Diego F. Castillo-Arias v. U.S. Attorney General, (11th Cir. 2006)

Text

---

[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT

FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

N o . 04-14662

A p r il 20, 2006

T H O M A S K. KAHN

CLERK

B IA Nos. A74-661-613 & A74-661-614

D IE G O F. CASTILLO-ARIAS,

MARTHA L. RINCON-ESCOBAR,

ANDRES F. CASTILLO-RINCON,

DIEGO F. CASTILLO-RINCON,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(A p ril 20, 2006)

B e fo r e BIRCH and MARCUS, Circuit Judges, and NANGLE *, District Judge.

B I R C H , Circuit Judge:

*

Honorable John F. Nangle, United States District Judge for the Eastern District of

Missouri, sitting by designation.

P rev io u sly, we remanded this case to the Board of Immigration Appeals ("B IA ") to determine whether noncriminal informants working against the Cali d ru g cartel constitute a "particular social group" within the meaning of that phrase in the Immigration and Nationality Act ("INA"), 8U.S.C. § 1101 et seq. The BIA co n clu d ed they did not. In this appeal, applying deferential review, we ask w h eth er the BIA's interpretation of this statutory provision is reasonable.

Concluding that it is, we DENY, with consternation, the petition for review of the B IA 's order dismissing the appeal of Diego F. Castillo-Arias, Martha L. RinconE sco b ar, Andres F. Castillo-Rincon, and Diego F. Castillo-Rincon (collectively "C astillo s") from the immigration judge's ("IJ's") order denying their application seek in g asylum and withholding of deportation.

I. BACKGROUND W e incorporate the following facts and procedural history, which are not in d is p u te , from our previous decision in this case: D ieg o Castillo-Arias ("Castillo-Arias") was born and raised in C ali, Colombia, the headquarters of the infamous Cali drug cartel.1 J o in e d by his wife, Martha Rincon-Escobar, and his two sons, Andres C astillo -R in co n and Diego Castillo-Rincon, Castillo-Arias operated a b ak ery in Cali and resided in the city until 1996. During that time, C a stillo - A r ia s was an acquaintance of Arturo Davila, a former p o licem an in the Cali Police Department who, after being fired for co rru p tio n , became the chief of security for the Cali cartel. CastilloA r ia s also happened to be a good friend of Vladimir Martinez Meza, w h o was responsible for investigating and prosecuting narcotics traffick ers in Cali.

Between 1990 and 1994, Davila would visit Castillo-Arias's b ak ery on the weekends and chat openly and brazenly about his in v o lv em en t with the Cali cartel. During these conversations, Davila w o u ld identify people, places and events related to the cartel's ex p o rtatio n of narcotics from Colombia to the United States and E u ro p e. Castillo-Arias, as a civic-minded citizen of Cali, passed the in f o r m a tio n he learned from Davila along to Meza. He told Meza ab o u t Davila's statements that the cartel had declared war against the C o lo m b ian government and that the cartel would kill politicians who o p p o s e it. Castillo-Arias also disclosed the extent, location and size o f the assets of the Cali cartel, including banks, bank accounts, m an sio n s, haciendas, and villas both within and outside Colombia.

Castillo-Arias's good deeds would not go unpunished. On May 1 5 , 1995, as Castillo-Arias was watching his son Andres ride his b ic yc le in the street, a car suddenly blocked their path and three men e m e rg e d armed with pistols and an automatic weapon. The men tried to force Castillo-Arias into the car, but he resisted and was pushed to th e ground and beaten. His beating caused Andres to scream loudly, an d one of the men pistol-whipped Andres in the face. Andres's scream and the accompanying commotion prompted people in the n eig h b o rh o o d to emerge from their homes, and the men fled in their car. As they departed, they told Castillo-Arias that things would only g et worse for him and his family. Castillo-Arias then took his son to a clin ic, where he needed reconstructive surgery to repair his mouth and ja w .

