Minh Nguyen v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINH P. NGUYEN, No. 17-72197

Petitioner,

Agency No.

v. A045-849-861

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 19, 2020

Honolulu, Hawaii

Filed December 21, 2020

Before: J. Clifford Wallace, Carlos T. Bea, and

Mark J. Bennett, Circuit Judges.

Opinion by Judge Wallace

2 NGUYEN V. BARR

SUMMARY *

Immigration

Denying Minh Nguyen’s petition for review of the Board

of Immigration Appeals’ denial of his applications for

asylum and withholding of removal, the panel held that

Nguyen waived review of the Board’s discretionary denial

of asylum relief, and that the Board properly concluded that

Nguyen’s proposed social group comprised of “known drug

users” was not legally cognizable because it lacks

particularity.

Nguyen asserted a fear of persecution in Vietnam,

including possible placement in a compulsory drug

rehabilitation center, based on his prior drug use history and

criminal record.

The panel held that Nguyen waived review of the

Board’s discretionary denial of asylum relief by failing to

contest that aspect of the Board’s decision in his opening

brief, and instead raising it for the first time in his reply brief.

The panel also held that the Board correctly concluded

that Nguyen’s proposed social group of “known drug users”

lacked particularity under the standards set forth in Matter of

M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of

W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). The panel

explained that “drug” and “user” are broad terms that cause

the proposed group to lack definable boundaries and to be

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

NGUYEN V. BARR 3

amorphous, overbroad, diffuse, or subjective. The panel

observed that although Nguyen asserted that the term “drug”

encompassed any narcotic that is illegal in Vietnam, he did

not provide any evidence on the Vietnamese societal view,

or Vietnamese criminal law, for which drugs could lead to

compulsory rehabilitation. The panel also agreed with the

Board that the term “user” is vague and could vary broadly

based on the amount and frequency of an individual’s drug

use, and could encompass first-time users, occasional users,

habitual users, or rehabilitated individuals like Nguyen.

COUNSEL

Carmen DiAmore-Siah (argued), Law Office of Carmen Di

Amore-Siah, Honolulu, Hawai‘i, for Petitioner.

Tim Ramnitz (argued), Attorney; Jennifer P. Levings, Senior

Litigation Counsel; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

WALLACE, Circuit Judge:

Minh Nguyen petitions from the Board of Immigration

Appeals’ (Board) denial of his applications for asylum and

withholding of removal.

Nguyen is a native citizen of Vietnam. He was admitted

to the United States through a family-based visa petition as

a lawful permanent resident in 1997. Nguyen has an

extensive criminal record that eventually caused the

4 NGUYEN V. BARR

Department of Homeland Security (Department) to initiate

removal proceedings. After numerous hearings, the

Immigration Judge (IJ) granted Nguyen’s applications for

asylum and withholding of removal. The IJ held that

Nguyen had established his membership in a cognizable

particular social group: known drug users. The IJ also held

that Nguyen had established a well-founded fear of future

persecution due to the 2008 repatriation agreement between

the United States and Vietnam, which requires the United

States to share a deportee’s criminal record, and due to

Vietnam’s policy of placing known drug users in

compulsory rehabilitation centers. The IJ acknowledged that

Nguyen had been sober for ten years, so it was not clear

whether Vietnam would consider him to be a current drug

user in need of rehabilitation; nonetheless, she found a

sufficient risk of persecution.

The Board reversed and held that the IJ committed clear

error by granting the applications. The Board reasoned that

Nguyen’s proposed particular social group lacks

particularity. The Board also determined that the IJ clearly

erred in her decision that Nguyen had established a well-

founded fear of future persecution because there was no

evidence that prior users “with old conviction records are

similarly targeted” for compulsory drug rehabilitation.

Finally, the Board held that the IJ erred in her decision that

Nguyen merited asylum as a matter of discretion, because

she did not consider his lengthy criminal record or his

mother’s residency in Vietnam. Nguyen petitions us for

review of the Board’s denial of his applications for asylum

and withholding of removal.

We have jurisdiction pursuant to 8 U.S.C. § 1252. Our

review is limited to the Board’s decision where it “conducts

its own review of the evidence and law rather than adopting

NGUYEN V. BARR 5

the IJ’s decision . . . except to the extent that the IJ’s opinion

is expressly adopted.” Reyes v. Lynch, 842 F.3d 1125, 1140

(9th Cir. 2016) (citation and quotation marks omitted). We

review the IJ’s factual findings for substantial evidence.

Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). We

review questions of law, such as whether a proposed

particular social group is cognizable, de novo. Perdomo v.

Holder, 611 F.3d 662, 665 (9th Cir. 2010). We deny the

petition for review.

I.

