Lead Opinion
Opinion by Judge BEA; Concurrence by Judge McKEOWN; Dissent by Chief Judge KOZINSKI.
Rocío Brenda Henriquez-Rivas petitions for review of a decision of the Board of Immigration Appeals (“BIA”) sustaining the government’s appeal of an Immigration Judge’s (“IJ”) grant of asylum, and denying her applications for withholding of removal and protection under the Convention Against Torture. Henriquez-Rivas claims she is entitled to asylum because, as a person who testified in a criminal trial against members of a gang who killed her father in El Salvador, she is a member of a particular social group, on account of which she faces a well-founded fear of persecution if she were to return to El Salvador. For the reasons discussed below, we find that the BIA misapplied its own precedent in holding that witnesses who testify against gang members may not constitute a particular social group due to a lack of social visibility. Accordingly, we grant Henriquez-Rivas’ petition for review and remand to the BIA for further proceedings.
I. Statutory Framework
Under the Immigration and Naturalization Act (“INA”), the Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1)(A). To qualify as a refugee, an alien must prove that he is unwilling or unable to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). “An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control.” Bagh-dasaryan v. Holder,
“If past persecution is established, a rebuttable presumption of a well-founded fear arises, 8 C.F.R. § 208.13(b)(1), and the burden shifts to the government to demonstrate that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear.” Tawadrus v. Ashcroft,
The term “particular social group” is ambiguous. Donchev v. Mukasey,
[W]e interpret the phrase “persecution on account of membership in a particular social group” to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should*1084 not be required to change because it is fundamental to their individual identities or consciences.
Id. at 233. Applying that definition in Acosta, the BIA rejected the alien’s arguments because the identifying characteristic of the group (working as a taxi driver) was not immutable. Taxi drivers could change jobs at any time. Id. at 234.
In the years following Acosta, the BIA found that each of the following were members of a particular social group: former members of the Salvadoran national police;
We adopted the Acosta definition of “particular social group” in Hernandez-Montiel v. INS,
In 2006, 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.” Matter of C-A-, 23 I. & N. Dec. 951, 957, 960 (BIA 2006). In C-A-, the BIA held that a group of “noncriminal drug informants working against the [Colombian] Cali drug cartel” was not a particular social group because the group did not have “social visibility” or “particularity.” Id. at 961. The BIA stated that, in so holding, it was not departing from its prior precedent: “[W]e continue to adhere to the Acosta formulation.” Id. at 956.
In C-A-, the BIA discussed some groups that are “understood by others to constitute social groups,” id. at 959, and other groups that are “highly visible and recognizable by others in the country in question,” id. at 960. The BIA rejected the proposed social group in C-A-, noting that “the very nature of the conduct at issue is such that it is generally out of the public view.” Id. at 960. The BIA said that “[r]ecognizability or visibility is limited to those informants who are discovered because they appear as witnesses or other
BIA cases following C-A- further elaborated the meaning of the additional criteria of “social visibility” and “particularity.” In Matter of S-E-G-, the petitioners were three siblings from El Salvador who were threatened by Mara Salvatrucha (“MS-13”) gang members after refusing gang recruitment attempts. 24 I. & N. Dec. 579, 579-80 (BIA 2008). The BIA affirmed the IJ’s denial of asylum,. finding that the proposed social group of “Salvadoran youth who have been subjected to recruitment efforts by MS-13 and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities” did not have “particularity” or “social visibility.” Id. at 581, 583. The group lacked “particularity” because the category was too “amorphous” and the group membership was not easily definable. Id. at 584-85. The group was also not “socially visible”: “There is little in the background evidence of record to indicate that Salvadoran youth who are recruited by gangs but refuse to join ... would be ‘perceived as a group’ by soci-ety_” Id. at 587; see also Matter ofE-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008) (reversing IJ’s grant of asylum after defining “social visibility” in terms of “social perception”: “respondent does not allege that he possesses any characteristics that would cause others in Honduran society to recognize him as one who has refused gang recruitment”).
Following C-A- and subsequent BIA cases, we have applied the “social visibility” requirement as one of general social “perception” rather than of on-sight visibility. In Santos-Lemus v. Mukasey, we concluded that the proposed group of “young men in El Salvador resisting gang violence” was not socially visible; there was no evidence that the petitioner would be “perceived ... to be a member of any kind of anti-gang group.”
Most circuits have accepted the BIA’s “social visibility” and “particularity” criteria. See, e.g., Gaitan v. Holder,
II. Factual Background and Proceedings Below
With this framework in mind, we turn now to the facts of the case. Rocio Brenda Henriquez-Rivas is a native and citizen of El Salvador. In 1998, when Henriquez-Rivas was twelve years old, her father was murdered by four members of the M-18 street gang. Two of the men were known as “Chimbera” and “Popo.” Henriquez-Rivas saw the men enter her house and assault her father. They told her father to ask for forgiveness, which he did. Thinking the men were going to attack her, Henriquez-Rivas fled. As she was running away from the house, Henriquez-Ri-vas heard four gun shots. She did not see who fired the gun, but her sister Mirabel told her that Chimbera shot her father.
Henriquez-Rivas identified two of the suspects in a lineup behind protective glass. She also testified against them in court. Both Chimbera and Popo were present in court while Henriquez-Rivas testified, and both were convicted. Chimbera was sentenced to 7 years in prison because he was a minor and Popo was sentenced to 25 to 30 years in prison.
