What Is A "Particular Social Group"?
If a person suffered harm because of her membership in a "particular social group," she may be granted asylum. INA § 208(b) (1) (B) (i).
What is or is not a "particular social group" has been confusing lawyers and adjudicators for decades. This article will discuss three recent cases.
"Women in El Salvador between the ages of 12 and 25 who resisted gang recruitment" is not a particular social group
The Tenth Circuit denied asylum to a woman from El Salvador, who refused to join the Mara Salvatrucha gang ("MS-13"). Rivera-Barrientos v. Holder, 658 F.3d 1222 (10th Cir. 2011). The gang drove her to a field, kissed her, and smashed her in the face with a beer bottle. Then, three of the gang members brutally raped her. She fled to her house, where she remained inside for several days. Gang members came to her house about five times, demanding to speak with her and repeating their intention to recruit her. The gang threatened to kill both her and her mother. After she fled her country, the gang came back to the house, looking for her, "multiple times."
The Immigration Judge found her to be credible, and then denied asylum. The BIA and the Tenth Circuit affirmed.
The young lady argued that she was attacked on account of her membership in this group: "women in El Salvador between the ages of 12 and 25 who resisted gang recruitment." The BIA denied asylum because such a group cannot be "defined with particularity," and because it is not "socially visible." Furthermore, the BIA found that the central reason for the attack was her refusal, not her membership in a group.
There are many "social groups" in the world; courts must give meaning to all of the language of a statute. Here, Congress used the word "particular." That word limits the phrase "social groups." Only social groups which can be defined with "some specificity" qualify. "Particular" means the group must have "particular and well-defined boundaries." Society must recognize the group as a "discrete class of persons."
The BIA found that "El Salvadoran women between the ages of 12 and 25 who have resisted gang recruitment" has not been described with sufficiently particularity. The Tenth Circuit disagreed with that conclusion, stating that "the specific trait of having resisted recruitment is not so vague." A class of young persons who have resisted a gang "can be a particularly defined trait."
Not socially visible
The Tenth Circuit, however, agreed with the BIA that such a group is not "socially visible." There are two necessary conditions, for a group to be socially visible: 1] the "citizens of the applicant's country would consider individuals with the pertinent trait to constitute a distinct social group;" and 2] "the applicant's community is capable of identifying an individual as belonging to the group."
Do the citizens of El Salvador consider young resisting women to be a distinct group?
No, because there is no showing that such a group is of concern to anyone in the country. Such a group does not suffer more negative attention than the general public. The gangs target everyone equally. The gangs do not perceive "this portion of the population as set apart."
Is "the applicant's community capable of identifying an individual as belonging to the group"?
No, because the young lady's membership is not "evident" and because information about her membership is not "publically accessible."
In Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009), the court rejected the social visibility test. We disagree. "If opposition to genital mutilation, kinship ties, and prior employment as a police officer are socially visible, social visibility cannot be read literally."
Applicant in the case at bar "has offered no evidence to suggest that Salvadoran society considers young women who have resisted gang recruitment to be a distinct social group."
Ordinary criminals have "incentives" and "interests." They want money, they want members. Anyone who disrupts or threatens these interests will be harmed by the criminals. Gang violence is widespread in El Salvador. Gangs harm anyone, "where doing so may promote the gang's interests." The fact of being harmed is not evidence that the victim was perceived to be a member of a particular social group.
"Former truckers who resisted FARC and who helped the government" might be a particular social group
The Seventh Circuit reversed the BIA, and suggested that a former trucker who resisted FARC in Colombia might deserve asylum. Escobar v. Holder, 657 F.3d 537 (7th Cir. 2011).
Mr. Escobar bought two trucks, to start a transport business. He was an active member of the Liberal Party, and often drove members to rallies and meetings. In March 1998, he drove some party members to and from a political meeting. After the meeting, he was stopped at a roadblock by the Revolutionary Armed Forces of Colombia (FARC). At gunpoint, he was told he would be killed if he did not transport their cargo. He did transport the cargo. Some months later, he was hijacked at gunpoint, and forced to transport more cargo.
He went into hiding, but FARC visited his former home and place of business, looking for him. FARC found and burned his trucks. Escobar then fled from his country. Escobar asserted that he was a member of this group: "truckers, who, because of their anti-FARC views and actions, have collaborated with law enforcement and refused to cooperate with FARC."
The BIA rejected this as a particular social group, since Escobar could easily stop being a trucker. Escobar, however, is "a former trucker who resisted FARC and helped the government…" [emphasis in original].
