author: CALLAHAN, Circuit Judge,

text:
    Michael GALLEGOS, Petitioner-Appellant, v. Charles L. RYAN, Respondent-Appellee.
    No. 08-99029
    United States Court of Appeals, Ninth Circuit.
    Filed November 30, 2016
    Dale A. Baich, Emma Lauren Smith, Esquires Assistant Federal Public Defenders, Ashwin Cattamanchi, FPDAZ-Federal Public Defenders Office (Phoenix), Phoenix, AZ, for Petitioner-Appellant.
    Jon Anderson, Esquire, Assistant Attorney General, Arizona Attorney General’s Office, Phoenix, AZ, for. Respondent-Ap-pellee.
    Before: MARSHA S. BERZON, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.
   ORDER

Appellant Gallegos’s Petition for Panel Rehearing is granted.

The first paragraph of the panel’s April 7, 2016 order is amended to read as follows:

The panel GRANTS IN PART Appellant Gallegos’s Motion for Stay and Partial Remand for Reconsideration in Light of Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). On remand, the District Court shall consider Gallegos’s timely Martinez claim and, accordingly, determine whether he can show cause and prejudice to excuse the procedural default with respect to' his claim that counsel failed to investigate and present mitigating evidence of Gallegos’s alleged organic brain damage. See Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir. 2014) (en banc). Gallegos’s request for a stay of appellate proceedings is denied as moot.

The second paragraph of-the April 7, 2016 order remains in effect.

The panel’s April 7, 2016 opinion affirming the denial of Appellant’s other habeas claim remains in force.

The Clerk shall issue the mandate seven days after the date of this order.-

No further petitions for rehearing or rehearing en banc shall be entertained.

CALLAHAN, Circuit Judge,

dissenting:

I respectfully dissent from the grant of a partial remand for reconsideration in light of Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). We held in Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir. 2014) (en banc), that Martinez may provide a path for a state defendant such as Gallegos “to demonstrate cause, if he can show the first two Martinez elements: (1) the claim is substantial and (2) that his PCR counsel was ineffective under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].” I do not think that Gallegos has made the minimal showing required for a remand.

An Arizona jury found that in 1990 Gallegos “had anally raped and killed eight-year-old Kendall Wishon, a girl his brother had raised as a daughter.” Gallegos v. Ryan, 820 F.3d 1013, 1016 (9th Cir. 2016). The trial judge sentenced Gallegos to death. Id. The Arizona Supreme Court initially affirmed the. conviction but remanded for resentencing. State v. Gallegos, 178 Ariz. 1, 870 P.2d 1097 (1994). At resentencing, the trial judge again imposed the death penalty and on appeal the Arizona Supreme Court affirmed the sentence. State v. Gallegos, 185 Ariz. 340, 916 P.2d 1056 (1996) (en banc), cert. denied, 519 U.S. 996, 117. S.Ct. 489, 136 L.Ed.2d 382 (1996). At the resentencing, Gallegos’ counsel presented evidence concerning Gallegos’ learning disabilities, that he was a follower, used drugs extensively, was an alcoholic, and was intoxicated at the time of the crime. . .

Gallegos filed a petition for post-conviction relief in state court in 1999, Athough the petition mentioned that counsel had failed to adequately investigate Gallegos’ mental health, the issue was not argued. In 2000, the state court, after holding an evi-dentiary hearing, determined that Gallegos’ claims regarding ineffective assistance of counsel lacked merit and denied Gallegos’ petition. ■

Gallegos filed his federal habeas petition in the United States District Court for the District of Arizona in 2001. In its 2008 order denying the petition, the District Court carefully reviewed the presentation of evidence in Gallegos’ resentencing and iii his state post-conviction proceeding, and concluded that “[i]t is difficult to envision how counsel could have presented a more complete picture of Petitioner’s impairment and history of substance abuse, as well as his passive personality and the dynamics of his relationship with Small-wood.”

The District Court did certify the question of ineffective assistance of counsel at sentencing for appeal, and in our April 2016 opinion we basically affirmed the District Court’s decision. Gallegos, 820 F.3d 1013.

However, in 2011, while this appeal was pending, Gallegos’ counsel procured a new diagnosis of Gallegos’ mental health from a clinical neuro-psychologist. In part on the basis of Gallegos self-reporting of “what appear to be at least three significant head traumas when he was a youth,” the neu-ro-psychologist opined that “[ojverall, considering the history, interview information, and neuropsychological profile elucidated above, it is my opinion that there is objective evidence of cognitive dysfunction reflecting brain-based disturbances in functioning” He further opined “that Mr. Gallegos’ brain damage was present at the time he committed the crimes.”

On the existing record, Gallegos has not made the minimal showing of ineffective assistance of counsel in regard to investigating his mental health. The record indicates that over the course of the first decade after the crime, Gallegos’ attorneys queried Gallegos, his friends, and family about his mental health. Considerable information was developed concerning his learning disabilities, his drug use, his alcoholism, and being a follower, but nobody suggested that he had “organic brain damage.” It is possible that, as Dr. Heilbron-ner opines, Gallegos has “organic brain damage.” But' this does not even suggest ineffective assistance of counsel at resen-tencing or on post-conviction review because the diagnosis is offered fpr the first time some 30 years after the crime and is based on Gallegos’ self reporting,- also some 30 years after the crime, of possible “significant head traumas” that occurred before the crime. Dr. Heilbronner’s report states that Gallegos did not go to a hospital for the most serious of his head traumas, and the implication is that he did not seek medical attention for either of the other traumas. Counsel can hardly be faulted when Gallegos, his friends, and his family all failed to relate the occurrence of head traumas (not medically reported) when asked about Gallegos’ mental health including his learning disabilities, use of drugs, and alcoholism.

This is not to suggest that the State’s other arguments for rejecting Gallegos’ “new claim” lack merit. Rather, I would hold that even assuming that Gallegos hurdled all the other obstacles to asserting an ineffective assistance of counsel claim some 30 years after the crime, he nonetheless has failed to make the minimal showing of ineffective assistance of counsel required for a remand and an evidentiary hearing in the district court. Accordingly, I dissent from the grant of a partial remand for reconsideration in light of Martinez, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272.

      . In Martinez, 132 S.Ct. at 1318-19, the Su- . preme Court indicated that a defendant need only meet the standard for a .certificate of appealability.

      . The alleged incidents are (1) when he had been drinking he tried to . jump over a flower bed, but fell backwards, hit his head on a concrete block, and' has no memory of what happened the rest of the night; (2) on an occasion when he was riding a 3-wheeler which crashed, “he recalls waking up on the living room floor the next day and the back of his shirt was bloody"; and (3) another time when he was on a 3-wheeler he hit the back of at tree and "was out for awhile.”

      . In opposing Gallegos’ petition for rehearing, the State raises a number of non-frivolous arguments including whether Gallegos' claim is new, whether it is timely, and whether, even if the claim is new, it is substantial.


source: Caselaw Access Project

author: CALLAHAN, Circuit Judge:

license: Public Domain

text:
    Wilfredo Garay REYES, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 14-70686
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 6, 2016, Seattle, Washington
    Filed November 30, 2016

      Anne Dutton (argued) and Zachary A. Albun, Student Attorneys; Benjamin Richard Casper, Supervising Attorney; University of Minnesota Law School, Center for New Americans, Federal Immigration Litigation Clinic, Minneapolis, Minnesota; Alma David, Global Justice Law Group, PLLC, Seattle, Washington; for Petitioner.
    W. Manning Evans (argued) and Susan B. Green, Senior Litigation Counsel; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
    L. Rachel Lerman, Barnes & Thornburg LLP, Los Angeles, California; Chris Bayh, Barnes & Thornburg LLP, Indianapolis, Indiana; for Amicus Curiae Harvard Immigration and' Refugee Clinical Program.

      Fatma E. Marouf, -Associate Professor of Law, Las Vegas, Nevada, as and for Amicus- Curiae Immigration Clinic, University of Nevada, -Las Vegas, William S. Boyd School of Law.
    Brook Dooley and Sophie Hood, Keker & Van Nest LLP, San Francisco, California, for Amici Curiae Lawyers’'Committee for Civil Rights of the San Francisco Bay Area, Center for Gender & Refugee Studies, and "American Immigration Lawyers Association.
    Before: MICHAEL DALY HAWKINS, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.
   OPINION

CALLAHAN, Circuit Judge:

Wilfredo Garay Reyes, a native and citizen of El Salvador, petitions for review of a precedential Board of Immigration Appeals (“BIA”) opinion in Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014), wherein the BIA dismissed Garay’s appeal from an Immigration Judge’s (“IJ”) denial of Garay’s applications for withholding of removal and relief from removal under Article 3 of the Convention Against Torture (“CAT relief’). Garay claims he is entitled to withholding of removal because, if removed to El Salvador, he will more likely than not face persecution on account of his membership in a particular social group consisting of “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” and, alternatively, a group consisting of deportees from the United States to El Salvador. Garay also maintains that he is entitled to CAT relief because he faces a clear probability of torture from the Mara 18 gang, Salvadoran death squads, and Salvadoran government actors.

We have jurisdiction under 8 U.S.C. § 1252. We deny Garay’s petition in connection with his claims for withholding of removal. We conclude that the BIA’s articulation of its “particularity” and “social distinction” requirements for demonstrating membership in .a “particular social group” are entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We also conclude that the BIA reasonably determined that Garay’s proposed particular social groups of “former members of Mara 18” and “deportees from the United States to El Salvador” are not cognizable. However, because the IJ committed legal error and the BIA employed an impermissible standard of review in assessing Garay’s request for CAT relief, we grant Garay’s petition with respect to the denial of his CAT claim.