After her father’s death, Henriquez-Ri-vas lived with her half-sister, Olga. In 2000, when Henriquez-Rivas returned to her father’s house to get some paperwork, a man by the name of Julio told her not to return to the house. Julio explained that some men had been at her house and mentioned to Julio that they killed her father at the direction of someone else.
At her asylum hearing, Henriquez-Rivas testified that her family members saw Chimbera, who had been released from prison, about two times between 1999 and 2004. In 1999, one of Henriquez-Rivas’ sisters saw Chimbera a block from her house and called the police. The police arrived and arrested Chimbera. Another time, Mirabel, Henriquez-Rivas’ younger sister who also witnessed the murder, saw Chimbera on the bus working as a fare collector. Chimbera saw Mirabel and stared at her. For this reason, Mirabel later came to the United States. Henri-quez-Rivas did not personally encounter Chimbera.
In 2005, a man came to Henriquez-Ri-vas’ school and asked if anyone knew “Ro-cío Henriquez.” She thought it was strange that the man would ask for her, so she denied knowing a Rocio Henriquez. Henriquez-Rivas then decided to leave El Salvador. She believed that if she remained in El Salvador the gang members would harm her for testifying against them and because they were required to pay restitution to her family. After Henri-quez-Rivas left for the United States, she learned that Chimbera had come to her town asking for her.
Henriquez-Rivas entered the United States, without inspection, on January 16, 2006. The Department of Homeland Security initiated removal proceedings against her on the ground that she was “an alien present in the United States without being admitted or paroled.” 8 U.S.C. § 1182(a)(6)(A)(i). She conceded remova-bility, and filed an application for asylum, withholding of removal, and protection under the Convention Against Torture.
After a hearing, the IJ found Henri-quez-Rivas’ testimony credible. The IJ concluded that Henriquez-Rivas did not establish she was persecuted on account of political opinion, but concluded that Henriquez-Rivas did establish she was a member of the particular social group of “people testifying against or otherwise opposing] gang members.” The IJ found she had suffered past persecution in El Salvador because her father was murdered, the gang members tried to kill her when they killed her father, and she was threatened by gang members after testifying against them in court. The IJ also concluded that Henriquez-Rivas had established a well-founded fear of future persecution, as there was “a reasonable possibility of suffering such persecution [if] she were to return to El Salvador.” The IJ further found that the Salvadoran government is unable to control gang violence, that the government did not prove changed country conditions, and that internal relocation would not be reasonable. The IJ granted asylum on that basis.
The BIA reversed the IJ’s decision. The BIA reversed the determination that the group of “people testifying against or otherwise [opposing] gang members” constitutes a particular social group. The BIA concluded that the proposed group
III. Standards of Review
We review questions of law de novo. Santos-Lemus,
IV. Discussion
A.
Much of the inter-circuit disagreement over the “social visibility” requirement relates to an ambiguity in the BIA’s use of the term. Does it mean that the proposed particular social group is “understood by others to constitute [a] social group[ ]”? CA-, 23 I. & N. Dec. at 959 (emphasis added). Or, does it mean a bystander can literally see the difference that makes that person a member of the group (so-called “on-sight” or ocular visibility)? Cf. In re A-M-E & J-GU-, 24 I. & N. Dec. 69, 74 (BIA 2007) (citing C-A- 23 I. & N. Dec. at 956) (in denying particular social group status to the proposed group “affluent Guatemalans,” the BIA stated that “the shared characteristic of the group should generally be recognizable by others in the community”) (emphasis added). As Judge Posner stated when writing for the Seventh Circuit in Gatimi:
If you are a member of a group that has been targeted for assassination or torture or some other mode of persecution, you will take pains to avoid being socially visible; and to the extent that the members of the target group are successful in remaining invisible, they will not be “seen” by other people in the society “as a segment of the population.”
Here, the government contends that “social visibility” does not mean on-sight visibility. Rather, we are told that “social visibility” is a means to discern the necessary element of group perceptibility, i.e., the existence of a unifying characteristic that makes the members understood by others in society to constitute a social group or recognized as a discrete group in society. We have a hard time understanding why the government’s definition does not mean “on-sight visibility,” and we join the Court of Appeals for the Seventh Circuit in wondering “even-whether [the BIA] understands the difference.”
Valdiviezo-Galdamez,
We agree that a requirement of “on-sight” visibility would be inconsistent with previous BIA decisions and likely impermissible under the statute. However, we
Further, the statement in C-A- that “the very nature of the conduct at issue is such that it is generally out of the public view” should be understood in the context of societal understanding, not “on-sight” visibility. Id. at 960. It is true that informants against criminal cartels generally take pains to stay out of the public view. Those informants who are discovered, however, are socially visible under C-A-• “Recognizability or visibility is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.” Id. Thus, anti-cartel informants, who might not be recognizable on-sight as members of that group, would be socially visible — particularly to revenge-seeking cartel members — if their identity were discovered because they testified in court, as Henriquez-Rivas did here.
Subsequent BIA cases do not interpret C-A- as imposing an “on-sight” visibility requirement. See S-E-G-, 24 I. & N. Dec. at 587 (asking whether the proposed social group of Salvadoran youth who had resisted recruitment efforts from the MS-13 gang would be “perceived as a group” by society); E-A-G-, 24 I. & N. Dec. at 594 (considering whether society would recognize respondent, a Honduran youth, as having resisted gang recruitment after defining “social visibility” as “the extent to which members of a society perceive those with the characteristic in question as members of a social group”).