T h e Castillos went to Castillo-Arias's parents' home in the n o r th e r n section of Cali for the rest of the month. Castillo-Arias a tte m p te d to rent his bakery while they were away, but his lessees w ere intimidated by individuals who would inquire about him, and on m o re than one occasion, a lessee was harmed after he refused to d iv u lg e information regarding Castillo-Arias's whereabouts. Although C a stillo - A r ia s had never been involved in politics and had never te stif ie d against the cartel in a drug trial, Meza recommended that C a stillo - A r ia s go into hiding and, ultimately, leave Colombia.2 After C astillo -A rias made two trips to the United States in 1995, the C a stillo s entered the United States in February 1996 as B-2 visitors fo r pleasure with authorization to remain in the country until August 8 , 1996.

....

On December 10, 1996, in accordance with 8U.S.C. § 1 2 2 9 ( a) (1 ) , the Immigration and Naturalization Service ("the INS") is su e d show cause orders to the Castillos, charging them under 8 U .S .C . § 1227(a)(1)(B) with having remained in the United States for a longer time than permitted. At the show cause hearing, the Castillos ad m itted the factual allegations in the show cause orders and co n ced ed the charge of deportability. At that time, through counsel, th ey requested relief from deportation in the form of asylum, w ith h o ld in g of deportation, or at the very least, voluntary departure.3 Following a hearing on their requests for relief, [the IJ] denied th e Castillos' applications for asylum and withholding of deportation.

Initially, the IJ noted that an alien is eligible for asylum under 8 U .S .C . § 1158(b)(1) only if he or she is a "refugee," which is defined a s an alien who is unable or unwilling to return to his or her country o f origin because of "persecution or a well-founded fear of p ersecu tio n on account of race, religion, nationality, membership in a p articu lar social group, or political opinion." 8U.S.C. § 1 1 0 1 ( a) (4 2 ) (A ) . The IJ concluded that even if the Castillos have a fear of harm, that harm does not arise on account of race, religion, n a tio n a lity , membership in a particular social group, or political o p in io n . Instead, the IJ concluded, the threat to the Castillos was 2 Meza left Colombia for Spain, and it appears that Davila may have been murdered.

3 It also appears that Castillo-Arias, on behalf of his entire family, had filed an application for asylum with the INS before the show cause orders were issued. b as ed on "retaliation" or "retribution" due to Castillo-Arias's v o lu n ta ry decision to be an informant against the cartel. (Admin Rec. at 103, 104). On this basis, the IJ denied the Castillos' applications f o r asylum. And because the Castillos failed to meet the lower burden o f proof for establishing eligibility for asylum, the IJ denied w ith h o ld in g of deportation because they could not satisfy the higher b u r d e n of proof to qualify for such relief. See 8U.S.C. § 1253(h)(1) (1 9 9 4 ); Al Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001).

The IJ granted the Castillos' requests for voluntary departure and en tered an alternative order of deportation to Colombia.

The Castillos timely filed an appeal to [the BIA]. On appeal, C astillo -A rias and his family argued that they qualified as "refugees" u n d er 8U.S.C. § 1101(a)(42)(A) because they suffered a wellf o u n d e d fear of persecution based on (1) a political opinion imputed to Castillo-Arias by the drug cartel and (2) his membership in a p a r tic u la r social group, namely, a group composed of non-criminal in fo rm an ts. The BIA rejected their first argument, holding that the p e o p le who threatened the Castillos did so "out of personal motives a n d not due to any political opinion imputed to [Castillo-Arias]." (Admin. Rec. at 9.) Although the BIA did not separately address their c la im based on membership in a particular social group, the BIA u ltim a te ly concluded that the record contained insufficient evidence th at there was any motivation other than revenge for the aid CastilloA rias provided to the government, and wrote that "[w]e agree with the Im m ig ratio n Judge's well-reasoned decision that the respondents have failed to adequately establish that they suffered past persecution or th a t they have a well-founded fear of persecution on account of a g r o u n d protected under the Immigration and Nationality Act." (Id. at 8 -9 .) As a result, the BIA affirmed the IJ's decision and dismissed the a p p e a l.