I

A

In 2000, at the age of seventeen, Garay joined the Mara 18 gang in El Salvador. Upon joining Mara. 18, Garay participated in three to five robberies of wealthy ranchers. Four months after Garay joined the gang, a new and more violent leader, named Francisco, took over, and the gang committed a string of armed bank robberies under his leadership. Garay, armed with a gun, served as a driver for two or three heists.

Disenchanted with Francisco’s leadership style and not wishing to be further involved in bank robberies, Garay decided to leave the gang after being a member for less than a year. Garay went into hiding, moving to another town. Garay feared retribution or reprisals from Francisco, who had previously announced that anyone trying to leave could be punished with beatings or death.

After Garay fled, Francisco found Garay and shot him in the leg. Some months later, Garay was confronted in a billiard hall by machete-wielding assailants. He defended himself with his own machete and a handgun. In late 2000, Garay had his gang tattoo removed. Shortly thereafter, Garay left El Salvador and made his way to the United States.

Garay entered the United States without inspection in May 2001, at age eighteen. Now thirty-three years old, Garay has a wife and two daughters. There is no indication that Garay has been involved with gangs since entering the United States.

B

On March 25, 2009, Immigration and Customs Enforcement (“ICE”) issued a Notice to Appear, alleging that Garay was unlawfully present and should be removed. Garay conceded removability as charged. Garay, represented by counsel, testified before the IJ on January 14, 2010.

Following the hearing, the IJ issued an oral decision, in which he found Garay credible. The IJ pretermitted Garay’s application for asylum because it had not been 'filed within a year of his entry into the United States.

Addressing Garay’s withholding claim, the IJ concluded that, although Garay had been subjected to persecution in El Salvador, he had not established that he was persecuted on account of his membership in a particular social group consisting of “former members of Mara 18 in El Salvador who have renounced their gang membership.” The IJ noted Garay’s four-to-six month active membership in Mara 18 and reasoned that “[although the respondent has clearly indicated that he wishes to renounce his gang membership, he cannot disassociate himself from the volitional activities with which he was involved as a member of the Mara 18 gang.” The IJ also noted that Garay had submitted background, materials “which indicate that El Salvadoran gangs may have multiple motivations and modus operandi in their particular groups.”

Denying Garay’s withholding claim, the IJ cited Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), and Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008), as authority for the proposition that membership in a violent criminal gang cannot serve as the basis for a particular social group. The IJ did not address whether Garay had demonstrated a nexus to his purported membership in a social group. The IJ also did not address Garay’s alternative proposed social group of “deportees from the United States to El Salvador.”

Addressing Garay’s claim for CAT relief, the IJ noted that Garay had testified that he feared arrest by the police and that he could be subject to reprisals from his former fellow gang members if removed to El Salvador. The IJ concluded that Garay had not shown a likelihood that he would be arrested because Garay had failed to demonstrate that the police have been searching for him or that he had been charged with any crimes in El Salvador. Regarding reprisals from the gang, the IJ stated that Garay had “suggested in his written application for relief that if he is located by his former gang that he could be subject to various brutal forms of treatment, including having a tire placed on him being filled with gasoline.” However, the IJ observed that Garay had not mentioned his fear of that specific threat during his hearing, but had “indicated that he believes that he would be killed by his former gang members.” The IJ then stated that the materials Garay had submitted “contain little if any information concerning the treatment of former gang members such as [himself] upon their return to El Salvador beydnd being killed.” The IJ concluded that Garay had “failed to demonstrate by any standard that he would be subjected to torture.”

The IJ ordered Garay removed to El Salvador. Garay timely appealed to the BIA.

C

On February 7, 2014, the BIA panel dismissed Garay’s appeal in a prece-dential decision, Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). In Matter ofW-G-R-, and in a companion precedential decision issued the same day, Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014), the BIA clarified the requirements that an applicant for asylum or withholding of removal must satisfy in order to demonstrate membership in a particular social group. The applicant must “establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” M-E-V-G-, 26 I. & N. Dec. at 237; see also W-G-R-, 26 I. & N. Dec. at 212.

In Matter of W-G-R-, the BIA reviewed its historical efforts to construe the statutory term “particular social group” as it applies in asylum and withholding cases. 26 I. & N. Dec. at 209-10. The BIA explained that its articulation of the “particularity” and “social visibility” requirements was not a departure from or abrogation of its construction of a “particular social group” in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). Id. at 211-12 (citing Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc)). Instead, the BIA explained, the requirements “clarified the definition of the term [‘particular social group’] to give it more ‘concrete meaning through a process of case-by-case adjudication.’ ” Id. at 212 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)). In Matter of W-G-R-, the BIA adhered to its previous holdings that “both particularity and social visibility are critical elements, in determining” the cognizability of a particular social group, but re-named the “social visibility” criterion as “social distinction.” Id.

The BIA observed that the term “particularity” is included in thé plain language of the statute. Id. at 213. The BIA explained that “[t]he particularity requirement also derives from the concept of immutability ... clarifying the point, at least implicit in earlier case law, that not every immutable characteristic is sufficiently precise to define a particular social group.” Id. The BIA explained that “the focus of the particularity requirement is whether the group is discrete or is, instead, amorphous.” Id. at 214.

The BIA clarified that the term “social distinction” was intended to replace the term “social visibility.” “Social distinction” more accurately describes the function of the requirement and reflects that it is not intended to require “literal,” “ocular,” or “on-sight” visibility. Id. at 211, 216. Beyond that, the BIA clarified:

To have the “social distinction” necessary to establish a particular social group, there must be evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group. Although the society in question need not be able to easily identify who is a member of the group, it must be commonly recognized that the shared characteristic is one' that defines the group.

Id. at 217 (emphasis added).

The BIA ¿xplained that its decision not to focus the “social distinction” inquiry solely on the persecutor’s perspective was based, in part, on the fact that the inquiry into whether a group is a “particular social group” is distinct from the inquiry into the “nexus” requirement, which considers whether a person is persecuted “on account of’ membership in a particular social group. Id. at 218.

Turning to Garay’s withholding claim, the BIA agreed with the IJ that Garay’s proposed group of “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” was not cognizable. Id. at 221. The BIA reasoned that “[t]he group as defined lacks particularity because it is too diffuse, as well as being too broad and subjective.” Id. The, BIA commented that, “[a]s described, the group could include persons of any age, sex, or background. It is not limited to those who have had a meaningful involvement with the gang and would thus consider themselves—and be considered by others—as ‘former gang members.’ ” Id.

Addressing the “social distinction” requirement, the BIA stated that “[t]he record contains scant evidence that Salvadoran society considers former gang members who have renounced their gang membership as a distinct social group.” Id. at 222. The BIA concluded that Garay had not provided evidence demonstrating that his proposed particular social group is “perceived, considered, or recognized in Salvadoran society as a distinct group.” Id.

Having determined that Garay had not demonstrated membership in a cognizable group, the BIA did not need to address the “nexus” requirement. However, it held in the alternative that Garay had “not demonstrated the required nexus between the harm he fears and his status as a former gang member.” Id. at 223. The BIA noted that while persecution can be a factor in determining whether a group is recognized as a distinct group within the relevant society, “the persecutor’s views play a greater role in determining whether persecution is inflicted on account of the victim’s membership in a particular social group.” Id. The BIA then determined that Garay had “not shown that any acts of retribution or punishment by gang members would be motivated by his status as a former gang member, rather than by the gang members’ desire to enforce their code of conduct.” Id. at 224, .

The BIA also rejected Garay’s proposed social group of deportees from the United States to El Salvador. The BIA found that the proposed group is “too broad and diverse a group to satisfy the particularity requirement for a particular social group under the Act.” Id. at 223 (citing Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (per curiam))) The BIA explained:

The respondent’s purported social group could include men, women, and children of all ages. Their removal from the United States could be based on numerous different factors. The length of time they were in the. United States, the re-.cency of their removal, and societal views on how long a person is considered a deportee after repatriation could vary immensely. . -

Id.

Finally, the BIA reviewed the IJ’s denial of CAT relief for clear error, and affirmed. Id. at 224-26. It reviewed-evidence in support of Garay’s claims that he feared torture at the hands of rival gangs, the police, or clandestine death squads, id. at 224-26, but concluded that “the Immigration Judge’s predictive findings with respect to the respondent’s torture claim [we]re not clearly erroneous-_” Id. at 226.

In a footnote to its CAT analysis, the BIA addressed Garay’s challenge to the IJ’s statement that the background materials Garay had submitted contained little information about the treatment former gang members face “beyond being killed.” Id. at 226 n.9. The BIA disagreed with Garay’s characterization of the IJ’s decision “as holding that [Garay] faces a danger of being killed but that death is not torture.” Id. The BIA read the IJ’s statement not as an assertion that killings are not torture but, rather, as “h[o]ld[ing] that the evidence was not sufficient to show a clear probability that the respondent would be tortured.” Id.

Garay timely petitioned for review of the final order of removal entered by the BIA.

H

The primary issue in this case is-whether we should accord deference to the BIA’s “particularity” and “social distinction” requirements for establishing the existence of a “particular, social group,” as articulated in the precedential opinion in Garay’s case, Matter of W-G-R-, 26 I. & N. Dec. 208.

The BIA’s construction of ambiguous statutory terms in precedential decisions is entitled to deference under Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Henriquez-Rivas, 707 F.3d at 1087. We must accept the BIA’s construction if it is reasonable, “even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Nat'l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 126 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (“Brand X”). Consistency with the agency’s past practice or precedent is not required for an agency interpretation to be due Chevron deference; a new or varying agency interpretation is permitted, if it is adequately explained. Id. at 981, 126 S.Ct. 2688.