Our own case law following C-A- has similarly declined to impose an “on-sight” visibility requirement. Instead, we have required that the shared characteristic “ ‘generally be recognizable’ ” by other members of the community, or evidence
Absent a requirement of on-sight visibility, “social visibility” as detailed in C-A- is consistent with BIA precedent prior to CA-. It defines “social visibility” in terms of perception by a society, not ocular recognition. So construed, C-A- was merely a refinement of Acosta. So 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. See Marmolejo-Campos v. Holder,
Concluding that social visibility refers to “perception” rather than “on-sight” visibility does not fully clarify the requirement. Neither we nor the BIA has clearly specified whose perspectives are most indicative of society’s perception of a particular social group: the Petitioner herself? Her social circle? Her native country as a whole? The United States? The global community?
Looking to the text of the statute, in the context of persecution, we believe that the perception of the persecutors may matter the most. Under the INA, a petitioner’s belief that she has been persecuted does not alone prove persecution; rather, she must show persecution or a well-founded fear of future persecution on account of a protected ground. 8 U.S.C. § 1101(a)(42)(A). The petitioner is persecuted precisely because the persecutor recognizes the object of his persecution. Further, the petitioner’s awareness of her own group status is not a baseline requirement&emdash;for example, an infant may not be aware of race, sex, or religion. Society in general may also not be aware of a particular religious sect in a remote region. However, a group may be persecuted because of the persecutor’s perceptions of the existence of those groups. Cf. Sanchez-Trujillo,
We next consider the “particularity” requirement. Admittedly, both BIA and our own precedent have blended the “social visibility” and “particularity” analysis: “social visibility” has been determined based on perception, as discussed above, and “particularity” too has been based on society’s perception whether a group has deli-mitable boundaries. See, e.g., Ramos-Lopez v. Holder,
We will not go quite so far. 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. The ultimate question is whether a 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.” S-E-G-, 24 I. & N. Dec. at 584. If a persecutor does not actually rely on specific boundaries or definitions to identify the group, it may be more difficult to believe that a collection of individuals is in fact perceived as a group. Ultimately, the “particularity’ consideration is merely one factor as to whether a collection of individuals is considered to be a particular social group in practice.
We clarify the “social visibility” and “particularity criteria without reaching the ultimate question of whether the criteria themselves are valid. The BIA could find that Henriquez-Rivas’ proposed social group is cognizable under either the Acosta immutability standard or the newer standard that considers “social visibility” and “particularity.” Thus, we need not decide, in this case, at this time, whether we should align ourselves with the Third and Seventh Circuits and invalidate these requirements.
B.
We now turn to reviewing the BIA’s application of its particular social group precedent to the facts of this case. The BIA concluded that the proposed social group of people who testified against gang members “lacks the requisite ‘social visibility’ to be considered a particular social group within the meaning of the Act.” In so doing, the BIA did not fully explain its position but cited many of the cases discussed above, including Santos-Lemus v. Mukasey, Matter of E-A-G-, Matter of S-E-G-, and Matter of C-A-. From EA-G-, the BIA derived the principle that the evidence must “establish that members of society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group.”
In denying Henriquez-Rivas asylum because of a lack of “social visibility,” the BIA failed to follow its own precedent as stated in C-A- and its progeny.
Because the BIA erroneously assumed that the proposed social group was not cognizable under its precedent, it failed to consider significant evidence that Salvadoran society recognizes the unique vulnerability of people who testify against gang members in criminal proceedings, because gang members are likely to target these individuals as a group. See id. at 959 (considering whether the proposed group is “generally easily recognizable and understood by others to constitute [a] social group[]”). Notably, as Henriquez-Rivas cited in her briefing before the BIA as well as in her opening brief on petition for review, the Salvadoran legislature enacted a special witness protection law in 2006 to protect people who testify against violent criminal elements, such as MS, in Salvadoran court. Decreto No. 1029/2006, Ley Especial para la Protección de Víctimas y Testigos [“Special Law for Victim and Witness Protection”], (May 11, 2006).
Our prior cases denying asylum to those opposed to gangs are distinguishable. Several of our previous cases considered
It is not clear whether the BIA in this case held that Henriquez-Rivas’ proposed particular social group lacked “particularity.” The BIA merely stated, “defining the group as persons opposing gang members is too amorphous.” This was an incorrect statement of Henriquez-Rivas’ proposed social group, which referred to those who had testified against M-18 gang members in open court, and thus, “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.” S-E-G-, 24 I. & N. Dec. at 584. Membership in Henriquez-Rivas’ proposed group can be easily verified — and thus delimited — through court records documenting group members’ testimony. The IJ found Henriquez-Rivas’ testimony credible, and the government does not dispute that Henriquez-Rivas actually testified in court in El Salvador against members of the MS gang.
Our previous cases rejecting as a “particular social group” those acting as government informants are arguably in conflict with our holding today insofar as they require an additional element of shared birth, racial or ethnic origin, or some other innate aspect of homogeneity for the group to qualify as a “particular social group.” In Soriano v. Holder, petitioner contended that he had a well-founded fear of future persecution in the Philippines because he had acted as a police informant against a Filipino criminal gang while living in Los Angeles.
A person who identifies as a “government informant” can be anyone of any demographic description who passes information to government authorities for any purpose. There is no innate characteristic which is so fundamental to the identities or consciences of government informants that identifies them as a particular social group. The purported group, therefore, naturally manifests a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings.