Castillo-Arias v. U.S. Att'y Gen., No. 02-12125, slip op. at 2-7 (11th Cir. 25 A u g . 2003) (per curiam) (certain footnotes omitted or renumbered). In that prior appeal, we held that the facts of the case were essentially u n d isp u ted , and the only issue was the application of the INA. CastilloA r ia s, No. 02-12125, slip. op. at 7. We affirmed the BIA's conclusion that C a stillo - A r ia s was not persecuted on account of his political opinion. Id. at 1 1 - 1 2 . However, we held that the BIA's conclusion that Castillo-Arias was ta rg e te d by the cartel solely out of revenge was not supported by substantial ev id en ce. Id. at 12-13. Though there was evidence of revenge, a reasonable f ac tf in d e r would be compelled to conclude that Castillo-Arias produced ev id en ce that the harm was motivated by his membership in a group co m p o sed of noncriminal informants. Id. at 13. We then remanded the case to the BIA to decide the sole issue here on appeal, i.e., if noncriminal in fo rm an ts constitute a "particular social group" within the meaning of the p h rase in the INA, 8U.S.C. § 1101(a)(42)(A). Castillo-Arias, No. 021 2 1 2 5 , slip op. at 14-15.

O n remand, the BIA concluded that noncriminal informants did not co n stitu te a "particular social group." The BIA relied on Matter of Acosta, 1 9 I. & N. Dec. 211, 233-34 (BIA 1985), overruled on other grounds by M atter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987), as authority for th e premise that a "`particular social group'" refers to persons who "`share a c o m m o n , immutable characteristic.'" R1 at 54 (quoting Matter of Acosta, 1 9 I. & N. Dec. at 233). Reiterating Acosta, the BIA stated that members of a particular social group are those persons with a "`shared characteristic. . . s u c h as sex, color, or kinship ties, or in some circumstances . . . a shared p ast experience such as former military leadership or land ownership.'" Id.

(q u o tin g Matter of Acosta, 19 I. & N. Dec. at 233). The BIA noted that this ch aracteristic "`must be one that the members of the group either cannot ch an g e, or should not be required to change because it is fundamental to th e ir individual identities or consciences.'" Id. (quoting Matter of Acosta, 1 9 I. & N. Dec. at 233). It is only in these circumstances that membership in a "particular social group" becomes comparable to the other grounds listed in the statute. Id. While reiterating its continued adherence to the Acosta f o r m u la tio n , the BIA's decision also referenced guidelines from the United N a tio n s High Commissioner for Refugees ("UNHCR"), which define a p a r tic u la r social group as [ a] group of persons who share a common characteristic other th an their risk of being persecuted, or who are perceived as a g ro u p by society. The characteristic will often be one which is in n ate, unchangeable, or which is otherwise fundamental to id en tity, conscience or the exercise of one's human rights.

Id. at 55 (citing UNHCR, Guidelines on International Protection: "M em b ersh ip of a particular social group" within the Context of Article 1 A (2 ) of the 1951 Convention and/or its 1967 Protocol relating to the Status o f Refugees, ¶ 11, U.N. Doc. HCR/GIP/02/02 (May 7, 2002) [hereinafter "U N H C R Guidelines"]).

The BIA then considered whether Castillo-Arias's past acts were "the k in d of shared past experience that constitutes membership in a particular s o c ia l group." Id. at 57. In applying the Acosta formulation, the BIA listed tw o major considerations: (1) immutability and (2) social visibility. Id. at 5 7 -5 9 . In analyzing immutability, the BIA conceded that "[a] past ex p erien ce is, by its very nature immutable, as it has already occurred and c an n o t be undone." Id. at 57. The BIA noted, however, that this fact "does n o t mean that any past experience that may be shared by others suffices to d efin e a particular social group for asylum purposes." Id.

Analogizing noncriminal informants to occupations like the police or m ilita ry , the BIA stated that "we do not afford protection based on social g ro u p membership to persons exposed to risks normally associated with em p lo ym en t in [such] occupations." Id. (citing Matter of Fuentes, 19 I. & N . Dec. 658 (BIA 1988)). While noting that a former member of the n a tio n a l police could conceivably demonstrate membership in a particular s o c ia l group, the BIA cautioned that "if a former police officer were singled o u t for reprisal, not because of his status as a former police officer, but b ecau se of his role in disrupting particular criminal activity, he would not be c o n s id e r ed , without more, to have been targeted as a member of a particular s o c ia l group." Id. The BIA further concluded that those who accept such e m p lo y m e n t are aware of the risks involved in the disruption of criminal a ctiv ity . Id. Similarly, the BIA noted that those who inform on criminal activ ity are also aware of similar dangers. It also dismissed the distinction b e tw e en compensated informants and uncompensated, civic-minded in fo rm an ts as "not particularly helpful in addressing the question of who is d eserv in g of protection under the asylum law." Id. at 57.

