In re W-G-R-

• Decision Date: 07 February 2014
• Docket Number: Interim Decision #3794
• Citation: 26 I&N Dec. 208
• Parties: Matter of W-G-R-, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 208

Matter of W-G-R-, Respondent

Interim Decision #3794

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) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution "on account of his membership in that group.

(4) The respondent did not establish that "former members of the Mara 18 gang in El Salvador who have renounced their gang membership" constitute a "particular social group" or that there is a nexus between the harm he fears and his status as a former gang member.

FOR RESPONDENT: Alma L. David, Esquire, Seattle, Washington

FOR THE DEPARTMENT OF HOMELAND SECURITY: Marci L. Ellsworth, Senior Attorney

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

GRANT, Board Member:

In a decision dated January 14, 2010, an Immigration Judge pretermitted the respondent's application for asylum, denied his applications for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3) (2006), 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 theUnited States Apr. 18, 1988) ("Convention Against Torture"), and ordered him removed from the United States. The respondent has appealed from that decision.¹ The Department of Homeland Security has filed a brief in opposition to the appeal. The respondent's appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of El Salvador who was a member of the Mara 18 gang in that country. He testified before the Immigration Judge that he decided to leave the gang after being a member for less than a year. According to the respondent, members of his former gang confronted him after he left the gang, and he was shot in the leg during one of two attacks he suffered. He fled to the United States after he was targeted for retribution for leaving the gang. The respondent claimed that he feared persecution on account of his membership in a particular social group consisting of "former members of the Mara 18 gang in El Salvador who have renounced their gang membership." The Immigration Judge found the respondent credible, but he concluded that the respondent had not established that he was persecuted on account of his membership in a particular social group within the meaning of the Act.

II. ISSUE

The primary issue on appeal is whether former Mara 18 gang members in El Salvador who have renounced their gang membership constitute a particular social group.

III. PARTICULAR SOCIAL GROUP

A. Background

"The term 'particular social group' is ambiguous." Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc). Determining whether a specific group constitutes a particular social group under the Act is often a complicated task. While the analysis of a particular social group claim is based on the evidence presented and is often a fact-specific inquiry,the ultimate determination whether a particular social group has been established is a question of law.

We first attempted to define the contours of the term "particular social group" in Matter of Acosta, 19 I&N Dec. 211, 232 (BIA 1985). In that case, we concluded that any characteristic that defines a particular social group must be immutable, meaning it must be a characteristic "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.

At the time we decided Matter of Acosta, only 5 years had passed since enactment of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, and relatively few particular social group claims had been presented to the Board. As numerous and varied persecution claims were later asserted, we continued to refine the definition of a particular social group, including the concepts of particularity and social visibility. See Orellana-Monson v. Holder, 685 F.3d 511, 521 (5th Cir. 2012) (stating that the Board "may make adjustments to its definition of 'particular social group' and often does so in response to the changing claims of applicants").

We first enunciated the concepts of particularity and social visibility in Matter of C-A-, 23 I&N Dec. 951, 959-61 (BIA 2006), aff'd sub nom. Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190 (11th Cir. 2006), cert. denied, 549 U.S. 1115 (2007). See also Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 73-76 (BIA 2007), aff'd sub nom. Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007). They were subsequently defined further in two companion cases relating to gang-based claims of persecution. Matter of E-A-G-, 24 I&N Dec. 591, 595-96 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579, 582-88 (BIA 2008).

"Particularity" refers to whether the group is "sufficiently distinct" that it would constitute "a discrete class of persons." Matter of S-E-G-, 24 I&N Dec. at 584. The "social visibility" requirement mandates that "the shared characteristic of the group should generally be recognizable by others in the community." Id. at 586. Noting that the "concepts of 'particularity' and 'social visibility' give greater specificity to the definition of a social group," we held in Matter of S-E-G- that the definition of a particular social group "requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility." Id. at 582.

Our articulation of these requirements has been met with approval in the clear majority of the Federal courts of appeals. See Umana-Ramos v. Holder, 724 F.3d 667, 671 (6th Cir. 2013); Henriquez-Rivas v. Holder, 707 F.3d at 1087-91 (clarifying the criteria while reserving assessment of their validity); Orellana-Monson v. Holder, 685 F.3d at 521;Gaitan v. Holder, 671 F.3d 678, 681 (8th Cir. 2012); Zelaya v. Holder, 668 F.3d 159, 165-66 & n.4 (4th Cir. 2012) (deferring to our particularity requirement); Rivera-Barrientos v. Holder, 666 F.3d 641, 649-53 (10th Cir. 2012); Scatambuli v. Holder, 558 F.3d 53, 59-61 (1st Cir. 2009); Ucelo-Gomez v. Mukasey, 509 F.3d at 74; Castillo-Arias v. U.S. Att'y Gen., 446 F.3d at 1196-99. However, it has not been universally accepted. See Valdiviezo-Galdamez v. Att'y Gen. of U.S., 663 F.3d 582, 603-09 (3d Cir. 2011) (holding that our adoption of the particularity and social visibility requirements is inconsistent with our prior decisions and that we did not articulate a principled reason for the departure); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (rejecting the social visibility requirement); see also Cece v. Holder, 733 F.3d 662, 668-69 & n.1 (7th Cir. 2013) (en banc).

The primary source of disagreement with, or confusion about, our interpretation of the term "particular social group" relates to the social visibility requirement. See Umana-Ramos v. Holder, 724 F.3d at 672-73; Henriquez-Rivas v. Holder, 707 F.3d at 1087. Contrary to our intent, the term "social visibility" has led some to believe that literal, that is, "ocular" or "on-sight," visibility is always required for a particular social group to be cognizable under the Act. See Valdiviezo-Galdamez v. Att'y Gen. of U.S., 663 F.3d at 606.

The respondent urges us to reconsider our recent decisions regarding particularity and social visibility, arguing that they are inconsistent with our prior precedent and the standards of international refugee law. We disagree.

The well-known challenges in interpreting the term "particular social group" stem from its inherent ambiguity and the lack of supporting legislative history in international and domestic law. See Sanchez-Trujillo v. INS, 801 F.2d 1571, 1575-76 & n.5 (9th Cir. 1986); Matter of Acosta, 19 I&N Dec. at 232. Two principles of legislative interpretation have guided our analysis: (1) To the extent possible, the plain language of the term is applied, and (2) the term "particular social group" is construed consistently with the other protected grounds specified in the "refugee" definition in section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2012). See Matter of Acosta, 19 I&N Dec. at 233-34; see also United Nations Convention Relating to the Status of Refugees, art. 33, 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.

By defining the requirements of particularity and social visibility in Matter of C-A- and the cases that followed it, we did not depart from or abrogate the definition of a particular social group that was set forth in Matter of Acosta; nor did we adopt a new approach to defining particular social groups under the Act. See Henriquez-Rivas v. Holder, 707 F.3dat 1084 (describing our refinement of the definition of a particular social group). Instead, we clarified the definition of the term to give it more "concrete meaning through a process of case-by-case adjudication."...