Id. at 1166 (internal citation, quotation marks, and brackets omitted); see also Velaseo-Cervantes v. Holder,
These cases reflect the confusion between the “particularity” and “social visibility” requirements. The diversity of “lifestyles” and “origin” to which these cases refer did not concern the “particularity” requirement per se, nor are they relevant to our analysis, as we explain above. Accordingly, to the extent that Soriano and Velaseo-Cervantes make consider
Because we grant the petition on the basis that the BIA erred in applying its own precedents in deciding whether Hen-riquez-Rivas was a member of a particular social group, we need not reach the question whether the BIA erred when it failed to consider Henriquez-Rivas’ argument that she was persecuted on account of political opinion. Nor do we reach the issues of withholding of removal or protection under the Convention Against Torture.
The petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings.
Notes
. Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (noting that, unlike the taxi drivers in Acosta who would have been persecuted only if they continued being taxi drivers who would not cooperate with the persecutors, being a former member of the police was a part of respondent’s past, and was thus an "immutable characteristic, as it [was] one beyond the capacity of the respondent to change”).
. Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990).
. In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996).
. In re V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997) (en banc).
. Prior to Hernandez-Montiel, we used different criteria to determine particular social groups. In Sanchez-Trujillo v. INS,
. Registered homosexuals in Cuba would not necessarily be recognized as such walking down the street. See Toboso-Alfonso, 20 I. & N. Dec. at 822. Former members of the Salvadoran national police would similarly not be recognizable "on-sight.” See Fuentes, 19 I. & N. Dec. at 662.
. We emphasize that to render C-A-’s statements consistent with a proper understanding of "social visibility,” the requirement that an applicant’s conduct has “come to the attention of” his persecutors must not be construed to exclude all conduct that occurs "out • of the public view.” If an applicant can demonstrate as a factual matter that he reasonably fears persecution because some covert action that he has taken may "come to the attention of” his persecutors, then it is irrelevant whether the action would as a general matter not be discovered because of its covert nature.
.We also note that the government has taken the litigation position that "social visibility” does not require "that members of a particular social group must literally be visible to the naked eye.” Br. for Resp’t in Opp'n 12-13, Contreras-Martinez v. Holder, -U.S. -,
. In Santos-Lemus, we quoted a BIA decision for the proposition that the particularity requirement looks to "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.”
. See also C-A-, 23 I. & N. Dec. at 960 (denying particular social group status to informants working against the Cali drug cartel, the BIA stated that "[r]ecognizability or visibility is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.” (emphasis added)).
. In R-A-, the BIA held that the petitioner had not established a nexus between the persecution she suffered and membership in the particular social group: "Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.” 22 I. & N. Dec. at 925, 927. R-A- was later vacated by the Attorney General in anticipation of new rules regarding domestic violence and asylum law. In re R-A-, 22 I. & N. Dec. 906 (A.G. Jan. 19, 2001). However, no final rule was issued, and the case was remanded to the BIA. Nevertheless, litigants and other courts have relied heavily upon its analysis. See, e.g., Valdiviezo-Galdamez,
. In Soriano, we rejected petitioner’s proposed particular social group of government
. While we are aware that the BIA may refine or change its definition of social visibility, it must provide a reasoned explanation for doing so. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800,
. We by no means intend to suggest that the public nature of Henriquez-Rivas’ testimony is essential to her eligibility for asylum. Because Henriquez-Rivas did testify in open court, we need not address whether she would be eligible for asylum if the conduct for which she fears persecution had been less public — for instance, if she had testified behind a protective screen so as to conceal her identity.
. The law states, in pertinent part: "Considering: ... That the current Salvadoran reality evidences the necessity that victims, witnesses and others who are involved in ... judicial proceedings, as well as their families ... should be protected to avoid violations of their rights....” Decreto No. 1029/2006, Ley Especial para la Protección de Victimas y Testigos ["Special Law for Victim and Witness Protection”], (May 11, 2006), at p. 603, available at http://www.ute.gob.sv/cpp/index. php ? option=com_content&task=view&id= 193&Itemid=132. The decree provides for ordinary and extraordinary protection measures, Chapter III, Art. 10 and 11, which include changes of identity and residence, even to foreign countries. Id. at pp. 607-08.
Dissenting Opinion
dissenting:
In summarily reversing us just six years ago, the Supreme Court held that it’s the BIA, not we, who must decide whether a petitioner is a member of a particular social group for purposes of asylum. Gonzales v. Thomas,
1. Congress has given the Attorney General discretion to grant asylum to certain limited classes of aliens- — those who have a well-founded fear of persecution in their home countries “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). Of these, persecution on account of membership in a particular social group is by far the most amorphous. See Maj. op. at 1083; Stanley D. Radtke, Defining a Core Zone of Protection in Asylum Law, 10 J.L. & Soc. Challenges 22, 29 (2008). Race, nationality, religious affiliation and political opinion can usually be determined by objective evidence, but what constitutes a social group requires a judgment about shared norms and perceptions in the society where the individual is living.
The asylum statute uses the term “particular social group” but gives no clue as to what it means. There are no committee reports, hearing transcripts or floor statements that shed light on that obscure phrase. See Maryellen Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, 26 Cornell Int’l L.J. 505, 513-14 (1993). What we do know is that the language came from the 1951 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, by way of the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, which the United States ratified in 1968. See Sanchez-Trujillo v. INS,
Because of this indeterminacy in the drafting process, the United States, along with other developed countries, has had to struggle to give meaning to a term that has little pedigree of its own. The process has, of necessity, involved case-by-ease adjudication and called for periodic adjustment as our understanding of the term has evolved in light of experience.