Garay contends that the BIA’s “particularity” and “social distinction” requirements are unreasonable, unreasoned, and impermissibly prevent individuals from seeking asylum. We disagree and conclude that BIA’s present articulation of the “particularity” and “social distinction” requirements is consistent with the statute, reflects the agency’s ongoing efforts to construe the ambiguous statutory phrase “particular social group,” is reasonable, and is entitled to Chevron deference.

A

The phrase “membership in a particular social group” is not defined in the statute and has spawned extensive debate and litigation. Matter of W-G-R- and Matter of M-E-V-G-are the latest in a long line of BIA decisions refining the contours of this ambiguous statutory provision.

The BIA first interpreted “persecution on account of membership in a particular social group” in Matter of Acosta, applying the doctrine of ejusdem generis to conclude that the phrase means “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.” 19 I. & N. Dec. at 233, overruled on other grounds in Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).

In the ensuing years, Acosta’s immutable characteristic test “led to confusion and a lack of consistency as adjudicators struggled with various possible social groups, some of which appeared to be created exclusively for asylum purposes.” Matter of M-E-V-G- 26 I. & N. Dec. at 231. In response to calls for greater clarity, and in order to address the evolving nature of the claims presented by asylum applicants, “the BIA refined the Acosta standard by stating that an asylum applicant must also demonstrate that his proposed particular social group has ‘social visibility’ and ‘particularity.’ ” Henriquez-Rivas, 707 F.3d at 1084 (quoting Matter of C-A-, 23 I. & N. Dec. 951, 957, 960 (BIA 2006)); Matter of M-E-V-G-, 26 I. & N. Dec. at 232. The “social visibility” requirement considered whether the proposed particular social group was “easily recognizable and understood by others to constitute [a] social group[ ].” Matter of C-A-, 23 I. & N. Dec. at 959-61.

In subsequent cases, the BIA further elaborated on the meaning of the “particularity” and “social visibility” requirements. In Matter of S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008), the BIA stated “[t]he essence of the ‘particularity requirement, therefore, is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.” In Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008), the BIA explained “[t]he purported group’s social visibility—i.e., the extent to which members of a society perceive those with the characteristic in question as members of a social group—is of particular importance in determining whether an alien is a member of a claimed particular social group.”

The BIA’s attempts to clarify its “social visibility” requirement received mixed reviews from the circuit courts. In Henri-quez-Rivas, 707 F.3d at 1085, we noted that most circuits had accepted the BIA’s “social visibility” and “particularity” criteria, but that the Third and Seventh Circuits had rejected the criteria as an unreasonable interpretation of the ambiguous statutory term.

In Henriquez-Rivas, we “clarified] the ‘social visibility and ‘particularity’ criteria without reaching the ultimate question of whether the criteria themselves are valid,” i.e., whether they were due Chevron deference. Id. at 1091. We did, however, comment that “[s]o long as the ‘social visibility and ‘particularity’ criteria are applied in a way that did not directly conflict with prior agency precedent, we would be hard-pressed to reject the new criteria as unreasonable under Chevron.” Id. at 1089.

B

We now hold that the BIA’s interpretation in W-G-R-and M-E-V-G- of the ambiguous phrase “particular social group,” including the BIA’s articulation of the “particularity” and “social distinction” requirements is reasonable and entitled to Chevron deference. We consider the requirements in turn.

1

We recognized in Henñquez-Rivas that the “particularity” requirement is distinct from the “social visibility” requirement. “The ‘particularity requirement is separate, and it is relevant in considering whether a group’s boundaries are so amorphous that, in practice, the persecutor does not consider it a group.” 707 F.3d at 1091.

The- BIA’s current articulation of its “particularity” requirement is reasonable and is consistent with its own precedent, which has long required that a particular social group have clear boundaries and that its characteristics have commonly accepted definitions. See, e.g., Matter of S-E-G-, 24 I. & N. Dec. at 585 (rejecting as too amorphous a proposed group of “male children who lack stable families and meaningful adult protection, who are from middle and low income classes, who live in the territories controlled by the MS-13 gang, and who refuse recruitment”); Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007) (explaining that “affluent Guatemalans” did not qualify as a particular social group in part because the “characteristic of wealth or affluence-is simply too subjective, inchoate, and variable to provide the sole basis for membership”); Matter of C-A-, 23 I. & N. Dec. at 953, 959, 961 (rejecting a proposed group of “noncriminal drug informants working against the Cali drug cartel” due, in part, to the fact that the distinction between government informants who had been compensated for their services and those who acted out of civic motives was not sufficient to carve out a particular “subgroup” of. uncompensated informants); Matter of V-T-S-, 211. & N. Dec. 792, 798 (BIA 1997) (holding “Filipino[s] of mixed Filipino-Chinese ancestry” cognizable as a particular social group in part because a country conditions report stated that 1(5% of the Philippine population had an “identifiable” Chinese background). The BIA’s statement of the purpose and function of the “particularity” requirement does not, on its face, impose a numerical limit on a proposed social group or disqualify groups that éxceed specific breadth or size limitations. Nor is it contrary'to the principle that diversity within a proposed particular social group may not serve as the sine qua non of the particularity analysis. Cordoba v. Holder, 726 F.3d 1106, 1116 (9th Cir. 2013); Henriquez-Rivas, 707 F.3d at 1093-94. Rather,, the BIA imposes the “particularity” requirement in order to distinguish between social groups' that are discrete and those that are amorphous. Matter of W-G-R-, 26 I. & N. Dec. at 214. Recognizing that, in order to be “particular,” a group must have some definable boundary is not unreasonable.

, We thus find the definition of the “particularity” requirement articulated in W G-R- and M-E-V-G- to be both reasonable and consistent with the BIA’s own precedent. Brand X, 545 U.S. at 980-81, 125 S.Ct. 2688.

2

The BIA’s articulation of its “social distinction” requirement is also reasonable. The “social distinction” requirement is not, as Garay contends, a “new” requirement. Rather, the “social distinction” requirement is reasonably read to be precisely what the BIA characterizes it to be: a renaming of the “social visibility” requirement. Matter of W-G-R-, 26 I. & N. Dec. at 212.

In Henriquez-Rivas, we did not reject the erstwhile “social visibility” requirement as an “unreasoned concept,” as alleged by Garay. Rather, we examined the concept and concluded that the “social visibility” inquiry cannot require “on-sight” visibility. We held that the proper inquiry is whether a proposed particular social group’s shared characteristic or characteristics would “generally be recognizable by other members of the community,” or whether there was “evidence that members of the proposed group would be perceived as a group by society.” 707 F.3d at Í088-89 (internal quotation marks omitted). The BIA’s explanation of its “social distinction” requirement is consistent with our articulation of the appropriate inquiry.

Additionally, although we commented in Henriquez-Rivas on the potential import of the persecutor’s perspective in assessing “social visibility,” id. at 1089 (“Looking to the text of, the statute, in the context of persecution, we believe that the perception of the persecutors may matter the most.”), the agency is not bound by our belief, as we did not hold that it was the only reasonable construction of an unambiguous statutory term. Brand X, 545 U.S. at 981, 125 S.Ct. 2688; Pirir-Boc, 750 F.3d at 1083 n.6 (noting that Henriquez-Rivas left the issue for the BIA to decide). Moreover, the BIA’s articulation of the “social distinction” requirement does not preclude consideration of the persecutor’s perspective. Rather, as we acknowledged in Pirir-Boc, the BIA has noted at least two ways in which the “perception of the applicant’s persecutors may be relevant.” 750 F.3d at 1083 n.6. We noted that, “while the BIA did not give the persecutor’s perspective the same role in the analysis as the one [this Court] had recommended [in Henri-quez-Rivas], it did give that perspective an important place.” Id. Accordingly, the BIA’s “social distinction” requirement does not unreasonably discount the perceptions of persecutors.

Finally, the “social distinction” requirement is not redundant in light of the “nexus” requirement for asylum and withholding claims. Rather than conflate the “social distinction” and “nexus” requirements, the BIA’s reasoning reflects an appreciation of the need to distinguish between the showing an applicant must make in order to demonstrate membership in a “particular social group” and the showing that is necessary to demonstrate that he was persecuted, or fears persecution, “on account of” that membership. This is consistent with the Supreme Court’s conception of the “nexus” requirement. See INS v. Elias- Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (explaining that “the statute makes motive critical” and an asylum applicant must provide direct or circumstantial evidence' of his persecutors’ motives in order to satisfy the “nexus” requirement).

Accordingly, we reject Garay’s challenges to the BIA’s construction of the phrase “particular social group” because we find that the BIA’s articulation of the “particularity” and “social distinction” requirements in Matter of W-G-R- is reasonable and entitled to Chevron deference. Brand X, 545 U.S. at 981, 125 S.Ct. 2688.

Ill

Having determined that the BIA’s definition of particular social group is entitled to Chevron deference, we next consider Garay’s contention that the BIA erred in finding that his proposed social group of “former members of the Mara 18 gang in El Salvador who have renounced their membership” did not fit within that definition.

“The Attorney General, while retaining ultimate authority, has vested the BIA with power to exercise the ‘discretion and authority conferred upon the Attorney General by law’ in the course of ‘considering and determining cases before it.’ ” Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (quoting 8 C. F. R. § 3.1(d)(1)). As a general rule, we review the BIA’s denial of withholding of removal for. substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (citing Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011)). Under the substantial evidence standard, we may reverse the BIA only on a finding “ ‘that the evidence not only supports [a contrary] conclusion, but compels it—and also compels the further conclusion’ that the petitioner meets the requisite standard for obtaining relief.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812.).