In analyzing social visibility, the BIA stressed that its "other decisions r ec o g n iz in g particular social groups involved characteristics which were h ig h ly visible and recognizable by others in the country in question." Id. at 5 8 . The BIA noted that the two illustrations provided in Acosta, "`former m ilitary leadership and land ownership'­­are also easily recognizable traits." Id. (quoting Matter of Acosta, 19 I. & N. Dec. at 234). Once again r ef er en c in g the UNHCR Guidelines, the BIA stated that while "`persecutory actio n toward a group may be a relevant action in determining the visibility o f a group in a particular society,'" the social group was not meant to be a c atc h - all and "`cannot be defined exclusively by the fact that it is targeted fo r persecution.'" Id. (quoting UNHCR Guidelines ¶¶ 2, 14 (emphases in o r ig in a l) ).

W ith regard to confidential informants, the BIA noted that "the very n atu re of the conduct at issue is such that it is generally out of the public v ie w ," and it thereby concluded that informants lacked the necessary social v isib ility to be recognized as a "particular social group." Id. In ultimately d e n y in g Castillo-Arias's appeal and affirming the IJ's decision, the BIA raised additional concerns about the numerosity and inchoateness of in fo rm an ts and noted that the cartels have been known to target the p o p u latio n in general in order to intimidate potential witnesses and anyone p erceiv ed to have interfered with its operations. Id. at 59. The Castillos th en timely appealed the BIA's decision.

II. DISCUSSION A . Standard of Review T o the extent that the BIA's decision was based on a legal d eterm in atio n , review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1 2 4 7 -4 8 (11th Cir. 2001). However, as we noted in our previous decision, "[d e novo] review of the BIA's interpretation is informed by the principle of d eferen ce articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984)." CastilloA rias, No. 02-12125, slip op. at 9-10. T h e Supreme Court has established a two-step process for reviewing an agency's interpretation of a statute which it administers. Chevron, 467 U .S . at 842-44, 104 S. Ct. at 2781-82. First, if congressional purpose is clear, courts and administrative agencies "must give effect to the u n a m b ig u o u s ly expressed intent of Congress." Id. at 842-43, 104 S. Ct. at 2 7 8 1 . A second level of review, however, is triggered when "the statute is silen t or ambiguous with respect to the specific issue." Id. at 843, 104 S. Ct. a t 2782. "In such a case, a court may not substitute its own construction of a statu to ry provision for a reasonable interpretation made by the administrator o f an agency." Id. at 844, 104 S. Ct. at 2782; see also INS v. AguirreA g u ir re , 526 U.S. 415, 425, 119 S. Ct. 1439, 1445 (1999) ("[T]he BIA sh o u ld be accorded Chevron deference as it gives ambiguous statutory terms co n crete meaning through a process of case-by-case adjudication." (q u o tatio n s omitted)); Mazariegos v. Office of U.S. Att'y Gen., 241 F.3d 1 3 2 0 , 1327 n.4 (11th Cir. 2001) ("The degree of deference is especially great in the field of immigration."). An agency's interpretation is deemed reaso n ab le unless it is "arbitrary, capricious, or clearly contrary to law." A lab am a Power Co. v. Fed. Energy Regulatory Comm'n, 22 F.3d 270, 272 ( 1 1 th Cir. 1994). A t issue in this case is the BIA's interpretation of the statutory phrase "p articu lar social group." Under the INA, an alien who arrives in or is p resen t in the United States may apply for asylum. 8U.S.C. § 1158(a)(1).

The BIA, through the Attorney General, has the discretion to grant asylum if th e alien meets the INA's definition of a "refugee." See id. § 1158(b)(1)(A); A l Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In addition, th e asylum applicant carries the burden of proving statutory "refugee" status.

