In re M-E-V-G-

• Decision Date: 07 February 2014
• Docket Number: Interim Decision #3795
• Citation: 26 I&N Dec. 227
• Parties: Matter of M-E-V-G-, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 227

Matter of M-E-V-G-, Respondent

Interim Decision #3795

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Decided February 7, 2014

(1) In order to clarify that the "social visibility" element required to establish a cognizable "particular social group" does not mean literal or "ocular" visibility, that element is renamed as "social distinction." Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- &J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on "membership in a particular social group" must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.

FOR RESPONDENT: Martin Duffy, Esquire; Ayodele Gansallo, Esquire, Philadelphia, Pennsylvania

FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Associate Legal Advisor

AMICI CURIAE: American Immigration Lawyers Association; ¹ National Immigrant Justice Center; ² United Nations High Commissioner for Refugees ³ and Williams & Connolly, LLP;⁴ William S. Boyd School of Law, University of Nevada, Las Vegas⁵

BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER and GREER, Board Members.

GUENDELSBERGER, Board Member:

This case is before us on remand from the United States Court of Appeals for the Third Circuit for further consideration of the respondent's applications for asylum and withholding of removal. The court declined toafford deference to our conclusion that a grant of asylum or withholding of removal under the "particular social group" ground of persecution requires the applicant to establish the elements of "particularity" and "social visibility." Upon further consideration of the record and the arguments presented by the parties and amici curiae, we will clarify our interpretation of the phrase "particular social group." ⁶ We adhere to our prior interpretations of the phrase but emphasize that literal or "ocular" visibility is not required, and we rename the "social visibility" element as "social distinction." The record will be remanded to the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

Prior decisions of the Board and Third Circuit have set forth the underlying facts of this case in detail. In short, the respondent claims that he suffered past persecution and has a well-founded fear of future persecution in his native Honduras because members of the Mara Salvatrucha gang beat him, kidnaped and assaulted him and his family while they were traveling in Guatemala, and threatened to kill him if he did not join the gang. In addition, the respondent testified that the gang members would shoot at him and throw rocks and spears at him about two to three times per week. The respondent asserts that he was persecuted "on account of his membership in a particular social group, namely Honduran youth who have been actively recruited by gangs but who have refused to join because they oppose the gangs."

The Immigration Judge issued a decision on June 15, 2005, denying the respondent's applications for asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, 198, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). We summarily affirmed the Immigration Judge on February 27, 2006. On September 7, 2007, the Third Circuit granted the respondent's petition for review and remanded the case for further consideration of his arguments regarding his membership in a particular social group.Valdiviezo-Galdamez v. Att'y Gen. of U.S. (""Valdiviezo-Galdamez I"), 502 F.3d 285 (3d Cir. 2007).

On remand, we issued a decision on October 22, 2008, which again denied the respondent's applications for asylum and withholding of removal. We held that the respondent did not establish past persecution "on account of a protected ground" and applied our intervening decisions in Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), and Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008), in concluding that the respondent did not show that his proposed particular social group possessed the required elements of "particularity" and "social visibility."

The case is now before us following a second remand from the Third Circuit. Valdiviezo-Galdamez v. Att'y Gen. of U.S. ("Valdiviezo-Galdamez II"), 663 F.3d 582 (3d Cir. 2011). The court found that our requirement that a particular social group must possess the elements of "particularity" and "social visibility" is inconsistent with prior Board decisions, that we have not announced a "principled reason" for our adoption of that inconsistent requirement, and that our interpretation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Valdiviezo-Galdamez II, 663 F.3d at 608. Nevertheless, the court advised that "an agency can change or adopt its policies" and recognized that the Board may add new requirements to, or even change, its definition of a "particular social group." Id. (quoting Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)) (internal quotation marks omitted).

II. ISSUE

The question before us is whether the respondent qualifies as a "refugee" as a result of his past mistreatment, and his fear of future persecution, at the hands of gangs in Honduras. Specifically, we address whether the respondent has established an asylum claim based on his membership in a particular social group.

III. PARTICULAR SOCIAL GROUP

A. Origins

An applicant for asylum has the burden of establishing that he or she is a refugee within the meaning of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2012). This requires the applicant to demonstrate that he or she suffered past persecution or has a well-founded fear of future persecution on account of "race, religion,nationality, membership in a particular social group, or political opinion." Id.; see also INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987) (recognizing that one of Congress' primary purposes in passing the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, was to implement the principles agreed to in the United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) ("Protocol"), as well as the United Nations Convention Relating to the Status of Refugees, adopted July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954), available at http://www.unhcr.org/3b66c2aa10.html ("Convention")).

The phrase "membership in a particular social group," which is not defined in the Act, the Convention, or the Protocol, is ambiguous and difficult to define. Matter of Acosta, 19 I&N Dec. 211, 232-33 (BIA 1985); see also, e.g., Valdiviezo-Galdamez II, 663 F.3d at 594 ("The concept is even more elusive because there is no clear evidence of legislative intent."); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993) ("Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.'").

Congress has assigned the Attorney General the primary responsibility of construing ambiguous provisions in the immigration laws, and this responsibility has been delegated to the Board. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); see also section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2012) (providing that the "determination and ruling by the Attorney General with respect to all questions of law shall be controlling"). The Board's reasonable construction of an ambiguous term in the Act, such as "membership in a particular social group," is entitled to deference. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 844.

We first interpreted the phrase "membership in a particular social group" in Matter of Acosta. We found the doctrine of "ejusdem generis" helpful in defining the phrase, which we held should be interpreted on the same order as the other grounds of persecution in the Act. Matter of Acosta, 19 I&N Dec. at 233-34. See generally CSX Transp., Inc. v. Alabama Dep't of Revenue, 131 S. Ct. 1101, 1113 (2011) (stating that the canon "ejusdem generis" literally means "of the same kind"). The phrase "persecution on account of membership in a particular social group" was interpreted to mean "persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutablecharacteristic." Matter of Acosta, 19 I&N Dec. at 233. The common characteristic that defines the group 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.

B. Evolution of the Board's Analysis of Social Group Claims

Matter of Acosta was decided based on whether a common immutable characteristic existed. Matter of Acosta, 19 I&N Dec. at 233. We rejected the applicant's claim that a Salvadoran cooperative organization of taxi drivers was a particular social group, because members could change jobs and working in their job of choice was not...