What agglomeration of people a society recognizes as a group is seldom written down and must typically be deduced from inconclusive evidence as to how individuals sharing common characteristics are viewed by those around them. Take as an example a society we know something about — the United States. I’d guess most people consider the following to be identifiable social groups: Vietnam veterans, male homosexuals, college students, lawyers, Masons, cancer survivors, blind people, Cajuns, practitioners of Falun Gong and hippies. And the following groups of
This leads to several observations: First, it’s debatable whether some of the proposed groups should be on the first or second list. Crime victims may be too broad to define a social group, but what about victims of rape or domestic violence, or families of persons who were killed or maimed by drunk drivers? Second, the appropriate granularity of any group definition is subject to debate. Are Vietnam veterans a group on their own or are they merely part of the larger group of combat veterans? Do male homosexuals make up a separate social group or are they part of a larger social group that includes female homosexuals and transgendered persons? Third, many — perhaps most — people in some social groups may not identify themselves as part of any such group. Masons choose to be Masons, but not all homosexuals identify themselves by their sexual orientation, and some may wish to conceal their sexual identity. Nevertheless, if society sees homosexuals as a distinct social group, individuals with that sexual orientation will be treated as involuntary members, if and when their sexual orientation is discovered.
As these examples illustrate, determining whether someone is a member of a social group, even within our own society, is no mean task. The matter is further complicated when the question is whether another society, with a culture and language different from our own, considers some subset of its population to be a social group. The question is quite important, however, because any number of people sharing a characteristic could be considered a social group. The group may be as small as two and as large as a majority of the population, paving the way for huge numbers of people to obtain political asylum. Yet, Congress surely didn’t mean to open the immigration floodgates to everyone in the world who is oppressed. Indeed, the Guidelines to the U.N. Protocol state quite clearly that “the social group category was not meant to be a ‘catch all’ applicable to all persons fearing persecution.” In re C-A-, 23 I. & N. Dec. 951, 960 (BIA 2006) (quoting U.N. High Comm’r for Refugees, Guidelines on International Protection, supra).
The United States received 74,000 asylum applications last year, half again as many as any other industrialized nation. See U.N. High Comm’r for Refugees, Asylum Levels and Trends in Industrialized Countries 3 (2011), available at http:// www.unhcr.org/4e9beaal9.html. Confronted with the difficult and sensitive task of determining whether individuals seeking asylum are persecuted on the basis of membership in a large variety of proposed social groups,
Over the years, the BIA has worked diligently and thoughtfully to refine the definition of membership in a social group. Along the way, it’s announced a series of criteria and limitations, all designed to give the term “social group” a concrete and consistent meaning that doesn’t give a free pass into the United States to anyone and everyone who is persecuted in his home country. These criteria include the following:
• A past experience is an immutable characteristic because “it has already occurred and cannot be undone.” C-A-, 23 I. & N. Dec. at 958. But not every kind of “past experience that may be shared by others suffices to define a particular social group for asylum purposes.” Id.; In re S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008).
• The characteristic common to the proposed group must be such that the society in which it’s situated recognizes individuals having that characteristic as constituting a distinct social group. See C-A-, 23 I. & N. Dec. at 959-60; S-EG-, 24 I. & N. Dec. at 586. The BIA sometimes refers to this as the “social visibility” requirement. See C-A-, 23 I. & N. Dec. at 959.
• “[A] social group cannot be defined exclusively by the fact that its members have been subjected to harm, ... [but] this may be a relevant factor in considering the group’s visibility in society.” AM-E, 24 I. & N. Dec. at 74.
• It isn’t necessary to show a “voluntary associational relationship among the group members ... [nor] an element of cohesiveness or homogeneity among group members.” C-A-, 23 I. & N. Dec. at 956-57 (internal quotation marks omitted).
• “Whether a proposed group has a shared characteristic with the requisite ‘social visibility’ must be considered in the context of the country of concern and the persecution feared.” A-M-E, 24 I. & N. Dec. at 74. The BIA has “considered as a relevant factor the extent to which members of a society perceive those with the characteristic in question as members of a social group.” C-A-, 23 I. & N. Dec. at 957.
• The risk faced by the group in question must be specific to the group and not one shared by society at large, see A-M-E, 24 I. & N. Dec. at 75, or by anyone who stands in the way of the persecutors. See C-A-, 23 I. & N. Dec. at 960-61; SE-G-, 24 I. & N. Dec. at 587 (“However, such gangs have directed harm against anyone and everyone perceived to have
• “Membership in a purported social group requires that the group have particular and well-defined boundaries.... ” S-E-G-, 24 I. & N. Dec. at 582. “The essence of th[is] ‘particularity’ requirement ... 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.” Id. at 584.
• The persecution that petitioners seek to escape must be motivated by their membership in the group in question and not by factors that are “quite apart” from such membership. Id. at 585. The BIA explains the difference by giving this example:
Were a situation to develop in which former police officers were targeted for persecution because of the fact of having served as police officers, a former police officer could conceivably demonstrate persecution based upon membership in a particular social group of former police officers. On the other hand, if a former police officer were singled out for reprisal, not because of his status as a former police officer, but because of his role in disrupting particular criminal activity, he would not be considered, without more, to have been targeted as a member of a particular social group.
C-A- 23 I. & N. Dec. at 958-59.
These requirements can be summarized as follows: In order to establish eligibility for asylum based on persecution for membership in a social group, a petitioner must show that he’s part of a group that’s well-defined by a characteristic other than the fact that its members have been subjected to harm; is recognized within the society as a distinct group; is described with sufficient particularity so that it’s possible to determine with reasonable certainty who’s included in the group; and whose members are targeted for persecution because of their membership in the group, not on account of some other, perhaps closely associated, trait.