Al Najjar, 257 at 1284. In relevant part, a "refugee" is an y person who is outside any country of such person's n atio n ality or, in the case of a person having no nationality, is o u tsid e any country in which such person last habitually resid ed , and who is unable or unwilling to return to, and is u n ab le or unwilling to avail himself or herself of the protection o f , that country because of persecution or a well-founded fear o f persecution on account of race, religion, nationality, m em b ersh ip in a particular social group, or political opinion.

8U.S.C. § 1101(a)(42)(A) (emphasis added). With regard to withholding of d ep o rtatio n (now removal), the Attorney General may not deport an alien if h is life or freedom would be threatened in that country because of "race, r elig io n , nationality, membership in a particular social group, or political o p in io n ." 8U.S.C. § 1253(h)(1) (1994) (emphasis added) (now codified at 8 U .S .C . § 1231(b)(3)(A)). C o n g ress did not directly speak on the issue of what constitutes a "p articu lar social group," one of the five listed categories that qualify for refu g ee status or withholding of deportation, within the meaning of the INA.

See 8U.S.C. § 1101(a)(42)(A); id. § 1253(h)(1) (1994) (now codified at 8 U .S .C . § 1231(b)(3)(A)). Accordingly, we must follow the BIA's d e te rm in a tio n that noncriminal informants working against the Cali cartel are not a social group under the INA unless the interpretation is u n r ea so n a b le , i.e., arbitrary, capricious, or clearly contrary to law. See A lab am a Power Co., 22 F.3d at 272.

B. Whether the BIA's Interpretation Is Reasonable T h e Castillos argue that the BIA's interpretation of "particular social g ro u p ," which excludes noncriminal informants working against the Cali d r u g cartel, was unreasonable. In so doing, they contend that other social g ro u p s that have qualified under the INA are neither more visible nor r ec o g n iz ab le than noncriminal informants or former informants. They fu rth er assert that the BIA put forth contradictory rationales in concluding th at noncriminal informants do not qualify as a particular social group.

Additionally, they contend that Castillo-Arias's family members have s u f fe re d derivative persecution on the basis of his status as a noncriminal in f o r m a n t.

T o date, we have not expressly reviewed, under Chevron, the BIA's leg al definition of "particular social group." There are six circuits who have d eferred to the Acosta formulation. See Thomas v. Gonzales, 409 F.3d 1 1 7 7 , 1184-87 (9th Cir. 2005) (en banc); Niang v. Gonzales, 422 F.3d 1187, 1 1 9 9 (10th Cir. 2005); Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005); C astellan o -C h aco n v. INS, 341 F.3d 533, 546-48 (6th Cir. 2003); Lwin v. IN S , 144 F.3d 505, 511-12 (7th Cir. 1998); Fatin v. INS, 12 F.3d 1233, 1 2 3 8 -4 0 (3d Cir. 1993). Two circuits, while not expressly deferring to the B IA 's legal definition of "particular social group," have viewed Acosta fav o rab ly. See Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004) (citin g the Acosta formulation in support of including "family" within "p articu lar social group"); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352 (5 th Cir. 2002) (citing to Acosta and restating the Acosta formulation). Two o th e r circuits, however, may differ in some respects with the general d efin itio n as stated in Acosta. See Safaie v. INS, 25 F.3d 636, 640 (8th C ir . 1994) (noting that the "principal concern [regarding a "particular social g r o u p " ] is a `voluntary associational relationship among the purported m em b ers, which imparts some common characteristic that is fundamental to th e ir identity as a member of that discrete social group'" (citation omitted)), su p erced ed by statute on other grounds recognized by Rife v. Ashcroft, 374 F .3 d 606, 614 (8th Cir. 2004); Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1 9 9 1 ) (defining "a particular social group" as "comprised of individuals who p o ssess some fundamental characteristic in common which serves to d istin g u ish them in the eyes of a persecutor­or in the eyes of the outside w o rld in general").