"No more than the rest of us, Escobar cannot change the past." Id. "Just as former employees of Colombia's Attorney General's office constituted a 'social group,'…former truckers who resisted FARC and collaborated with the authorities can be a group."
"Escobar falls into a group or class of people who have a special skill that FARC does not want to see used in the service of its enemies. It is impossible for him to change this or the fact that he formerly rebelled against FARC's commands. This would be so even if he were to return to Colombia as a coffee farmer or a teacher." Escobar has a combination of characteristics: skills as a trucker, support of the government, and opposition to FARC. The BIA did not confront this theory.
The BIA concluded that the "only" reason FARC targeted Escobar was for his trucking capabilities. But FARC burned those very trucks.
One might argue that FARC did not target Escobar because of his anti-FARC views. "Instead, it pursued him only because he refused to cooperate." However, there is evidence of record "that FARC targeted him because of a combination of his profession and his views, not because of a simple refusal to cooperate." We remand the case so that the BIA may reconsider its opinion.
"Honduran youth who resist gangs" might be a particular social group
The Third Circuit remanded a case involving a young man from Honduras, who refused to join the Mara Salvatrucha gang ("MS-13"). Valdiviezo-Galdamez v. Att'y Gen., __ F.3d___, 2011 WL 5345436 (3d Cir. 2011).
The MS-13 gang demanded that Mr. Valdiviezo join them. When he refused, the gang stole his money and jewelry, and hit him. Later, the gang shot at him, and threw rocks and spears at him. In Guatemala, the gang kidnapped and beat him.
He argued that he was a member of this particular social group: "Honduran youth who have been actively recruited by gangs but have refused to join because they oppose the gangs." The BIA rejected this argument in 2006; but the Third Circuit vacated and remanded in 2007.
On remand, the BIA again rejected the argument, finding that the proposed group lacked "particularity" because it was "too broad and inchoate." The BIA further found that the group lacked "social visibility" because persons who resist gangs were not a "recognizable group or segment of Honduran society."
The BIA also found that the risk of harm he feared "was actually an individualized gang reaction to his specific behavior." Id. at *4.
From 1985 to 2005, the BIA did not mention "social visibility"or"particularity."
The BIA stated in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) that voluntary members of a taxi cab cooperative did not constitute a particular social group because the common characteristic [being a taxi driver] was not "immutable." The drivers could avoid the harm simply by changing jobs.
"Former members of the national police of El Salvador" is a particular social group, because the alien's status as a former policeman is immutable. Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). Homosexuals who were forced to register in Cuba constitutes a particular social group, because once a person has so registered, that fact cannot be changed. Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990).
Young women of a particular tribe, who had not been subjected to FGM, and who were opposed to it, constituted a particular social group because the characteristics of being a young woman and being a member of a tribe were characteristics which cannot be changed. Also, having intact genitalia is a characteristic that is so fundamental to individual identity that a young woman should not be required to change it. In re Fauziya Kasinga, 21 I&N Dec. 357 (BIA 1996).
Beginning in 2006, the BIA added new concepts to its definition of particular social group.
In re C-A-, 23 I&N Dec. 951 (BIA 2006), involved a group of "former noncriminal drug informants working against the Cali cartel." The BIA held that this group lacked "social visibility" and also it lacked "particularity." The BIA applied its "social visibility" and "particularity" requirements to groups who resisted gang recruitment, in Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008).
Adding the requirement of "social visibility" is inconsistent with earlier BIA decisions; therefore, it is not entitled to deference.
Women opposed to FGM, homosexuals, and former members of the El Salvador National Police are not "socially visible." Id.at *18. If a member of any of these groups applied for asylum today, she would be denied. Id.[the court repeated this conclusion at page 21]
An agency is not free to adjudicate claims "inconsistently, or irrationally…[nor may an agency] generate erratic, irreconcilable interpretations of their governing statutes…." Id. The BIA has been inconsistent; therefore, the requirement of "social visibility" is unreasonable. Id.
Adopting a "particularity" requirement is unreasonable because it is inconsistent with many of the BIA's prior decisions.
There is no real difference between "social visibility" and "particularity." Id.at 22.
"Indeed, they appear to be different articulations of the same concept and the government's attempt to distinguish the two oscillates between confusion and obfuscation, while at times both confusing and obfuscating." Id. "Particularity" appears to be "little more than a reworked definition" of "social visibility." Id.
