Oliverto Pirir-Boc v. Eric Holder, Jr.
750 F.3d 1077
| 9th Cir. | 2014Background
- Petitioner Oliverto Pirir-Boc, a Guatemalan indigenous man, refused gang recruitment, helped his brother leave Mara Salvatrucha, was violently attacked, and fled Guatemala fearing continued gang persecution.
- An IJ granted asylum finding petitioner a member of a particular social group: persons "taking concrete steps to oppose gang membership and gang authority," and found Guatemalan authorities unable/unwilling to protect him.
- The BIA vacated the IJ’s grant, concluding the proposed group lacked the required "particularity" and "social visibility" (later termed "social distinction").
- The Ninth Circuit had issued Henriquez-Rivas en banc holding that witnesses who testify against gang members could be a particular social group; the BIA issued Matter of W-G-R- and Matter of M-E-V-G- after briefing in this case.
- The Ninth Circuit held W-G-R- and M-E-V-G- do not undermine Henriquez-Rivas but require the BIA to conduct a society-specific, evidence-based inquiry into whether the proposed group is recognized by Guatemalan society.
- The Court remanded the asylum and withholding claims for reconsideration in light of Henriquez-Rivas, W-G-R-, and M-E-V-G-, and remanded the CAT claim because the BIA provided no reasoned explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner’s proposed group is a "particular social group" | Pirir-Boc: persons who take concrete steps opposing gang membership are a cognizable group; evidence shows Guatemalan society recognizes them. | Govt/BIA: group lacks "particularity" and "social visibility"/distinction and is like groups previously rejected. | Court: Remand — BIA must perform society-specific, evidence-based analysis consistent with Henriquez-Rivas and BIA rulings. |
| Effect of Henriquez-Rivas vs. W-G-R-/M-E-V-G- | Henriquez-Rivas supports cognizability of anti-gang actors; persecutor perspective important. | BIA’s W-G-R-/M-E-V-G- emphasize society recognition and limit reliance on persecutor perception alone. | Court: No conflict; Henriquez-Rivas remains valid with qualification that persecutor perception is one factor among others. |
| Whether BIA can reject a group because a similar group was found non-cognizable in another country | Pirir-Boc: must analyze society-specific evidence; different countries may recognize groups differently. | BIA: relied on prior decisions to reject cognizability. | Court: BIA may not reject solely because a similar group was rejected in another society; must consider local evidence. |
| Adequacy of BIA’s CAT decision | Pirir-Boc: raised CAT claim on I-589 and presented supporting evidence; BIA failed to explain denial. | BIA: summarily stated petitioner failed to make prima facie case without analysis. | Court: Remand — BIA must provide a reasoned explanation and consider all relevant evidence. |
Key Cases Cited
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) (witnesses against gang members may be cognizable as a particular social group)
- Brand X Internet Servs. v. FCC, 545 U.S. 967 (2005) (courts defer to reasonable agency statutory interpretations under Chevron)
- Cordoba v. Holder, 726 F.3d 1106 (9th Cir. 2013) (standard of review: legal questions de novo; BIA entitled to Chevron deference)
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (CAT standard: "more likely than not" for future torture and requirement to consider all relevant evidence)
- Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (BIA must give reasoned explanation and consider highly probative evidence in CAT decisions)