As an initial matter, we join our sister circuits who have deferred to th e BIA's Acosta formulation of "particular social group." The expertise n ecessary to craft this definition is well within the BIA's bailiwick and is n eith er arbitrary, capricious, nor clearly contrary to law. See Alabama P o w er Co., 22 F.3d at 272. We do not doubt the reasonableness of the B IA 's requirement of a "common, immutable characteristic . . . [that] is fu n d am en tal to [its members'] individual identities or consciences," which is c o n s o n a n t with the purposes that underlie the other four grounds for refugee s ta tu s or withholding of deportation under the INA. See Matter of Acosta, 1 9 I. & N. Dec. at 233-34. Furthermore, Acosta strikes an acceptable b alan ce between (1) rendering "particular social group" a catch-all for all g ro u p s who might claim persecution, which would render the other four categ o ries meaningless, and (2) rendering "particular social group" a nullity b y making its requirements too stringent or too specific. Reference to the U N H C R Guidelines by the BIA in elucidating the Acosta formulation is p e r m is sib le because the U.S. Supreme Court has held that Congress intended to conform United States refugee law with the 1967 United Nations Protocol R elatin g to the Status of Refugees. See INS v. Cardoza-Fonseca, 480 U.S.

4 2 1 , 436-37, 107 S. Ct. 1207, 1215-16 (1987); see also Castellano-Chacon, 3 4 1 F.3d at 546-48 (noting that "[t]he UNHCR takes the Second Circuit's a p p r o a c h , in that the external perception of the group can be considered as an additional factor" and that "[a]s the BIA continues to revise and evaluate its own definition of a particular social group, our definition may evolve in th e same way as the BIA's, with the caveat that the BIA must continue to m a k e a reasonable interpretation").

W e also apply Chevron deference to the BIA's further articulation of th e Acosta formulation with regard to the eligibility of noncriminal in fo rm an ts who work against the Cali cartel. See Aguirre-Aguirre, 526 U.S. at 425, 119 S. Ct. at 1445; Cardoza-Fonseca, 480 U.S. at 448, 107 S. Ct. at 1 2 2 1 ("In [the] process of filling any gap left, implicitly or explicitly, by C o n g r e ss , the courts must respect the interpretation of the agency to which C o n g r e ss has delegated the responsibility for administering the statutory p ro g ram ." (quotations omitted) (emphasis added)). In so doing, we conclude th at the BIA's legal determination that noncriminal informants do not fall w ith in the Acosta formulation is also reasonable.

H e re , the BIA noted that Castillo-Arias's activity as an informant is an h is to r ic fact which is immutable, but is not necessarily an experience shared b y others that is sufficient to define a social group for asylum purposes. R1 at 57. Narcotics traffickers, such as the cartel, threaten "anyone and ev eryo n e perceived to have interfered with, or who might present a threat to, th eir criminal enterprises." Id. at 59. For this reason, informants against the cartel often intend to remain undiscovered. Id. at 58. Generally, those in fo rm an ts who remain anonymous are not visible enough to be considered a "p a r tic u la r social group," as the very nature of the activity prevents them fro m being recognized by society at large.

Thus, the social visibility of informants is different in kind from the p articu lar social groups that have been afforded protection under the INA.

See, e.g., Matter of V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997) (Filipinos o f mixed Filipino-Chinese ancestry); Matter of Kasinga, 21 I. & N. Dec.

3 5 7 , 365-66 (BIA 1996) (young women of a particular tribe who were o p p o sed to female genital mutilation); Matter of Toboso-Alfonso, 20 I. & N.

D ec. 819, 822-23 (BIA 1990) (persons listed by the government as having th e status of homosexual); Matter of Fuentes, 19 I. & N. Dec. at 662 (former m em b ers of the national police); Matter of Acosta, 19 I. & N. Dec. at 234 ( fo r m e r military leadership and land ownership). Insofar as informants share s o m e characteristics with former members of the national police, they are n o n e th e le ss distinguishable. First, the BIA emphasized that it did not afford p ro tectio n to "persons exposed to risks normally associated with em p lo ym en t in occupations such as the police or military." R1 at 57.

Second, even if former members of the national police were targeted based o n their status as former police officers, the decision to afford protection u n d e r the INA is situationally dependent. See R1 at 57 ("[A] former police o fficer could conceivably demonstrate persecution based on membership in a particular social group.") (emphasis added).

