W-G-R
26 I. & N. Dec. 208
| BIA | 2014Background
- Respondent, a native of El Salvador and former Mara 18 gang member, left the gang after <1 year, was attacked and shot, and fled to the U.S.; IJ found him credible but denied relief and ordered removal.
- Respondent sought asylum/withholding of removal and CAT protection, claiming membership in the group “former members of the Mara 18 gang in El Salvador who have renounced their gang membership.”
- IJ pretermitted asylum as untimely, denied withholding under the INA and protection under the Convention Against Torture; respondent appealed to the BIA.
- BIA reiterates and clarifies its test for a cognizable “particular social group” (PSG): immutable characteristic, particularity, and social distinction (renaming prior “social visibility” to “social distinction” to avoid literal interpretation).
- Applying the test, BIA held the respondent’s proposed group lacks particularity and social distinction and, alternatively, that there is no nexus to PSG membership; the CAT claim also failed for lack of clear probability of torture or government acquiescence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper test for "particular social group" and meaning of "social visibility" | BIA should abandon or modify particularity/visibility requirements as inconsistent with precedent/international standards | BIA defends refinement and renames "social visibility" to "social distinction" to clarify non-ocular meaning | BIA affirms three-prong test (immutable, particularity, social distinction) and renames visibility requirement to social distinction |
| Elements required to establish a cognizable PSG | Respondent: former gang membership + renunciation is an immutable characteristic that defines a PSG | DHS: group is amorphous, overbroad, and criminal-affiliation–based (not protected) | PSG requires (1) common immutable characteristic, (2) particularity, (3) social distinction; criminal/past-gang affiliation generally problematic as defining characteristic |
| Whether "former Mara 18 members who renounced membership" is a PSG | Respondent: this group is discrete and socially identifiable in El Salvador | DHS: group is diffuse, subjective, too broad; little evidence society recognizes former members as distinct | Held not a cognizable PSG: lacks particularity and social distinction; definition too broad and amorphous |
| Nexus and CAT claim (likelihood of torture & government acquiescence) | Respondent: past attacks + renunciation expose him to future persecution/torture and possible detection upon return | DHS: attacks were remote, tattoos removed, no recent threats or evidence of government acquiescence or probable torture | Held: no established nexus to PSG; CAT: not more likely than not to be tortured or to face government acquiescence — claim fails |
Key Cases Cited
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (discusses ambiguity of PSG and federal review of BIA refinement)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (upholds BIA’s particularity and social visibility refinements as reasoned)
- Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006) (affirms Matter of C-A- and use of particularity/social visibility concepts)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (agency case-by-case interpretation of statutory gaps entitled to deference)
- Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986) (early discussion that persecutor perception is relevant but not conclusive to PSG analysis)