547 U.S. 183 (2006), 05-552, Gonzales v. Thomas

Docket Nº:No. 05-552.
Citation:547 U.S. 183, 126 S.Ct. 1613, 164 L.Ed.2d 358
Party Name:Alberto R. GONZALES, Attorney General, v. Michelle THOMAS et al.
Case Date:April 17, 2006
Court:United States Supreme Court

Page 183

547 U.S. 183 (2006)

126 S.Ct. 1613, 164 L.Ed.2d 358

Alberto R. GONZALES, Attorney General,


Michelle THOMAS et al.

No. 05-552.

United States Supreme Court

April 17, 2006

On Petition for Writ of Certiorari to the United States Court of appeals for the Ninth Circuit


[126 S.Ct. 1613] PER CURIAM.

The Immigration and Nationality Act authorizes the Attorney General to grant an alien asylum if the alien cannot

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return to another country 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." §101(a)(42)(A), as added, §201, 94 Stat. 102,8 U.S.C. §1101(a)(42)(A) (emphasis added). The respondents, Michelle Thomas and her immediate family, applied for asylum. They checked boxes on the application form that indicated their claim rested upon fear of persecution in their native South Africa because of (1) their "political opinion[s]," and (2) their "membership in a particular social group." In proceedings before the Immigration Judge, they emphasized their fear of persecution because of their race (they are white) and their kinship with Michelle's father-in-law, "Boss Ronnie," a white South African who allegedly held racist views and mistreated black workers at the company at which he was a foreman. The Immigration Judge, focusing upon questions of race and political views, rejected [126 S.Ct. 1614] their claim. And the Board of Immigration Appeals (BIA), responding to the Thomases' primarily race-related arguments, summarily affirmed that decision.

On review, a Ninth Circuit panel held by a 2-to-1 vote that the Board had not adequately considered the Thomases' claim of persecution because of "membership in a particular social group, as relatives of Boss Ronnie." Thomas v. Ashcroft, 359 F.3d 1169, 1177 (2004). The Ninth Circuit took the matter en banc. The en banc court, overruling what it considered aberrant contrary Circuit precedent, unanimously held that in principle "a family may constitute a social group for the purposes of the refugee statutes." 409 F.3d 1177, 1187 (2005) (en banc) (emphasis added) (overruling, inter alia, Estrada-Posadas v. INS, 924 F.2d 916 (C.A.9 1991)). In so doing, the court relied on earlier BIA opinions holding that certain "kinship ties" fall within the statutory term. See id ., at 1180, 1184-1186.

The court then went on to hold, over the dissent of four judges, that the particular family at issue, namely " 'persons

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related to Boss Ronnie,' " fell within the scope of the statutory term "particular social group" and that the "Thomases were attacked and threatened because they belonged to the particular social group of 'persons related to Boss Ronnie' ...." 409 F. 3d, at 1189. The dissenting judges argued that the question "whether the Thomases are a 'particular social group' " should first be considered by the relevant administrative agency. Id ., at 1193 (opinion of Rymer, J.) (emphasis in original). And they said that the majority's contrary decision was inconsistent with this Court's holding in INS v. Orlando Ventura, 537 U.S. 12, 18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) .

The Solicitor General now asks us to grant certiorari to consider whether the Ninth Circuit "erred in holding, in the first instance and without prior resolution of the questions by the" relevant administrative agency, "that members of a family can and do constitute a 'particular social group' within the meaning of" the Act. Pet. for Cert. I. He argues that a court's role in an immigration case is typically one of " 'review, not of first view.' " Id ., at 29, 123 S.Ct. 353 (quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)). He adds that the decision clearly violates what this Court described in Ventura as the...

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