Anibal Yobani Sical-Toj, a native of Guatemala, entered the United States without authorization after gang members assaulted him and robbed his grandmother's home because he refused to join them. He sought asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge denied relief, finding he had not shown persecution based on a protected ground or a risk of torture. The Board of Immigration Appeals affirmed the denial of asylum and withholding on the merits and denied Convention relief because Sical-Toj had not raised that specific claim on appeal. Sical-Toj then petitioned the Third Circuit for review, arguing he belonged to a particular social group of young men recruited into gangs or killed for refusing to join.
The Third Circuit reviewed the Board's factual findings for substantial evidence and legal conclusions de novo. The court focused on the definition of a cognizable particular social group, which must exist independently of the persecution suffered by the applicant. The court rejected Sical-Toj's proposed group of 'young men that are recruited into gangs or killed if they refuse' because the key defining characteristic was that members are killed after refusing to join—a description of the persecution itself. Citing Lukwago v. Ashcroft and Escobar v. Gonzales, the court explained that 'the persecution cannot be what defines the contours of the group.' Furthermore, the court found the group lacked social distinctness. Under Guzman Orellana v. Att'y Gen., a group must be perceived as a group by society. The court noted that mere targeting by a gang does not make the target a distinct social group, as such individuals are 'not in a substantially different situation from anyone who has crossed the gang, or who is perceived to be a threat to the gang's interests.' Because the proposed group failed both the independence and distinctness requirements, the asylum and withholding claims failed. The court also declined to address the argument regarding past persecution and age, as the asylum claim was already doomed. Finally, the court dismissed the Convention Against Torture challenge because Sical-Toj failed to exhaust that issue before the Board, citing 8 U.S.C. § 1252(d)(1).
The decision affirms the Board of Immigration Appeals' denial of relief, leaving Sical-Toj without asylum or withholding of removal. It reinforces the strict requirement that a particular social group cannot be defined by the persecution itself and must be socially distinct in the eyes of the community. The ruling also clarifies that challenges to Convention Against Torture relief must be fully exhausted before the Board to be reviewable by the federal courts. No remand instructions were issued as the petition was denied and the Convention challenge dismissed.
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