Nguyen became a lawful permanent resident of the

United States in 1997, but he was never naturalized. Nguyen

has been arrested numerous times in five different states for

offenses such as theft, domestic violence, possession of

controlled substances, public intoxication, and driving under

the influence. Nguyen visited his family in Vietnam in 2014.

When he attempted to reenter the United States, Customs

and Border Patrol deemed Nguyen to be an applicant for

admission due to one of his drug convictions.

The Department served Nguyen with a Notice to Appear

for removal proceedings and charged him as inadmissible

due to his controlled substance offense identified by

Customs and Border Patrol, pursuant to 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). He admitted five of the six

allegations contained in the notice. Nguyen applied for

cancellation of removal for certain permanent residents,

pursuant to 8 U.S.C. § 1229b(a), as well as asylum,

withholding of removal, and relief pursuant to the

Convention Against Torture (CAT). Nguyen insisted that he

feared returning to Vietnam because he is a Buddhist and a

member of two proposed particular social groups. The first

proposed group is comprised of “relatives of soldiers that

6 NGUYEN V. BARR

directly opposed the communist government,” and the

second is comprised of “known drug users.”

Subsequently, Nguyen conceded that he was ineligible

for a waiver of inadmissibility. Consequently, Nguyen’s

merits hearing before the IJ focused on his applications for

asylum, withholding of removal, and CAT status. Nguyen’s

brother testified about the family’s Buddhist practice, their

mother’s continued adherence to Buddhism once she

returned to Vietnam in 2010, and Nguyen’s trip to Vietnam

in 2014 when he performed a Buddhist ritual without

interference from the Vietnamese government. His brother

believed that Nguyen might encounter problems with the

Vietnamese government upon his repatriation due to his

criminal record and drug use, but Nguyen’s brother

acknowledged that he did not know the law in Vietnam.

Nguyen testified about his fear of removal due to his

criminal record and drug use history, as well as his desire not

to live in Vietnam because he believes “life in Vietnam is

very difficult.” Even so, he admitted to visiting Vietnam in

the past without incident.

After the hearing before the IJ, Nguyen sought to

withdraw his applications for relief and agreed to return to

Vietnam if the U.S. government would not notify the

Vietnamese government of his convictions. The Department

insisted that the case proceed to the merits to resolve his

religious persecution claim and because it could not find a

direct flight from Hawaii to Vietnam to ensure Nguyen’s

return to Vietnam. At a hearing preceding the IJ’s decision,

Nguyen waived his application for CAT status after the IJ

notified the parties that she would grant at least Nguyen’s

application for asylum. Ultimately, the IJ granted Nguyen’s

applications for asylum and withholding of removal.

However, the IJ rejected Nguyen’s alleged fear based on his

NGUYEN V. BARR 7

Buddhism and political opinions, and she found him

ineligible for cancellation of removal.

The Department appealed to the Board. It challenged the

particular social group finding and the well-founded fear of

future persecution finding, emphasizing that Nguyen had not

presented any evidence that he would be placed in a drug

rehabilitation center or that placement in a center would

qualify as persecution. The Department also argued that

Nguyen did not merit a favorable exercise of discretion for

his asylum application due to his lengthy and serious

criminal record. The Board sustained the Department’s

appeal. The Board held that the IJ clearly erred in her

findings and reversed the grant of Nguyen’s applications.

Nguyen petitions for review of the Board’s denial of his

applications for asylum and withholding of removal.

Nguyen argues two points in his petition for review. The

first is that the Board erred in holding that his proposed

particular social group of “known drug users” is not

cognizable. The second is that the Board erred in holding

that Nguyen had not established a well-founded fear of

future persecution.

II.

We first hold that Nguyen has waived review of the

Board’s discretionary denial of asylum because he did not

contest this aspect of the Board’s decision in his opening

brief. Nguyen cannot preserve this issue for review when he

raised it for the first time in his reply brief. See Singh v.

Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004) (holding

that issues not raised in a petitioner’s opening brief are

waived). Our review of the discretionary denial of asylum

is, therefore, waived.

8 NGUYEN V. BARR

III.

The Board’s rejection of Nguyen’s proposed particular

social group as not cognizable was correct. Nguyen argues

that the Board misapplied its precedent regarding “social

visibility” because he would become “visible” to

Vietnamese prosecutors due to the repatriation agreement

that requires disclosure of his criminal record. We reject this

nonsensical argument, as it conflates the particularity factor

with the social distinction factor. Nguyen also

impermissibly attempts to change his argument in his reply

brief, wherein he argues that the Board applied the

particularity factor too narrowly and ignored a

commonsense understanding of drug user. We disagree.

The Board was correct in rejecting Nguyen’s proposed group

as lacking particularity.

