Rocio Henriquez-Rivas v. Eric Holder, Jr.
2013 U.S. App. LEXIS 2958
| 9th Cir. | 2013Background
- Henriquez-Rivas, a native of El Salvador, saw her father killed by four MS-18 gang members in 1998 and testified against Chimbera and Popo in court.
- She fled El Salvador after threats following her testimony and sought asylum in the United States, entering January 2006.
- The IJ found past persecution and a well-founded fear based on testifying against gang members and the Salvadoran government’s inability to control gangs, granting asylum.
- BIA reversed, holding that the proposed group—people who testified against gang members—lacked social visibility to constitute a particular social group.
- The Ninth Circuit granted en banc review, concluded BIA misapplied its precedents (particularly C-A- and related cases), and remanded for further proceedings; the majority clarified social visibility as perception by society rather than mere on-sight recognition.
- Dissent argued the BIA’s framework should control and that the majority improperly divests the BIA of its role; the case was remanded to address proper PSG boundaries and visibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether witnesses who testify against gang members can be a PSG | Henriquez-Rivas’s testimony against gang members makes her part of a defined, recognizable group | BIA requires social visibility and particular boundaries; witnesses may not meet PSG criteria | Yes; the PSG can include witnesses who testify against gangs; remand to apply proper precedent. |
| How social visibility and particularity should be interpreted and applied | Social visibility is based on perception by society, including persecutors’ views | BIA’s current standards (social visibility and particularity) are appropriately applied | The court adopts a society-perception approach to social visibility and treats particularity as a separate, definitional boundary; remand for BIA to apply properly. |
| Whether BIA erred by deeming the group amorphous and lacking particularity | Group can be described with distinct boundaries (e.g., those who testified against gang members) | Group definition was too amorphous to satisfy particularity | BIA’s error; group can be delineated; remand for reconsideration under correct PSG framework. |
| Whether evidence like El Salvador’s witness-protection law supports PSG status | Law evidence shows societal recognition of vulnerability of witnesses | Domestic laws do not automatically confer PSG status under U.S. asylum law | Not dispositive on PSG; remand for BIA to consider in context. |
| Relief scope on petition; whether to address withholding/CAT | If PSG established, asylum relief should follow; other grounds may be moot | Need not address withholding or CAT on remand | Remand only; does not resolve withholding or CAT at this stage. |
Key Cases Cited
- Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) (defined immutable, non-changeable characteristic standard for PSGs)
- Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) (PSG requires immutable or fundamental identity characteristics)
- Matter of C-A-, 23 I. & N. Dec. 951 (BIA 2006) (introduced social visibility and particularity concepts)
- Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) (requires social visibility or perception of the group by society)
- Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009) (affirmed BIA deference; discusses group boundaries and visibility)
- Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) (further elaborated social visibility and particularity requirements)
- Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008) (rejected certain non-criminal informant groups for lack of visibility)
- In re A-M-E & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007) (discussed country-context and visibility considerations)
- Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582 (3d Cir. 2011) (critical view of social visibility and particularity by Third Circuit)
- Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) (Seventh Circuit rejected social visibility requirement (discussed))
- Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986) (early framework considering societal perceptions of groups)