2. We approved the BIA’s approach in Ramos-Lopez v. Holder,
Judge Tashima’s well-reasoned opinion in Ramos-Lopez (unlike the majority today) starts with the framework set out by the Supreme Court in Thomas: “ ‘The matter requires determining the facts and deciding whether the facts as found fall within a statutory term.’ ” Id. at 859 (quoting Thomas,
Most other circuits have deferred to the BIA’s interpretation of particular social group. See Orellana-Monson v. Holder,
Two circuits have taken a contrary view. In an opinion that pays lip service to Thomas but, in fact, usurps the role of the BIA, the Seventh Circuit rejected the Board’s social visibility requirement. Gatimi v. Holder,
Women who have not yet undergone female genital mutilation in tribes that practice it do not look different from anyone else. A homosexual in a homophobic society will pass as heterosexual. If you are a member of a group that has been targeted for assassination or torture or some other mode of persecution, you will take pains to avoid being socially visible; and to the extent that the members of the target group are successful in remaining invisible, they will not be “seen” by other people in the society “as a segment of the population.”
Id. at 615.
This criticism is unfounded. As even the majority here recognizes, the BIA’s social visibility requirement doesn’t mean that the characteristics defining the group must be recognizable on sight. Maj. op. at 1087-89. The BIA has made it perfectly clear that the social visibility test is designed to determine whether the proposed group of which petitioner claims to be a member is perceived as a group by the society in question, not whether individual members of the group can be identified on sight. See C-A-, 23 I. & N. Dec. at 959-61. That’s why it’s called social visibility rather than just visibility.
The Seventh Circuit also criticized the BIA for inconsistency with certain cases it had decided some two decades earlier. Gatimi,
In Valdiviezo-Galdamez v. Attorney General of the United States,
The Tenth Circuit considered the criticisms leveled at the BIA by the Seventh Circuit and roundly rejected them in a lucid opinion by Judge Tymkovich. Rivera-Barrientos,
the particularity requirement flows quite naturally from the language of the statute, which, of course, specifically refers to membership in a ‘particular social group.’ [8 U.S.C.] § 1101(a)(42)(A) (emphasis added).... And as a matter of logic, it is reasonable to read the statute as limiting its recognition of ‘social groups’ to those that can be defined with some specificity — to encourage amorphous definitions would likely yield inconsistent, arbitrary, and over broad results.
Id. at 649; see also id. at 651-52 (expressly disagreeing with the Seventh Circuit’s suggestion that social visibility requires that “the relevant trait be visually or otherwise easily identified” and giving examples from past BIA decisions). Bravo to the Tenth!
3. Our circuit has given proper deference to the BIA’s social visibility and particularity requirement in Ramos-Lopez and numerous other cases. See, e.g., Donchev v. Mukasey,
This brings us to today’s opinion, which starts off well enough but then quickly and deeply falls into error. The majority first tackles the question of whether the social visibility requirement calls for ocular recognition or perception by society. Maj. op. at 1087-89. The opinion goes on for much longer than necessary but eventually reaches the obvious — and right — conclusion that social visibility refers to social perceptions, not to on-sight recognition. Id. Thankfully, my colleagues avoid the pitfall of Gatim% which they quote prominently, id. at 1087, but eventually forsake.
The panel then goes on to make some serious mistakes of its own. The first of these concerns who must perceive the petitioner as belonging to a particular social group. Maj. op. at 1089. Using circular reasoning, the opinion concludes that “the perception of the persecutors may matter the most.” Maj. op. at 1089. That’s three mistakes right there. See generally Cone, op. (McKeown, J.). First, it’s not our call; it’s the BIA’s. See id. If there’s any doubt whether the BIA has decided the issue, the most we can do is point out the problem and remand for the BIA to resolve the question in the first instance. See Ventura,
Second, the BIA has decided the question: “[W]e referred to the 2002 guidelines of the United Nations High Commissioner for Refugees, which endorse an approach in which an important factor is whether the members of the group are perceived as a group by society.” A-M-E, 24 I. & N. Dec. at 74 (internal quotation marks omitted) (emphasis added); see also Cone. op. (McKeown, J.). The majority’s determination that it’s the perception of the persecutor that matters is contrary to the approach of the BIA. This we may not do without first finding that the BIA’s interpretation is incompatible with the language of the statute, which of course it’s not.
But it gets worse. The majority vacates the BIA’s determination that Henriquez-Rivas failed to show that she was subjected to persecution on account of her membership in the group of people testifying against gang members because the proposed group lacks social visibility: “[P]eo-ple testifying against gang members is merely a shared experience and not a particular social group within the meaning of the Act.” Henriquez-Rivas, No. A098 660 718, at 1 (BIA May 1, 2009). The BIA also held that “defining the group as persons opposing gang members is too amorphous.” Id.
My colleagues vacate the BIA’s social visibility determination on the ground that it is, in their view, inconsistent with the BIA’s “own precedent as stated in C-A- and its progeny.” Maj. op. at 1091. According to the majority, “[t]his case clearly falls within the language in C-A- holding that those who testify against cartel members are socially visible: ‘[Vjisibility is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.’ ” Id. at 1092 (quoting C-A- 23 I. & N. Dec. at 960) (emphasis omitted). The lone phrase from C-A-, which is the fulcrum of the majority’s reasoning, simply will not bear the weight.
To begin with, the sentence describes a necessary condition for social visibility, but the BIA nowhere says it’s sufficient. CA- was one of the earliest cases where the BIA elucidated the social visibility requirement by considering the proposed group of non-criminal informants. In finding that the proposed group isn’t socially visible, the Board disposed of the case on the ground that the members of the group weren’t identifiable at all, and thus couldn’t be the targets of persecution. See C-A- 23 I. & N. Dec. at 960-61.