An agency may change its policies; however, it may do so only by "announcing a principled reason for its decision." So far, the BIA has not done so. Accordingly, we remand to the BIA for further proceedings. =
Comments of the author
1. How do we know if a description of a group is sufficiently "particular"?
In Rivera-Barrientos, the Tenth Circuit found that "El Salvadoran women between the ages of 12 and 25 who have resisted gang recruitment" was a group described with sufficient particularity, while the BIA opined to the contrary. The Tenth Circuit said that a class of young persons who have resisted a gang "can be a particularly defined trait." However, the court did not elucidate its reasoning for this conclusion.
The Escobar decision does not mention "particularity." The Valdiviezo court strongly suggested that the concept of "particularity" should be abolished.
2. Two issues often merge, and become muddled: 1] is a group a "particular social group," and, 2] if it is, was membership in that group at least one central reason for being harmed?
In Rivera-Barrientos, the court expended page after page on the subject of what is a particular social group, but only a few paragraphs on the reason for the harm.
In Escobar, the court set forth in great detail the harm that Mr. Escobar suffered, and intermingled comments about motive into its discussion of what is a particular social group. The court did not discuss "particularity" nor did it discuss "social visibility." The phrase "at least one central reason" is not found in the opinion.
In Valdiviezo, the court did not mention "at least one central reason."
In Ayala v. Holder, 640 F.3d 1095 (9th Cir. 2011), a former police officer was denied relief, even though he was a member of a cognizable particular social group of "former officers."
Herberth Ayala, a native of El Salvador, was a military officer who investigated drug crimes. After he was discharged, he was attacked and threatened by drug dealers he had personally arrested.
It is true that a group of "former police officers" may be a cognizable particular social group." 640 F.3d at 1097. Being a former bodyguard to a Presidential family is an "immutable characteristic." Id. However, Ayala did not show that he was persecuted on account of his membership in such a group. The evidence demonstrates that Ayala "was only shot at and threatened because, while an officer, he had arrested a particular drug dealer." Id.at 1098, emphasis supplied.)
3. A person can be a member of more than one social group.
The Third Circuit has recognized that a woman was a member of three different particular social groups: 1] women who dated police officers; 2] dental hygiene students; and 3] "women who escaped involuntary servitude after being abducted and confined." Gomez-Zuluaga v. Mukasey, 527 F.3d 330, 348 (3rd Cir. 2008). The court suggested that she might prevail on some, but not all, of these groups.
Ask your client if she is a member of more than one particular social group.
4. How do we know the motive of the bad guys?
An asylum applicant must show that "at least one central reason" for the harm was a protected ground. INA § 208(b) (1) (B) (i).
In Rivera-Barrientos, the court did not discuss whether the gang may have had multiple motives, and whether or not one motive may have been "central." The court stated that gang violence was widespread in El Salvador, and suggested that gangs do not care about any social groups.
The Escobar decision involved an applicant who applied for asylum before May 11, 2005. Therefore, the "at least one central reason" language did not apply to his case. Rather, it was Escobar's burden to show that FARC was motivated, "at least in part" by a protected ground.
The BIA found that "there was no evidence that FARC showed any interest in Escobar's political opinion- it just wanted his trucks at its disposal." [emphasis supplied]. The Tenth Circuit found such evidence easily, and suggested that Escobar's support of the government and opposition to FARC were very important to FARC.
The Valdiviezo court did not comment upon the finding of the BIA that the risk of harm that he feared "was actually an individualized gang reaction to his specific behavior."
5. Persecutors may have more than one motive.
In Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009), the applicant was denied relief. Ms. Parussimova was an ethnic Russian, who worked for an American company in the country of Kazakhstan. While walking alone on the street in Kazakhstan, she was attacked by men who called her a "Russian pig." The court ruled there were three possible reasons for the attack: 1] ethnicity; 2] association with an American company; and 3] vulnerability to sexual assault. She was denied asylum, because she could not prove that her ethnicity was "at least one central reason" for the attack.
A. Demonstrate that your client's group suffers more than other groups in the country. Find groups in the country which are ignored by the persecutor. B. Demonstrate that family members suffered. A large number of courts say that the family is a particular social group. C. Identify all possible motives of the persecutor; develop evidence about each; argue that most of the motives are tangential and unimportant. D. A person can be a member of more than one social group. Any person sitting in your office is a former member of a group in his country; he is also a person who has fled from his persecutor.
David L. Cleveland a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 28 different countries.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.