In Aguirre-Aguirre, the Supreme Court stated that “the BIA should- be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case adjudication.’” 526 U.S. at 425, 119 S.Ct. 1439 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). In Henriquez-Rivas, we held that we review the BIA’s findings for substantial evidence, but that “[t]he BIA’s construction of ambiguous statutory terms ... is entitled to deference under Chevron.” 707 F.3d at 1087. In this case, whether we apply a “Chevron deference” or “substantial evidence” standard of review—assuming they might in some instances be different—makes no difference, because the BIA’s application of the “particularity” and “social distinction” criteria to Garay’s withholding claims was reasonable.

The BIA’s application of the “particularity” requirement to Garay is reasonable in light of the absence of record evidence demonstrating that Salvadoran society recognizes the boundaries of a group comprised of former Mara 18 members who have renounced their membership, regardless of the length and recency of that membership. Matter of W-G-R-, 26 I. & N. Dec. at 221 (“The boundaries of a group are not sufficiently definable unless the members of society generally agree on who is included in the group, and evidence that the social group proposed by the respondent is recognized within the society is lacking in this case.”).

Similarly, we agree that substantial evidence supports the BIA’s conclusion that Garay’s proposed group lacks social distinction. Id. at 222-23. The record evidence does, as Garay points out, include some evidence of rehabilitation programs run for the benefit of former gang members and of threats former gang members face from members of their own and other gangs. The record evidence does not, however, compel the conclusion that Salvadoran society considers former gang members as a distinct social group, e.g., distinct from current gang members who may also avail themselves of- government programs or from suspected gang members who face discriminatory treatment and other challenges in Salvadoran society. See Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013) (“We review for substantial evidence the factual findings underlying the BIA’s determination that a petitioner is not eligible for withholding of removal_”).

Accordingly, we reject Garay’s challenges to the BIA’s determination that his proposed social group of “former members of the Mara 18 gang in El Salvador who have renounced their membership” is not cognizable.

IY

Garay also purports to challenge the BIA’s denial of his withholding claim based on his membership in a particular social group consisting of “deportees from the United' States to El Salvador.” This assertion appears to have been an afterthought as his brief only asserts that the BIA’s decision turned exclusively on particularity. The BIA’s decision is entitled to deference, see supra page 1137, and we conclude that the BIA’s denial of withholding based on a particular social group of “deportees from the United States to El Salvador” is reasonable.

As we have explained in Section II B 1, the BIA imposes the particularity requirement in order to distinguish between social groups that are discrete and those that are amorphous. See supra page 1135. In W-GR-, the BIA explained that particularity “chiefly addresses the question of delineation, or as earlier court decisions described it, the need to put ‘outer limits’ on the definition of ‘particular social group.’ ” Matter of W-G-R-, 26 I. & N. Dec. at 214.

Although we have recognized that “social visibility” and “particularity” tend to blend together, we have not merged the two prongs. Henriquez-Rivas, 707 F.3d at 1090-91. As noted, we held that “[t]he ‘particularity’ requirement is separate, and it is relevant in considering whether a group’s boundaries are so amorphous that, in practice, the persecutor does not consider it a group.” Id. at 1091. We stated that “the ‘particularity’ consideration is merely one factor as to whether a collection of individuals is considered to be a particular social group in practice.” Id.

The BIA’s application of the “particularity” requirement to Garay’s purported class of “deportees from the-United States to El Salvador” was -reasonable; The BIA found that a proposed class of deportees was too amorphous, overbroad and diffuse because it included men, women, and children of all ages, regardless of the length of time they were in the United States, the reasons for their removal, or the recency of their removal. Matter of W-G-R-, 26 I. & N. Dec. at 223. Garay presented scarcely any contrary evidence. Viewing all the evidence, the BIA’s rejection of Garay’s proposed class was reasonable, if not compelled.

Indeed, the BIA’s determination is supported by case law declining to recognize much more circumscribed purported groups of deportees. Most recently, in Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016), we affirmed the BIA’s determination that a purported class of “imputed wealthy Americans” deported to Mexico did not constitute a particular social group. Citing Henriquez-Rivas, 707 F.3d at 1090, we held that the proposed group was not “sufficiently particular that it. can- be described with passable distinction that the group would be recognized as a discrete class of persons.” Ramirez-Munoz, 816 F.3d at 1229.

As in Ramirez-Munoz, the BIA’s rejection of Garay’s purported class of “deportees from the United States to El Salvador” ' is not contrary to our holding in Henriquez-Rivas that “considerations of diversity of lifestyle and origin” may not be “the sine qua non of ‘particularity’ analysis.” 707 F.3d at 1093-94. To go so far would come close to doing away with the particularity requirement, which was included in the plain language of the statute enacted by Congress. Aguirre-Aguirre, 526 U.S. at 419, 119 S.Ct. 1439. However, this was not our intent. Where a petitioner makes a prima facie showing of a “discrete class of persons,” neither diversity of lifestyle nor origin will undermine that group. But where, as here,-a petitioner proffers a group that is amorphous rather than discrete, he can hardly be heard to argue that the BIA may not consider the proposed group’s lack of cohesion in determining that it is not particular.

Applying the deference due to the BIA’s decision and reviewing the entire record, we reject Garay’s challenge to the BIA’s determination that his proposed group of “deportees from the United States to El Salvador” is not cognizable.

y

Garay challenges the BIA’s denial of his CAT claim as based on legal error and on facts not found by the IJ. The Government responds that substantial evidence supports the agency’s decision and any error in the BIA’s assessment of Ga-ray’s CAT claim was invited because he asked the BIA to undertake plenary review of his CAT claim. We find that the denial of Garay’s CAT claim was premised on legal error and vacate the denial, of CAT relief.

We review de novo issues of law regarding CAT claims. Edu v. Holder, 624 F.3d 1137, 1142 (9th Cir. 2010). “The BIA’s findings underlying its determination that an applicant is not eligible for relief under the CAT are reviewed for substantial evidence.” Arteaga, 511 F,3d at 944. Under that standard, we “uphold[ ] the BIA’s determination unless the evidence in the record compels a contrary conclusion.” Id. Where the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, “our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks omitted).

. To. qualify for CAT relief, an applicant must show that ‘.‘ ‘it is more likely -than not that he ... would be tortured if removed..." Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C. F. R. § 208.16(c)(2)), “Acts constituting torture are varied, and include beatings and killings.” Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008); see also Cole, 659 F.3d at 771 (same). An applicant for CAT relief does not need to show that he would be tortured on account of a protected ground. Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001); see also Cole, 659 F.3d at 770 (“[T]he provision for deferral of removal under CAT applies to all applicants, even those who ... are former gang members convicted of an aggravated felony.”).

. Reviewing Garay’s claim on appeal, the BIA stated that it reviewed the IJ?s decision for clear error. Matter of W-G-R-, 26 I. & N. Dec. at 224-26. After reviewing evidence related to Garay’s claims that he feared torture at the hands of rival gangs, the police, or clandestine death squads, id. at 224-25, the BIA concluded that,“the Immigration Judge’s ' predictive findings with respect to the respondent’s' torture claim are not clearly erroneous.” Id. at 225.

In a footnote, the BIA addressed the IJ’s statement that the materials “contain little if any information concerning the treatment of former gang members ... beyond being killed.” Id. at 226 n.9. The BIA read the IJ’s statement to reflect not that the IJ believed killings are not torture, but “Mather, the Immigration Judge held that the evidence was not sufficient to show a clear probability that the respondent would be tortured,” Id.

A

We are troubled by the BIA’s conclusion that the IJ’s “predictive findings with respect to [GarayJ’s torture claim are not clearly erroneous.” Matter of W-G-R-, 26 I. & N. Dec. at 225. The BIA did not identify any specific “predictive findings” in the IJ’s decision. At oral argument, counsel for the Government was unable to point to any language in the IJ’s decision that can be read to constitute “predictive findings.”

If the BIA was referring to the. IJ’s conclusion that Garay had not established that the El Salvadoran police were looking for him, the BIA’s conclusion is sound. This, however, is not enough to support the denial of Garay’s CAT claim, which also identified gang members and clandestine death squads as possible sources of feared torture. See Cole, 659 F.3d at 775 (remanding where the BIA failed to “consider the aggregate risk that Cole would face from police, death squads, and gangs if returned to Honduras”).

If the “predictive findings” the BIA was referring to include the IJ’s discounting of Garay’s written description of the torture he feáred at the hands of gang members, this is problematic for a number of reasons. First, the IJ’s discounting of Garay’s description of the torture he feared cannot reasonably be' characterized as a “predictive finding.” Second, the BIA did not acknowledge oh correct the IJ’s apparent disregard of Garay’s written declaration describing Mara 18’s practice of killing defectors by placing tires around them and setting them on fire. Garay’s failure to reiterate this assertion in his testimony does not negate the assertion. See, e.g., Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014) (“It is well established that ‘the mere omission of details is insufficient to uphold an adverse . credibility finding.’,” (quoting Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005))); Tekle v. Mukasey, 533 F.3d 1044, 1053 (9th Cir. 2008) (finding legal error where IJ failed to provide the petitioner with an opportunity .to explain a perceived inconsistency).