But that’s not all the BIA said in C-A-. On the same page where it used the language on which my colleagues rely, the BIA set forth a further ground for rejecting the asylum application:
The record in this case indicates that the Cali cartel and other drug cartels have directed harm against anyone and everyone perceived to have interfered with, or who might present a threat to, their criminal enterprises. In this sense, informants are not in a substantially different situation from anyone who has crossed the Cali cartel or who is perceived to be a threat to the cartel’s interests.
C-A-, 23 I. & N. Dec. at 960-61 (internal quotation marks omitted); see also Fatin v. INS,
When reviewing agency decisions for consistency, we aren’t allowed to cherry-pick stray sentences from the agency’s past opinions and ignore others. Nor may we insist that the agency stand by its rulings in perpetuity. An agency charged with administering an ambiguous statute is entitled to change its mind. See Fox Television,
Assuming that the BIA was at some point in the past bound by the stray sentence on which the majority relies, the agency has long since modified that position. In S-E-G-, for example, the BIA dealt with a proposed social group consisting of youths who resisted gang recruitment efforts. 24 I. & N. Dec. at 582. The gangs obviously knew who refused their recruitment efforts, and the fear of retaliation arose because of that knowledge. In that regard, the petitioners in S-E-G-were in precisely the same position as individuals who testified openly against gangs (like petitioner here). Yet the Board held that this wasn’t sufficient to meet the social visibility requirement: “[Yjouth who have been targeted for recruitment by, and resisted, criminal gangs may have a shared past experience, which, by definition, cannot be changed. However, this does not necessarily mean that the shared past experience suffices to define a particular social group for asylum purposes.” Id. at 584.
4. Having found fault with the BIA’s determination that petitioner’s proposed group lacks social visibility, the majority goes on to make findings of its own. This is wrong. We’ve been told time and again that we aren’t fact-finders; we’re reviewers. See Ventura,
Jumping head first into the fact-finding process, the majority makes a mess of it. According to the opinion, the BIA here
failed to consider significant evidence that Salvadoran society recognizes the unique vulnerability of people who testify against gang members in criminal proceedings, because gang members are likely to target these in*1104 dividuals as a group. Notably, as Henriquez-Rivas cited in her briefing before the BIA as well as in her opening brief on petition for review, the Salvadoran legislature enacted a special witness protection law in 2006 to protect people who testify against violent criminal elements, such as MS, in Salvadoran court. It is difficult to imagine better evidence that a society recognizes a particular class of individuals as uniquely vulnerable, because of their group perception by gang members, than that a special witness protection law has been tailored to its characteristics.
Maj. op. at 1092 (emphasis added) (internal citations omitted). But the BIA did explicitly consider and reject precisely this purported evidence: “We are unpersuaded by the respondent’s apparent attempt to equate El Salvador’s enactment of a witness protection law in that country to the definition of refugee under United States immigration law.” Henriquez-Rivas, No. A098 660 718, at 1-2.
Furthermore a class of individuals can be identified as uniquely vulnerable and given legal protection, yet not constitute a social group. We have laws recognizing the unique vulnerability of children, see, e.g., Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101 et seq., yet we don’t consider all children to constitute a particular social group. We have laws protecting individuals who are disabled— physically and mentally- — see, e.g., Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., yet we wouldn’t say that blind people, people in wheelchairs, those who are hearing-impaired and those who have Down syndrome or autism all make up a social group. We have laws giving special protection to victims of crime, such as the Victim and Witness Protection Act of 1982, Pub.L. No. 97-291, 96 Stat. 1248 (1982), but all victims of crime don’t make up a big social group. The list is endless.
This isn’t to say that legal protection never coincides with group status; the legislature may well pass laws that protect what’s otherwise recognized as a social group, such as veterans or school teachers. But whether this is the case is a question of fact. And, as my colleagues seem to have forgotten, we aren’t fact-finders. When the majority says “[i]t is difficult to imagine better evidence [of social visibility],” maj. op. at 1092 (emphasis added), it’s pretty much conceding that that’s what it’s doing — and doing it in direct contravention of the BIA’s own finding on the same issue. The only way we could vacate the BIA’s decision on this point is if we concluded that it’s “illogical, implausible, or without support in inferences that may be drawn from facts in the record.” Cf. United States v. Hinkson,
Can we honestly say that there is no support in the record for the BIA’s finding? Hardly. As the BIA has pointed out, violence against anyone and everyone who interferes with gangs is endemic in El Salvador. Those who testify against gang members, those who resist their recruitment, those who inform against them to the government, those who cross them in any way — they all get on the gangs’ enemies list and become the targets of violence, as do many others in society at large. That the government chooses to single out some targets of violence for special protection doesn’t imply that the society at large or the gangs themselves view them as a particular social group. The government may well have reasons independent of any group status for giving these individuals special protection. The reason here is obvious: The Salvadoran government has a strong interest in protecting the integrity of its criminal justice system by giving witnesses in criminal cases special protection. This is true in the United States as well: We have vari
While the majority may believe its ruling is narrow, the implications are actually vast. As pointed out earlier, witnesses against gang members are not in a materially different position from others who act in opposition to gangs. C-A-, 23 I. & N. Dec. at 960-61. The BIA has consistently adhered to this rationale, rejecting asylum applications in numerous cases. See, e.g., S-E-G-, 24 I. & N. Dec. at 586-87; A-M-E, 24 I. & N. Dec. at 74-75. Today’s ruling casts doubt on this entire body of caselaw and puts the BIA in the untenable position of applying materially different law to asylum applicants who claim to be victims of gang violence depending on whether their cases will be appealed to our circuit or to one of the circuits that have approved the BIA’s approach, such as the First, Second, Fourth, Fifth, Sixth, Eighth, Tenth and Eleventh. Today’s opinion will thus force precisely the kind of inconsistency and arbitrariness in the agency’s rulings that the majority now purports to correct.
