M-E-V-G
26 I. & N. Dec. 227
| BIA | 2014Background
- Respondent (Honduran national) alleges gang persecution: repeated assaults, kidnapping, threats to force him to join Mara Salvatrucha, and attacks on his family; sought asylum and withholding of removal.
- Immigration Judge denied relief (2005); BIA summarily affirmed; Third Circuit remanded (2007) for reconsideration of particular social group analysis.
- BIA again denied relief (2008), applying its refinements to “particular social group” (immutability + particularity + social visibility).
- Third Circuit (2011) found the BIA’s social-visibility and particularity requirements inconsistent with prior BIA law and declined Chevron deference, but allowed the BIA to revise its test.
- On remand (this opinion, 2014), the BIA clarifies the standard: keeps immutability and particularity, renames “social visibility” to “social distinction” and expressly rejects any requirement of literal/ocular visibility; remands for further factfinding (nexus, internal relocation, government control).
Issues
| Issue | Respondent’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| How to define “particular social group” | Adopt Matter of Acosta alone (immutability suffices); abandon social-visibility/particularity refinements | Preserve refinements but clarify/streamline them | BIA retains immutability + particularity + social distinction (renamed from social visibility); ocular visibility not required |
| Meaning of “social visibility” | Term wrongly read to require literal/ocular visibility | Term should be clarified or combined with particularity as social distinction | Rename to “social distinction”; requires societal perception of group, not literal visibility |
| Whose perception defines social distinction | Respondent and amici: unclear; some argue persecutor’s view may suffice | DHS: group should exist independently of persecution; society’s perception controls | Group recognition is determined by the society in question, not solely by the persecutor’s perception; persecutor’s view may be evidence but not dispositive |
| Application to gang-related claims | Respondent: youths resisting gang recruitment may be a particular social group | DHS/BIA: gangs often perpetrate indiscriminate criminal violence; group must be particular and socially distinct | Gang-related groups may qualify in some facts, but generalized gang violence often precludes showing a protected-group nexus; remand for factfinding in this case |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (establishing requirement that persecution be "on account of" a protected ground)
- INS v. Cardoza-Fonseca, 480 U.S. 421 (explaining asylum standard and statutory context)
- Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (agency deference framework)
- Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (agency statutory interpretation deference)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (BIA interpretation entitled to deference)
- Fatin v. INS, 12 F.3d 1233 (9th Cir. 1993) (noting breadth/ambiguity of "particular social group")
- Valdiviezo-Galdamez v. Attorney General (Valdiviezo-Galdamez II), 663 F.3d 582 (3d Cir. 2011) (declining Chevron deference to BIA’s prior articulation; remand authority)