Most importantly, however, the BIA’s interpretation of the IJ’s statement as a “predictive finding” is problematic because it does not correct the IJ’s inference that killings are not torture. Whether reviewed for clear error as a factual finding or reviewed de novo as a question of law or judgment, we cannot read the IJ’s statement as reflecting anything other than an erroneous view that killings are not torture. Bromfield, 543 F.3d at 1079 (“Acts constituting torture are varied, and include beatings and killings.”).

The BIA should have acknowledged and corrected the IJ’s error and remanded the matter to the IJ. See Figueroa v. Mukasey, 543 F.3d 487, 498 (9th Cir. 2008) (reversing and remanding where the BIA failed to correct an IJ’s legal error). Further, it appears that the IJ’s error prevented the IJ from undertaking the necessary review of all the record evidence, including evidence that former gang members are killed, and from assessing whether Garay demonstrated a probability that he would be killed or otherwise tortured.

B

The Government maintains that, despite the BIA being generally precluded from undertaking its own fact finding in the first instance, it could do so on Garay’s appeal because he requested plenary review of his CAT claim. We reject this argument.

As the Government concedes, the BIA was not empowered to undertake the necessary fact finding to decide Ga-ray’s claim in the first instance. Moreover, the invited error doctrine, which the Government invokes, does not relieve the agency of its obligation to follow its own regulations and apply the correct standard of review. Cf. Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th Cir. 2014) (“ ‘[I]t is one thing to allow parties to forfeit claims, defenses, or lines of argument; it would be quite another to allow parties to stipulate or bind us to application of an incorrect legal standard, contrary to the congressional purpose.’ ” (quoting Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009))); United States v. Lindsey, 634 F.3d 541, 555 (9th Cir. 2011) (“[I]n order for the invited error doctrine to apply, a defendant must both invite the error and relinquish a known right.”).

VI

Accordingly, we deny Garay’s petition with respect to his withholding claims, and grant only with respect to the denial of his application for CAT relief, which we vacate and remand to allow the agency to reconsider the application for CAT relief recognizing that killings can constitute torture and to undertake the requisite fact finding in accordance with the agency’s regulations.

PETITION FOR REVIEW GRANTED in part and DENIED in part; denial of CAT relief VACATED and REMANDED.

      . Withholding of removal, 8 U.S.C. § 1231(b)(3), and protection against removal under Article 3 of the Convention Against Torture (“CAT"), 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984),

      . The BIA did not discuss any changes to the immutability requirement.

      . An asylum or withholding applicant's burden includes (1) “demonstrating the existence of a cognizable particular social group,” (2) "his membership in that particular social group,” and (3) "a risk of persecution on account of his membership in the specified particular social group.” Matter of W-G-R-, 26 I. & N. Dec. at 223 (citing Ayala v. Holder, 640 F.3d 1095, 1097-98 (9th Cir. 2011)). The third element is often referred to as the "nexus” requirement.

      . As we affirm the BIA’s determination that Garay failed to demonstrate membership in a cognizable group, see infra, we do not reach the BIA’s treatment of nexus. We note, however, that the BIA's differentiation between the status of being a former gang member and the retributory acts of the gang has been criticized. See Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015) ("[T]he BIA drew too fine a distinction between Oliva's status as a former member of MS-13 and the threats to kill him for breaking the rules imposed on former members. While it is true that Oliva’s decision to stop paying rent ... was the immediate trigger for the gang’s brutal assault on Oliva, it was Oliva’s status as a former gang member that led MS-13 to demand rent in the first place and to assault him for failure to pay it”).

      . See Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 594 (3d Cir. 2011) (“The concept is even more elusive because there is no clear evidence of legislative intent.”).

        , Since Henriquez-Rivas, we have issued opinions in two cases involving the meaning of "membership in a particular social group.” Flores Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015); Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014). In both cases, we acknowledged that the BIA had revisited its interpretation of the phrase "particular social group” in M-E-

        V-G- and W-G-R-. Flores Rios, 807 F.3d at 1124, 1127; Pirir-Boc, 750 F.3d at 1079, 1082-84. However, in neither case did we address what deference was due the BIA’s new articulation of its construction of "membership in a particular social group.”

      . Our belief was not unanimous. In a concurring opinion, Judge McKeown observed that ‘‘[d]efining social visibility from the perspective of society better comports with the case law” and "also makes common sense." Henri-quez-Rivas, 707 F.3d at 1094 (McKeown, J,, concurring).

      . These are (1) when persecution may lead to a group’s initial recognition, and (2) in cases of persecution on account of imputed grounds. Pirir-Boc, 750 F.3d at 1083 n.6 (citing M-E-V-G-, 26 I. & N. Dec. at 242-43).

      . Garay also argues that the BIA’s analysis of international law is both incomplete and flawed, supporting rejection of its “social distinction” requirement. However, the BIA did consider international refugee standards and determined that its approach to defining a particular social-group was not “fundamentally different from international standards.” Matter of W-G-R-, 26 I. & N. Dec. at 221. Regardless, although the United Nations Protocol Relating to the Status of Refugees and , United Nations High Commissioner for Refugees guidance may be useful in construing the provisions added .to the Immigration and Nationality Act by the Refugee Act, they do not have the force of law. Aguirre-Aguirre, 526 U.S. at 427, 119 S.Ct. 1439; Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009).

      . Garay made two additional arguments, neither of which are persuasive. First, he argues that the BIA erred in relying on Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007), to find Garay’s proposed social group was not cognizable. Although the IJ relied on Arteaga, the BIA did not and only mentioned Arteaga in a footnote. Matter of W-G-R-, 26 I. & N. Dec. at 215 n.5. Since Arteaga was not crucial to the BIA's decision, we express no opinion on the correctness of the BIA’s footnote.
      Second, Garay argues that the BIA’s articulation of the "particularity” and "social distinction” requirements imposed a new evi-dentiary standard and the BIA’s failure to give him an opportunity to meet that new standard denied him due process. We note that Garay submitted extensive country conditions evidence in support of his application and has identified no additional evidence that he would have submitted that might change the outcome. Thus, even if the BIA had articulated a new standard, Garay would still have failed to show prejudice, and thus would not be entitled to relief. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) ("To prevail on a due-process claim, a petitioner must demonstrate both a violation of rights and prejudice.”).

      . The BIA referred in its opinion to its decision in Matter of M-E-V-G, 26 I. & N. Dec. 227, decided the same day. In M-E-V-G, the BIA explained:
      A particular social group must be defined by characteristics that provide, a clear benchmark for determining who falls within the group. Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. at 76 (holding that wealthy Guatemalans lack the requisite particularity to be a particular social group). .It is critical that the terms used to describe the group have commonly accepted definitions in the society of which the group is a part. Id. (observing that the concept of wealth is too subjective to provide an adequate benchmark for defining a particular social group).

        Id. at 239. The BIA further held that a "group must also be discrete and have definable boundaries—it must not be amorphous, over-broad, diffuse, or subjective.” Id.

      . Garay’s only testimony in support of his proposed particular social group of deportees was: "Because almost all the time the people that are returned from here, or they are deported from here, they stay in detention for investigation purposes," However, Garay then qualified his statement by indicating that the government was most interested in individuals who have criminal records. In his brief to the BIA, Garay alleged in a footnote that he "faces a danger of future persecution based on his membership in a particular social group of deportees from the United States to El Salvador,” and objects that the IJ "did not address this social group definition at all.” In the next section of his brief, which addresses his claim for relief under the CAT, Garay argued that he will be tortured because he is a former gang member and a deportee. He asserts that deportees are mistreated upon their return because they are presumed to be gang members. Taking Garay’s assertions at face value, they do not support a finding that all deportees from the United States constitute a "discrete class of persons.” Matter of S-E-G-, 24 I. & N. Dec. at 584.

        .See, for. example, Delgado-Ortiz v. Holder, 600 F.3d at 1151-52 (holding that "returning Mexicans from the United States” are "too broad” to qualify as a particular social group); Lizama v. Holder, 629 F.3d 440, 446-48 (4th Cir. 2011) (holding that "deportees with criminal histories” returning to El Salvador from the United States are "too broad” to constitute a particular social group).

      . Before us, the Government does not adopt the BIA's reading of the IJ’s statement, but posits that the IJ "apparently meant that the materials were no more specific than [Garay's testimony] about how the death of former gang members might come about.”

      . In Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012), we agreed with the Third Circuit that the "likelihood of torture” encompasses two inquiries: " '(1) what is likely to happen to the petitioner if removed; and (2) does what is likely to happen amount to the legal definition of torture.” Id. 915-16 (quoting Kaplun v.

        Att'y. Gen., 602 F.3d 260, 271 (3d Cir. 2010)). The first is a factual question and subject to clear error review; the second is a legal question subject to de novo review. Id.

      . Garay alleges in his Reply Brief that the same IJ that heard Garay's case concluded in another case that killing is not torture. It appears that in an unpublished decision, the BIA remanded in light of our opinion in Bromfield, 543 F.3d 1071, to permit the IJ to conduct further fact-finding in order to determine "whether the killings at issue in [that] case constituted torture.” See In re Dionicio Ziranda-Ambriz, File No. [ AXXX-XXX-XXX ] (BIA Jan. 22, 2013) at 3.