This case should never have been taken en banc. The three-judge panel’s unpublished disposition says all that need be said in this case. We should’ve left well enough alone.
. At various times, the BIA has dealt with claims of persecution on the basis of the following claimed social groups: persons resistant to gang membership, see In re E-A-G-, 24 I. & N. Dec. 591 (BIA 2008), women opposed to arranged marriage, see In Re A-T-, 24 I. & N. Dec. 296 (BIA 2007), wealthy Guatemalans, see In re A-M-E & J-G-U-, 24 I. & N. Dec. 69 (BIA 2007), women intimately involved with men who believe in male domination, see In re R-A-, 22 I. & N. Dec. 906 (BIA 2001), tribe members, see In re Y-B-, 21 I. & N. Dec. 1136 (BIA 1998), Filipinos of mixed Filipino-Chinese ancestry, see In re V-T-S-, 21 I. & N. Dec. 792 (BIA 1997), former members of the Guatemalan military, see In re C-A-L-, 21 I. & N. Dec. 754 (BIA 1997), women fearing genital mutilation, see In re Kasinga, 21 I. & N. Dec. 357 (BIA 1996), Marehan subclan members in Somalia, see In re H-, 21 I. & N. Dec. 337 (BIA 1996), Haitians deported from the United States, see In re Y-G-, 20 I. & N. Dec. 794 (BIA 1994), homosexual men, see In re Toboso-Alfonso, 20
. Though it eschews Gatimi’s conclusion, the majority does cast doubt on our cases holding that the social visibility and particularity requirements are entitled to Chevron deference. After speaking approvingly about the Seventh and Third Circuit opinions, the majority drops a heavy hint that we may soon follow suit: "Thus, we need not decide, in this case, at this time, whether the 'social visibility’ and ‘particularity’ criteria merit Chevron deference.” Maj. op. at 1091. But we have decided that these requirements are entitled to Chevron deference. See Barrios v. Holder,
An en banc court can do many things, but it can't simply declare a question unsettled. If my colleagues wish to reconsider Ramos-Lopez, they’re free to do so. But they have no authority to declare the issue open when our circuit law has decided it. The majority’s provocative suggestion that we may, in a future case, decide to deny Chevron deference to the BIA’s social visibility and particularity requirements will cause trouble down the road, as lawyers and judges puzzle about whether today's ruling was meant to clear the way for bringing Ninth Circuit law into line with that of the Seventh and Third Circuits. It has not because it cannot.
. The majority also errs in reversing the BIA’s ruling as to particularity. Maj. op at 1093-94. The BIA held that "defining the group as persons opposing gang members is too amorphous.” Henriquez-Rivas, No. A098 660 718, at 1. The majority criticizes the BIA for misstating Henriquez-Rivas’s position: "This was an incorrect statement of Henriquez-Ri-vas’ proposed social group, which referred to those who had testified against M-18 gang members in open court.” Maj. op. at 1093. But the BIA was reviewing the immigration judge, who had found that Henriquez-Rivas was a member of a group consisting of “people testifying against or otherwise [opposing] gang members.” Henriquez-Rivas, No. A098 660 718, at 1 (quoting Oral Decision of the Immigration Judge at 1, In re Henriquez-Ri-vas, No. A 098 660 718 (May 7, 2007)). The BIA couldn’t just ignore that disjunctive finding. It properly held that the group, as found by the immigration judge, lacked particularity-
Concurrence Opinion
concurring:
I concur in the result and the opinion, except to the extent the majority counsels that the perception of the persecutor “may matter the most” in analyzing social visibility or claims that the persecutor’s view is “potentially dispositive” of the question. On this point, Chief Judge Kozinski has the better argument. See Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008) (describing “social visibility” as “the extent to which members of a society perceive those with the characteristic in question as members of a social group”) (emphasis added); In re A-M-E-, 241. & N. Dec. 69, 74 (BIA 2007) (noting that the 2002 guidelines of the United Nations High Commissioner for Refugees “endorse an approach in which an important factor is whether the members of the group are ‘perceived as a group by society ’ ”) (emphasis added). Consistent with using society’s perspective as a baseline, training materials for asylum officers — who make the first determination on eligibility for applicants affirmatively seeking asylum — instruct that the social visibility “requirement can be met by showing that members of the group possess a trait or traits that make the members recognizable or distinct in the society in question.”
Defining social visibility from the perspective of society better comports with the case law; perhaps just as importantly, it also makes common sense. As the Chief Judge points out, “[djefining a social group in terms of the perception of the persecutor risks finding that a group exists consisting of a persecutor’s enemies list.” See also Mendez-Barrera v. Holder,
. See USCIS, Asylum Officer Basic Training Course, Asylum Eligibility Part III: Nexus and the Five Protected Characteristics, 26 (Mar. 12, 2009), www.uscis.gov/USCIS/Humanitarian/ Refugees&Asylum/Asylum/AOBTCLesson Plans/Nexus-the-Five-Protected-Characteri stics-31augl0.pdf (emphasis added).