In Matter of Fuentes, the BIA noted that mistreatment occurring b ecau se of the status of being a former member of the national police "in ap p ro p riate circumstances" could be found to be persecution on account of m em b ersh ip in a particular social group. 19 I & N Dec. at 662 (emphasis ad d ed ). The only example provided in Fuentes as an appropriate c ir cu m s ta n c e was when the former police officers would be targeted based o n their status after "hostilities have ceased." See id. In this case, there is n o evidence that the Cali cartel has ceased its hostilities. Furthermore, there is nothing in the record that would compel us to conclude that noncriminal in fo rm an ts working against the Cali cartel warrant an exception to the g en eral rule that those who engage in risks similar to those of the police or m ilita ry , regardless of motive, do not receive protection as a particular social g ro u p under the INA.

T o the extent that there are noncriminal informants that do not keep th eir activities secret, the BIA reasonably concluded that they still do not co n stitu te a "particular social group" under the INA because there is no e v id e n c e that the cartel would treat them any differently from any other p erso n the cartel perceived to have interfered with its activities. The risk of p ersecu tio n alone does not create a particular social group within the m ean in g of the INA, as virtually the entire population of Colombia is a p o te n tia l subject of persecution by the cartel. See R1 at 59. While they may b e recognizable after their activities have been disclosed to the cartel or to s o c ie ty , their defining attribute is their persecution by the cartel. As stated p rev io u sly, "particular social group" should not be a "catch all" for all p erso n s alleging persecution who do not fit elsewhere. In restricting the g ro u n d s for asylum and withholding of deportation based on persecution to fiv e enumerated grounds, Congress could not have intended that all in d iv id u als seeking this relief would qualify in some form by defining their o w n "particular social group." See 8U.S.C. § 1101(a)(42)(A); id. § 1 2 5 3 (h )(1 ) (1994) (now codified at 8U.S.C. § 1231(b)(3)(A)). Accordingly, th e BIA's conclusion that noncriminal informants were not visible enough to b e considered a social group was reasonable.

We now turn to the BIA's additional concerns regarding the n u m e ro s ity and inchoateness of noncriminal informants. We believe that th ese concerns are valid. See Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th C ir. 2005) (holding that Colombian business owners who rejected demands f ro m narcotics traffickers are "too broad to qualify as a particularized social g ro u p " because "[t]here is no unifying relationship or characteristic to narrow th is diverse and disconnected group"). Moreover, despite the Castillos's assertio n s, there is nothing contradictory in concluding that a group of in fo rm an ts are, for purposes of the INA, both not visible enough, and, at the sam e time, potentially too numerous or inchoate. The fact that a ch aracteristic or association is shared by a large number of people does not m ean that either society at large, let alone other members within that same g ro u p , will recognize that characteristic or association. This is especially so w h en the characteristic or association is inherently secretive. Because we co n clu d e that the BIA's interpretation of the INA is reasonable with regard to n o n cr im in al informants, we need not determine whether Castillo-Arias's fam ily has suffered derivative persecution on that basis. A s we are required to do, we have given the requisite deference to the B IA 's interpretation of the INA. However, we are dismayed that these p etitio n ers, who risked their lives and the safety of their families to assist our n atio n 's allies in the "war on drugs," have been ignored by our nation. We reg ret that Congress has not deemed it appropriate to craft some legislative relief for these individuals and those similarly situated. Perhaps the co m p ellin g facts in this case and its troublesome resolution might be the im p e tu s for such relief.

III. CONCLUSION H av in g previously concluded that the Castillos's eligibility for asylum an d withholding of deportation turned upon whether noncriminal informants w o rk in g against the Cali cartel constitute a "particular social group" within th e meaning of the INA, we remanded this action to the BIA. On remand fro m our court, the BIA concluded that noncriminal informants do not co n stitu te a "particular social group" under the INA. Back on appeal, we co n clu d e that the BIA's interpretation of the INA was reasonable.

Notwithstanding their very sympathetic personal circumstances, the Castillos are ineligible for asylum or withholding of deportation. PETITION D E N IE D .

1 Our recitation of the facts is drawn from Castillo-Arias's testimony before the Immigration Judge. The court found Castillo-Arias to be a credible witness. On appeal, the Government does not challenge Castillo-Arias's credibility or his account of the facts. Therefore, the facts are undisputed.

---