The Attorney General has discretion to grant asylum to a

refugee pursuant to the Immigration and Nationality Act.

8 U.S.C. § 1158(b)(1)(A). To qualify as a refugee, Nguyen

must prove that he is unwilling or unable to return to

Vietnam due to “persecution or a well-founded fear of

persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion.” § 1101(a)(42). Membership in the group must be

“at least one central reason” for Nguyen’s feared

mistreatment. § 1158(b)(1)(B)(i); see also Parussimova v.

Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). To qualify for

withholding of removal, Nguyen must demonstrate that his

life would be threatened if he were removed to Vietnam

because of one of five enumerated grounds, including

membership in a particular social group. 8 U.S.C.

§ 1231(b)(3)(A); see also Reyes, 842 F.3d at 1132 n.3

(establishing the existence of a cognizable particular social

group is a separate requirement from establishing

NGUYEN V. BARR 9

membership in the group). For purposes of withholding,

membership in the group must be “a reason” for Nguyen’s

feared mistreatment. 8 U.S.C. § 1231(b)(3)(C); see also

Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir.

2017).

The phrase “particular social group” is ambiguous.

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.

2013). Thus, the IJ’s and the Board’s interpretation of that

term is entitled to Chevron deference, so long as it is

reasonable. Id. at 1087 (holding that the Board’s

construction must be accepted if reasonable, even if not the

best interpretation). We have endorsed two companion

Board decisions that clarified the elements underlying the

particular social group analysis: Matter of M-E-V-G-, 26 I.

& N. Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I. &

N. Dec. 208 (BIA 2014). See Reyes, 842 F.3d at 1135

(“[T]he BIA’s interpretation of W-G-R- and M-E-V-G- of the

ambiguous phrase ‘particular social group’ . . . is reasonable

and entitled to Chevron deference”). Therefore, when we

review the particular social group determination in an

individual case, we ask the legal question of whether the IJ

or the Board reasonably applied the W-G-R- and M-E-V-G-

standard in a manner consistent with precedent.

In Matter of M-E-V-G-, the Board held that the applicant

must establish that the group in which membership is

claimed must be: “(1) composed of members who share a

common immutable characteristic, (2) defined with

particularity, and (3) socially distinct within the society in

question.” 26 I. & N. Dec. at 237.

In Matter of W-G-R-, the Board further defined each

factor. See 26 I. & N. Dec. at 212–18. The common

immutable characteristic has been defined as one “that the

members of the group either cannot change, or should not be

10 NGUYEN V. BARR

required to change because it is fundamental to their

individual identities or consciences.” Id. at 212 (citation

omitted). The particularity element requires characteristics

that “provide a clear benchmark for determining who falls

within the group,” wherein the relevant society must have a

“commonly accepted definition[]” of the group. Id. at 214.

“The group must also be discrete and have definable

boundaries—it must not be amorphous, overbroad, diffuse,

or subjective.” Id. Social distinction requires evidence “that

society in general perceives, considers, or recognizes

persons sharing the particular characteristic to be a group.”

Id. at 217; see also Cordoba v. Barr, 962 F.3d 479, 482–83

(9th Cir. 2020).

We affirm the Board’s holding that Nguyen failed to

establish “known drug users” as a cognizable particular

social group under the standard set forth in W-G-R- and M-

E-V-G-. The Board was correct that Nguyen’s proposed

group lacked particularity. Even if we ignore the ambiguity

of the term “known,” “drug” and “user” are broad terms that

cause the proposed group to lack definable boundaries and

to be amorphous, overbroad, diffuse, or subjective. Nguyen

asserts that “drug” encompasses any narcotic that is illegal

in Vietnam. Yet he does not provide any evidence on the

Vietnamese societal view, or Vietnamese criminal law, for

which drugs could lead to compulsory rehabilitation.

We also agree with the Board that the term “user” is

vague and could vary broadly based on the amount and

frequency of an individual’s drug use. It could encompass

first-time users, occasional users, habitual users, or

rehabilitated individuals like Nguyen. Finally, Nguyen’s

focus on “social visibility” misses the mark. The Board

explicitly based its denial on Nguyen’s failure to establish a

cognizable particular social group due to the lack of

NGUYEN V. BARR 11

particularity of “known drug user” rather than lack of social

distinction. Ultimately, W-G-R- and M-E-V-G- are clear that

Nguyen bears the burden of proving the alleged “particular

social group” is particularized, socially distinct, and based

on an immutable characteristic. He failed to satisfy that

burden.

We affirm the Board’s denial of Nguyen’s applications

for asylum and withholding of removal. We do not reach the

question of whether the Board erred in rejecting Nguyen’s

well-founded fear of persecution because he failed to

establish a cognizable particular social group.

DENIED.