      . We also reject the BIA’s alternative basis for denying CAT relief. The BIA purported to find that there was insufficient evidence of government acquiescence to any torture by gang members. W-G-R-, 26 I. & N. Dec. at 226; see 8 C. F. R. § 208.18 (defining torture in relevant part as "pain or suffering ... inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”). However, the IJ did not make any findings about acquiescence and the BIA’s own regulations prevent the BIA from making its own factual findings and require it to remand cases to the IJ if further fact-finding is needed. 8 C. F. R. § 1003.1 (d)(3)(I), (iv). The BIA followed this principle in the withholding context when it declined to discuss whether the Salvadoran government was unable or unwilling to control the Mara 18 gang members because the IJ had not made findings on it, but oddly, it did not follow the same rule in the CAT context. Compare W-G-R-, 26 I. & N. Dec. at 224 n.8 with id. at 226,

      .Under 8 C. F. R. § 1003.1(d)(3)(I) and (iv), "(1) the Board will not engage in de novo review of findings of fact determined by the immigration judge; and (2) except for the taking of administrative notice of commonly known facts, the Board will not engage in factfinding in the course of deciding appeals.” Brezilien v. Holder, 569 F.3d 403, 412 n.3 (9th Cir. 2009); Ridore, 696 F.3d at 911. "Rather, ‘[fjacts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.’ ” Id. (quoting 8 C. F. R. § 1003.1(d)(3)(I)). ”[T]he BIA cannot disregard the IJ’s findings and substitute its own view of the facts. Either it must find clear error, explaining why; or, if critical facts are missing, it may remand to the IJ.” Id. at 919. "In contrast to these substantive limitations on factfinding, '[t]he Board may review questions of law, discretion, and judgment on all other issues in appeals from decisions of immigration judges de novo.’ ” Brezilien, 569 F.3d at 412 n.3 (quoting 8 C. F. R. § 1003.1(d)(3)(ii)).


author: HURWITZ, Circuit Judge: KLEINFELD, Senior Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Alfonzo WILLIAMS, AKA Fonz, aka Relly; Antonio Gilton, AKA TG, AKA Tone; Barry Gilton, AKA Prell; Lupe Mercado; Adrian Gordon, AKA Tit; Reginald Elmore, AKA Fat Reg; Charles Heard, AKA Cheese; Esau Ferdinand, AKA Sauce; Paul Robeson, AKA P World; Monzell Harding, Jr.; Jaquain Young, AKA Loc, Defendants-Appellees.
    No. 15-10475
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 16, 2016, San Francisco, California
    Filed December 5, 2016

      Ann M. Voigts (argued), Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney’s Office, San Francisco, California; for Plaintiff-Appellant.
    Mark Stuart Goldrosen (argued), San Francisco, California, for Defendants-Ap-pellees.
    Before: ANDREW J. KLEINFELD, JOHNNIE B. RAWLINSON, and ANDREW D. HURWITZ, Circuit Judges.
   Dissent by Judge KLEINFELD

OPINION

HURWITZ, Circuit Judge:

Antonio Gilton was arrested for murder and promptly invoked his right to an attorney. Hours later, after Gilton was taken from police headquarters to a jail, a sheriffs deputy asked him whether he was a member of a criminal gang. The government seeks to introduce Gilton’s responses to that questioning in its case-in-chief to establish membership in an “enterprise,” an element of the RICO offense for which he is charged. 18 U.S.C. § 1962(c), (d). The district court suppressed Gilton’s statements under the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

I.

On the afternoon of July 4, 2012, San Francisco police officers arrested Gilton for the murder of Calvin Sneed. Officers first took Gilton to a local police station; he was transported that evening to an interrogation room at the San Francisco Hall of Justice. At the Hall of Justice, a homicide inspector advised Gilton of his Miranda rights and attempted to interrogate him; Gilton unequivocally invoked his right to an attorney.

Gilton then was taken to county jail and placed in a holding cell. Around 2:30 a.m. on July 5, a deputy sheriff removed Gilton from the cell and asked whether he was a gang member. The deputy did not advise Gilton that he was free to return to his cell without answering or to have a lawyer present; nor was Gilton informed that his answers could be used to incriminate him. In response to the deputy’s inquiry whether he was affiliated with the Fillmore/Central Divisadero Playas (“CDP”) gang, Gil-ton said, ‘Yeah, I hang out there, put me where I’m from.”

Gilton’s answers were entered by the deputy on two forms used by jail officials in determining where to house inmates— an “Information Report,” which designates any gang affiliation, and a “Class Interview,” which reflects whether the prisoner presents any “High Risks,” including being a gang member. The deputy designated Gilton a gang member on the Information Report, and checked off “Gang Member” on a list of “High Risks” on the Class Interview. Absent a direct admission of gang affiliation, a prisoner can still be designated a gang member on the forms if two other criteria are met—including a gang-related tattoo, a prior gang-related arrest, frequent association with validated gang members, or police intelligence that he is a gang member. In classifying Gilton, the deputy relied not only on his responses to questioning, but also on his arrest record and police intelligence.

Gilton was initially charged in state court with murder, conspiracy to commit murder, discharge of a firearm at an occupied motor vehicle, and possession of a firearm by a felon. In November 2013, he was indicted by a federal grand jury and the state charges were dismissed. A superseding indictment charged Gilton with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), murder in aid of racketeering for the murder of Calvin Sneed, 18 U.S.C. § 1959(a)(1), and related firearms offenses. An element of the RICO count is Gilton’s membership in a RICO enterprise—here, the CDP gang. See 18 U.S.C. § 1962(c), (d).

Gilton moved to suppress the statements made to the deputy about gang affiliation. The district court granted the motion, holding that because “asking about Gilton’s gang affiliation was reasonably likely to elicit incriminating information,” the so-called “booking exception” to Miranda did not apply. This timely appeal followed. See 18 U.S.C. § 3731 (allowing appeal of order granting motion to suppress).

II.

Under the iconic rule of Miranda v. Arizona, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. Once the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Id. at 444-45, 86 S.Ct. 1602. “[UJnless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Id. at 479, 86 S.Ct. 1602.

“[T]he term ‘interrogation’ under Miranda refers ... to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The so-called “booking questions exception” exempts “from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services.” Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (plurality opinion) (quotation marks omitted) (concluding that the answers to questions regarding the defendant’s name, address, height, weight, eye color, date of birth, and current age were admissible in the absence of Miranda warnings); see id. at 608, 110 S.Ct. 2638 (assuming the existence of a “routine booking qúestion” exception but finding it “unnecessary to determine whether the questions fall within” it) (Rehnquist, J., concurring). Because such questions “rarely elicit an incriminating response, routine gathering of biographical data does not constitute interrogation sufficient to trigger' constitutional protections.” United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046 (9th Cir. 1990).

The booking questions exception, however, is subject to an important qualification: “When a police officer has reason to know that a suspect’s answer may incriminate him, however, even routine questioning may amount to interrogation.” United States v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993). Thus, we have consistently emphasized, consistent with Innis, that “the ultimate test for whether questioning constitutes interrogation is whether, in light of all the circumstances, the police should have known that a question was reasonably likely to elicit an incriminating response.” United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981); see United States v. Washington, 462 F.3d 1124, 1132-33 (9th Cir. 2006) (applying Booth). Thus, for example, when there is reason to suspect that a defendant is in the country illegally, questions regarding citizenship do not fall under the booking exception—even if they are biographical—because a response is reasonably likely to be incriminating. See Gonzalez-Sandoval, 894 F.2d at 1047; United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983); see also Henley, 984 F.2d at 1042 (“[W]hile there is usually nothing objectionable about asking a detainee his place of birth, the same question assumes a completely different character when an INS agent asks it of a person he suspects is an illegal' alien.”).

The government insists that the deputy who asked about Gilton’s gang affiliation could not have known that a response was reasonably likely to be incriminating, because no gang-related charges were then pending. But, “[t]he test is an objective one; the subjective intent of the police is relevant, but not conclusive.” Washington, 462 F.3d at 1132. The absence of specific gang-related charges does not mean that questions regarding the gang affiliation of a defendant arrested for a violent crime are not likely to prove incriminating. As a unanimous California Supreme Court recently noted, gang membership exposes a defendant to “a comprehensive scheme of penal statutes aimed at eradicating criminal activity by street gangs.” People v. Elizalde, 61 Cal.4th 523, 538, 189 Cal.Rptr.3d 518, 351 P.3d 1010 (2015).

The California Street Terrorism Enforcement and Prevention Act created a substantive offense, section 186.22(a), which punishes as a misdemeanor or felony “any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” Subdivision (b)(1) of that section imposes greater punishment when a felony is committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” The additional punishment can be substantial.
Section 12022.53 provides enhancements for 'personal use or discharge of a firearm. Its provisions apply to any principal when the offense is committed to benefit a criminal street gang.
Finally, in 2000 the voters passed Proposition 21, which added intentional gang-related murders to the list of special circumstances authorizing penalties of death or life without the possibility of parole. It also created the crime of conspiracy to commit a felony by active street gang participants.

Id. at 538-39, 189 Cal.Rptr.3d 518, 351 P.3d 1010 (alterations, citations, and quotation marks omitted).

Gang membership may also expose a defendant to federal criminal liability. For example, a defendant’s sentence for a federal drug crime or crime of violence is increased by ten years if he “participates in a criminal street gang with knowledge that its members engage in or have engaged in a continuing series of’ violent or drug offenses or “intends to promote or further the felonious activities of the criminal street gang.” 18 U.S.C, § 521(d)(1), (2). The federal sentencing guidelines note that “an upward departure may be warranted” “[i]f the defendant is subject to an enhanced sentence” under § 521. U.S. Sentencing Guideline Manual § 5K2.18 (U.S. Sentencing Comm’n 2015). And—as here—gang membership can give rise to RICO charges when the gang is alleged to be an “enterprise.” See 18 U.S.C. §§ 1961(4), 1962.

