had not been a victim of past persecution in Guatemala, and holding he was not a member of a particular social group. Tay-Chan also asserted that imposing a requirement of social visibility as to social groups constituted an arbitrary and capricious agency interpretation. Tay-Chan admitted he did not know the motives behind the mistreatment he and his uncle experienced in Guatemala, and that the killings of his brother and cousins were economically motivated. The petition for review was elevated to the federal court of appeals.


Was it proper to deny Tay-Chan's application for withholding of removal?




The court held that the IJ and BIA did not err in concluding that Tay-Chan failed to demonstrate past persecution on account of a protected ground, and such finding meant there was no presumption of future persecution. The BIA reasonably understood Tay-Chan to be claiming that the social group consisted of victims of gang threats and possible extortion. The BIA reasonably rejected that purported social group as overly broad and having insufficient particularity to meet the social group criterion, and explained why. It made no error. Thus, the petition for review was denied and the denial of the application for withholding of removal was affirmed.

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