Henriquez–Rivas v. Holder

• Citation: 707 F.3d 1081
• Decision Date: 13 February 2013
• Docket Number: No. 09–71571.,09–71571.
• Parties: Rocio Brenda HENRIQUEZ–RIVAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

707 F.3d 1081

Rocio Brenda HENRIQUEZ–RIVAS, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–71571.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted En Banc March 20, 2012.

Filed Feb. 13, 2013.

Saad Ahmad (argued), Fremont, CA, for Petitioner.

Walter Manning Evans (argued), Jeffrey Lawrence Menkin, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., for Respondent.

Kannon K. Shanmugam (argued), Williams & Connolly LLP, Washington, D.C., for amicus curiae Center for Gender & Refugee Studies.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098–660–718.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, JAY S. BYBEE, CARLOS T. BEA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge BEA; Concurrence by Judge McKEOWN; Dissent by Chief Judge KOZINSKI.

OPINION

BEA, Circuit Judge:

Rocio 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.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.2010).

“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, 364 F.3d 1099, 1103 (9th Cir.2004) (internal quotation marks omitted).

The term “particular social group” is ambiguous. Donchev v. Mukasey, 553 F.3d 1206, 1215 (9th Cir.2009). The BIA first interpreted the term “particular social group” in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). In Acosta, the alien argued that he was a member of a particular social group comprising members of a taxi driver cooperative in El Salvador. 19 I. & N. Dec. at 232. The BIA defined a “particular social group” as follows:

[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 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; ¹ homosexuals in Cuba who were forced to register with the government; ² young female members of a tribe in Togo who had not undergone female genital mutilation and were opposed to the practice; ³ and Filipinos of mixed Filipino–Chinese ancestry.⁴

We adopted the Acosta definition of “particular social group” in Hernandez–Montiel v. INS, 225 F.3d 1084, 1092–93 (9th Cir.2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005) (en banc).⁵ In Hernandez–Montiel, we held that a particular social group “is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Id. at 1093 (emphasis in original). Applying that framework to the facts of Hernandez–Montiel, we held that male homosexuals with female sexual identities qualified as a particular social group because they shared an immutable characteristic “so fundamental to one's identity that a person should not be required to abandon [it].” Id. at 1093–94.

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 otherwisecome to the attention of cartel members.” Id.

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 society....” Id. at 587; see also Matter of E–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.” 542 F.3d 738, 745–46 (9th Cir.2008) (emphasis added). We similarly held in Ramos–Lopez v. Holder that Honduran men who resisted recruitment into the MS–13 were not “socially visible” because there was no evidence that they were “generally visible to society.” 563 F.3d 855, 862 (9th Cir.2009).

Most circuits have accepted the BIA's “social visibility” and “particularity” criteria. See, e.g., Gaitan v. Holder, 671 F.3d 678, 681–82 (8th Cir.2012); Rivera–Barrientos v. Holder, 666 F.3d 641, 649–52 (10th Cir.2012); Scatambuli v. Holder, 558 F.3d 53, 59–60 (1st Cir.2009). But the Third and Seventh Circuits have rejected “social visibility” as an unreasonable interpretation of the ambiguous statutory term. See Valdiviezo–Galdamez v. Att'y Gen., 663 F.3d 582, 606–07 (3d Cir.2011); Gatimi v. Holder, 578 F.3d...