The risk that information about gang affiliation will prove incriminating is even greater when a defendant is charged in California with murder, a crime that the state’s ^Supreme Court has acknowledged is “frequently committed for the benefit of criminal street gangs.” Elizalde, 61 Cal.4th at 540,189 Cal.Rptr.3d 518, 351 P.3d 1010. When, the deputy asked Gilton about his gang membership, he had already been arrested on charges of murder, conspiracy to commit murder, discharge of a firearm at an occupied motor vehicle, and possession of a firearm by a felon. Questions about Gilton’s gang affiliation were thus reasonably likely to elicit an incriminating response, even if the federal RICO charges had not yet been filed. See People v. Elizalde, 166 Cal.Rptr.3d 16 (Cal.App. 2013) (holding statements regarding gang affiliation inadmissible when officer who asked defendant about his gang affiliation for housing purposes was “aware that [the defendant] had been charged with murder” but not that it was gang-related), aff'd, 61 Cal.4th 523, 189 Cal.Rptr.3d 518, 351 P.3d 1010 (2015).

The government’s assertion that such questions are posed routinely, and that the deputy asked the questions for a non-investigatory purposé, does not alter our conclusion. “The test is an objective one, however, and thus the subjective intent of the police, while relevant, is not conclusive.” Booth, 669 F.2d at 1238. And, the objective inquiry is simple: Under the circumstances, are questions about gang affiliation reasonably likely to produce an incriminating response? In a case involving Medicare fraud, they are not. But when murder is the charge, the questions—even if asked for administrative purposes—are reasonably likely to elicit incriminating information.

The government argues that this case is controlled by Washington, in which we held that an officer’s question about a defendant’s gang nickname was “routine gathering of background information” that did not rise to the level of interrogation. 462 F.3d at 1133. The defendant in Washington argued that his response was likely to be incriminating because it might be used to identify him as having committed the charged robbery. We rejected that argument because, taken “to its logical conclusion, any time an informant uses a particular name to identify the person who committed a crime, it would be impermissible interrogation for the police to ask the suspect his name because confirming his identity would be ‘incriminating.’ ” Id. We noted that in most cases “simply asking for a suspect’s name” or its equivalent is not likely to produce an incriminating response, and even if identification “may help lead to the prosecution of that person for a crime,” a person’s identity alone, is not protected by the Fifth Amendment’ Id.

But this is far different case. As discussed above, a defendant charged with a violent crime in California who is a gang member is subject to far greater jeopardy than those who are not gang members. And, the same is true under federal law. Seeking information about gang membership is thus far more likely to produce an incriminating response than inquiring about a defendant’s nickname.

The government also attempts to invoke the “public safety exception” to Miranda articulated in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In Quarles, a rape victim approached police officers, described her assailant, stated that he was armed with a gun, and said that he had just entered a grocery store. Id. at 651-52, 104 S.Ct. 2626. An officer approached the suspect in the store, frisked him, and found that “he was wearing a shoulder holster which was then empty.” Id. at 652, 104 S.Ct. 2626, The officer asked him where the gun was, the suspect responded; the officer immediately retrieved the loaded gun, placed the suspect under arrest and read him his Miranda rights. Id.

The Court held that, “on these facts there is a ‘public safety’ exception to the requirement that Miranda warnings be given.” Id. at 655, 104 S.Ct. 2626. The police “in the very act of apprehending a suspect, were confronted with the immediate. necessity of ascertaining the whereabouts of a., gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket.” Id. at 657, 104 S.Ct. 2626. .The Court concluded, that in such a “kaleidoscopic situation .... where spontaneity rather than adherence to a police manual is necessarily the order of the day,” officers should not be placed “in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.” Id. at 656, 657-58, 104 S.Ct. 2626.

“In determining whether the public safety exception to Miranda applies, we ask whether there was an objectively reasonable need to protect the police or the public from any immediate danger.” United States v. Carrillo, 16 F.3d 1046, 1049 (9th Cir. 1994) (quotation marks omitted) (holding that asking a defendant whether he had any drugs or needles on his person-prior to a body search—fell within the exception as it “stemmed from an objectively reasonable need to protect [the officer] from immediate danger”); see also United States v. Brady, 819 F.2d 884, 887-88 (9th Cir. 1987) (applying public safety exception to a question whether defendant had a gun in his car because the officer “had to control a dangerous situation” in which a crowd had gathered and the defendant’s car “stood with its door open and the keys in the ignition”). There was no such danger here. The deputy retrieved Gilton from a locked holding cell around 2:80 a.m.—hours after Gilton arrived at the jail. There was no “kaleidoscopic situation,” nor was the deputy put to the Hob-son’s choice of deciding within seconds whether society was best served by asking the questions without a Miranda warning or giving such a warning and damaging his ability to neutralize a “volatile situation.” Quarles, 467 U.S. at 656, 658, 104 S.Ct. 2626. That the questions may have been asked in the general interests of inmate safety does not mean that there was an urgent need to protect either the deputy or others against immediate danger; the narrow “public safety exception” therefore does not apply.

III.

For the reasons above, we affirm the district court’s suppression order. But, it is also important to note what we do not hold. We do not hold that prison officials may not inquire into a prisoner’s gang membership in the interests of inmate safety. See, e.g., Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S.Ct. 1510, 1518, 182 L.Ed.2d 566 (2012) (“Gang rivalries spawn a climate of tension, violence, and coercion.”) (quotation marks omitted). Nor do we hold that the responses to such questions cannot be used for purposes of inmate housing. Rather, we hold only that when a defendant charged with murder invokes his Miranda rights, the government may not in its casein-chief admit evidence of the prisoner’s unadmonished responses to questions about his gang affiliation.

AFFIRMED.

KLEINFELD, Senior Circuit Judge,

dissenting:

I respectfully dissent. The district court’s suppression order should be reversed, and the statements admitted. Two exceptions to Miranda, the “public safety exception” and the “booking exception,” apply. These exceptions make Gilton’s answer to the gang question admissible against him in his criminal trial.

Here is the classification form as filled in for Antonio Gilton, the codefendant at issue:

It is evident from the form that Gilton was already thought to be a gang member by sheriffs department personnel, that he was asked if he was affiliated with “Fillmore/CDP,” and that he answered “Yeah, I hang out there, put me where I’m from.” The acronym “CDP” refers to the Central Divisadero Playas Gang. This answer was incriminating, both on the charges against Gilton for killing and conspiring to kill, and for state gang or federal RICO charges that might subsequently be filed.

Gilton’s answer was obtained and also was valuable for an entirely different purpose, determining where to put him in jail and who should or should not be his roommate. He needed to be transferred from his holding cell to the jail. A “holding cell” is a temporary and often solitary and uncomfortable cell in which people are held for a few hours until they are transferred to jail. A jail is where prisoners are held before trial, if not released on bail, and on short sentences after conviction, typically for misdemeanors rather than felonies. Gil-ton’s answer, “put me where I’m from,” shows that he understood that his reply would be used as an aid in determining where in jail to put him. He chose to express a preference. His answer appears to be artfully worded; he does not say in so many words that he is a member of the gang, just that he “hang[s] out” with the people in it. Some gangs have “hanga-rounds,” non-members who are. considering and being' considered for membership. Gilton’s declaration in support of his motion to suppress is also artfully worded. He does not say that he would have refused to say that he hung around with the gang and wanted to be placed there, had his Miranda warning been repeated, or had a lawyer been provided.

Two exceptions to inadmissibility apply here, the “public safety exception” and the “routine booking question” exception. Their purposes overlap in this case.

The “public safety exception” allows admission of a defendant’s custodial statements against him in his criminal trial, despite lack of Miranda compliance. This exception is unaffected by whether the question is likely to elicit an incriminating response. The Supreme Court established it in New York v. Quarles. Though the facts are different here, the rationale applies. In Quarles, the police chased a suspected rapist, caught him, frisked him and found an empty holster, and handcuffed him. Then, before Mirandizing him, the police asked him where the gun was. He replied, nodding toward some empty cartons and saying “the gun is over there.” It was. He. was formally placed under arrest, Mirandized, and asked if it was his gun and where he got it. He replied that it was indeed his gun, which he had purchased in Miami. The Court held that the admission he made while cuffed but before getting his Miranda warning, that “the gun is over there,” could not properly be suppressed, despite Miranda.

Quarles held that the statement, “the gun is over there,” was made while the subject was in police custody. Importantly, the officers were no longer concerned for their own physical safety. The Court held that even though the police were not in danger, nor was the suspect still dangerous to others, “there is a ‘public safety' exception to the requirement that Miranda warnings be given.” The gun was hazardous to the public if found by an accomplice, store employee, or store customer. The Court explained this, in terms of “social cost.” The rationale was that Miranda warnings in custodial interrogation were desirable when the social cost was merely fewer convictions, but not when there was the additional social cost such as the danger from the gun. The Court held that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” The “public safety exception” “will be circumscribed by the exigency which justifies it.” Thus Miranda has no application where exigencies involving public safety justify the question, even though the prophylactic against compelled self incrimination is sacrificed.

Time mattered in Quarles, because the police wanted to find the gun before someone else did. Time matters here too, because Gilton needed to be safely housed in jail at the time of his transfer from the holding cell. No chase or shooting was going on in Quarles. The only exigency was from the gun, because Quarles knew where he had tossed it and the police , did not. The Court’s explanation, in terms of “social cost,” meant that had the only burden of applying Miranda been suppression of the suspect’s admission at trial, then Miranda would have applied, but the additional “social cost” of danger to the public made the Miranda prophylactic too risky.

That same “social cost” rationale applies to Gilton’s request to “put me where I’m from,” with the people he “hangs around” with. People in jail, are part of the “public.” Some are innocent, some are nonviolent people, there for nonviolent reasons like unpaid fines, and some are extremely dangerous violent criminals and gang members. After confining them and rendering them unable to ' defend themselves, the state owes them a duty to protect them from each other. “California’s other prisoners may be murderers, rapists, drug dealers, and child molesters, but California is responsible for protecting even those sorts of people from murder by other prisoners. Indeed, the Eighth Amendment requires that prison officials ‘must take reasonable measures to guarantee the safety - of the inmates.’” And as the Supreme Court has said, “[L]aw enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate ‘risks for facility staff, for the existing detainee population, and for a new detainee.’ ”

A second, independent exception should also be extended to this case, the “booking exception,” The plurality opinion in Pennsylvania v. Muniz holds that routine booking questions to secure biographical data necessary to complete booking or pretrial services are exempt from the Miranda prohibition, so the answers need not be suppressed, The Court distinguished between questions “reasonably related to the police’s administrative concerns” and questions “designed to elicit incriminatory admissions.” Had 'the question about gang membership been "asked of Gilton by someone responsible for prosecuting him, or investigating for his prosecution, it would be “designed to elicit incriminatory admissions.” But it was not. Asked by someone responsible for assigning his housing in jail, as it was, the question was “reasonably related to the police’s administrative concerns.” The administrative concern was safety for Gilton, .and safety for inmates physically accessible to him, while he was in jail.

That Gilton was charged with murder made the need to ascertain gang affiliation especially important for safety. Without the gang knowledge, he could easily have been put in danger from revenge by someone affiliated with the person he had allegedly killed. As the Court explained in Maryland v. King, knowing “the type of person whom they are detaining” mitigates risks to staff, inmates, and the defendant. In this case, the sheriff’s department already had information about Gilton’s gang status, but it could have been wrong or outdated, and confirming what they thought they knew was important to his and others’ safety.

It would be presumptuous of us to limit the Supreme Court decisions in Quarles and Muniz to their facts, and we have not. In United States v. Carillo we held that under Quarles an officer at a detention facility could ask the in-custody suspect if he had any drugs or needles on his person without Mirandizing him. The officer about to pat the inmate down needed to protect himself from the danger of getting pricked by a needle. “[A] pressing need for haste is not essential” to applicability of Quarles. The question in Carillo might not necessarily have elicited an incriminating response, but it did: “no, I don’t use drugs, I sell them.” We held not merely that the officer could ask the question and use the response to protect himself, as the majority in the case before us now would have held; we held that admission of the answer at trial did not violate Miranda.

Nor have we confined the “booking exception” to the facts in Muniz. We held that the exception applied to asking an inmate being booked what his “gang moniker” was, in United States v. Washington. Asking the inmate his gang moniker is similar to asking his gang affiliation, because a “gang moniker” would signify gang membership. The question was as likely to produce an incriminating response in Washington as the similar question was in this case, because it would imply gang membership, and because the police had evidence that “Rock,” Washington’s gang moniker, was the perpetrator. We nonetheless treated this question, likely to elicit an incriminating response, as a “routine booking question” because gang information is routinely obtained “to ensure prisoner safety.” We should apply Washington and conclude that the gang question in the case before us falls within the “booking exception,” so Miranda does not apply.

The majority relies on four cases for its more restrictive view of the booking exception, Booth, Henley, Matar-Abundiz, and Gonzalez-Sandoval. Not a single one of these cases involves a question during booking. The questions were asked, respectively, on the street, in the police car, in a holding cell by an officer interrogating to prove a crime, and in prison ten days after booking had occurred. None of these cases is in point.

There is an “objectively reasonable need” to ask about gang affiliation. As the Supreme Court stated, “Jails and prisons ... face grave threats posed by the increasing number of gang members who go through the intake process.” High-ranking gang members are often incarcerated, and direct the gang’s activities both within and without. There is a high likelihood of violence because jails and prisons are fertile recruiting grounds where gang members live in forced proximity to their rivals.

It is important to protect suspects from being compelled to incriminate themselves. It is also important to protect people in jail from violence and death. Gilton, and those from rival gangs, all had a legitimate interest that the jail was obligated to protect in waking up alive in the morning. The deputy served that legitimate and important interest by asking the gang question. Under both the public safety exception and the booking exception, either of which would suffice without the other, Miranda did not apply to the question, and the answer was admissible in Gilton’s prosecution.

      . The district court also suppressed photographs seized from Gilton’s home. The government does not challenge that ruling on appeal.

      . The record contains no evidence about how frequently the gang questions are asked, or how the decision is made whether to make the inquiry in a particular case.

      . The government does not suggest that the deputy was otherwise unable to secure information needed to house Gilton safely. Indeed, even had Gilton refused to answer the questions, he apparently would nonetheless have been classified as a member of CDP on the basis of his arrest record and officer intelligence.

      . 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).

      . Id. at 652, 104 S.Ct. 2626.

      . Id. at 655-60, 104 S.Ct. 2626.

      . Id. at 655, 104 S.Ct. 2626.

      . Id. at 657, 104 S.Ct. 2626.

        .Id. at 658, 104 S.Ct. 2626.

      . Griffin v. Gomez, 741 F.3d 10, 21 (9th Cir.) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)), cert. denied sub nom. Griffin v. Beard, — U.S. —, 135 S.Ct. 114, 190 L.Ed.2d 43 (2014).

      . Maryland v. King, — U.S.-, 133 S.Ct. 1958, 1972, 186 L.Ed.2d 1 (2013) (quoting Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S.Ct. 1510, 1518, 182 L,Ed.2d 566 (2012)).

      . 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990).

      . Id. at 600, 110 S.Ct. 2638.

      . Id. at 601-02 &n. 14, 110 S.Ct. 2638.

      . People v. Williams, 56 Cal.4th 165, 152 Cal.Rptr.3d 778, 294 P.3d 1005, 1018 (2013) (victim's brother in the next room says "you’re a dead man”).

      . King, 133 S.Ct. at 1971-72.

      . See Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S.Ct. 1510, 1521, 182 L.Ed.2d 566 (2012) (citing Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 752, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)).

      . United States v. Brady, 819 F.2d 884, 888 (9th Cir. 1987).

      . 16 F.3d 1046, 1049-50 (9th Cir. 1994).

        .Id. at 1050.

      . Id. at 1049.

      . 462 F.3d 1124, 1132-33 (9th Cir. 2006).

      . Id. at 1129, 1133.

      . Id. at 1133.

      . United States v. Booth, 669 F.2d 1231, 1234 (9th Cir. 1981).

      . United States v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993).

      . United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046-47 (9th Cir. 1990).

      . United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983) ("Moreover, the questioning conducted by Investigator DeWitt had little, if any, resemblance to routine booking procedures.... [A]ny analogy to routine booking procedures is unwarranted.”).

      . New York v. Quarles, 467 U.S. 649, 659 n.8, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); see United States v. Brady, 819 F.2d 884, 888 n.3 (9th Cir. 1987).

      . Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 132 S.Ct. 1510, 1518, 182 L.Ed.2d 566 (2012).

      . See Griffin v. Gomez, 741 F.3d 10, 22 (9th Cir.), cert. denied sub nom. Griffin v. Beard, — U.S.-, 135 S.Ct. 114, 190 L.Ed.2d 43 (2014).

        .Florence, 132 S.Ct. at 1518.


author: PER CURIAM:

text:
    Marion WILSON, Jr., Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.
    No. 14-10681
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 11/15/2016
    Brian Kammer, Atlanta, GA, Gabrielle Elizabeth Bina, Emily Jane Greb, David James Harth, Lissa Rose Koop, Autumn Noelle Nero, Perkins Coie, LLP, Madison, WI, for Petitioner-Appellant.
    Beth Attaway Burton, Sabrina Graham, Britt C. Grant, Attorney General’s Office, Atlanta, GA, for Respondent-Appellee.
    Adam Mortara, Bartlit Beck Herman Palenchar & Scott, LLP, Chicago, IL, for Amicus Curiae.
    Before ED CARNES, Chief Judge, WILLIAM PRYOR, and JORDAN, Circuit Judges.
   PER CURIAM:

Upon the majority vote of the judges in this Court in active service, on July 30, 2015, this Court vacated this panel’s prior opinion and granted rehearing en banc. We concluded that when reviewing a state prisoner’s petition for a writ of habeas corpus, federal courts need not “look through” a summary decision on the merits to review the reasoning of the state trial court. Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1230 (11th Cir. 2016). We also held that the summary denial of a certificate of probable cause to appeal by the Supreme Court of Georgia was an adjudication on the merits for purposes of our review. Id. at 1235.

The en banc Court remanded to the panel all outstanding issues in this appeal, and we ordered and received supplemental briefing from the parties. The original panel opinion reviewed the “one-line decision of the Supreme Court of Georgia denying Wilson’s certifícate- of probable cause ... because it is the final decision on the merits.” Wilson v. Warden, Ga. Diagnostic Prison, 774 F.3d 671, 678 (11th Cir. 2014) (internal quotation marks omitted), reh’g en banc granted, op. vacated, No. 14-10681 (11th Cir. July 30, 2015). And the panel “[could] not say that the decision of the Supreme Court of Georgia to deny Wilson’s petition .,. ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” Id. at 681 (quoting 28 U.S.C. § 2254(d)(1)). Because the panel opinion reviewed the correct state-court decision and the remaining issues have not changed, we reinstate the original panel opinion and affirm the denial of Wilson’s petition for a writ of habeas corpus.

AFFIRMED.