The definition of Social Group has been evolving for a long time now. This undefined term in Immigration has evolved over the time, but now The Advocate General is narrowing the interpretation of the Social Group. The first victim became the “victims of domestic abuse”.
The definition of a “social group,” for asylum purposes (and withholding of removal purposes) is in flux because of circuit splits and changes in BIA precedent, but in our circuit it has been primed for explanation.
Asylum, a discretionary relief from removal, and withholding of removal, a mandatory ground of relief, both require, to varying degrees of proof, a showing of a fear of harm “on account of” one of the categories enumerated in the Immigration and Naturalization Act (“Act”) along with a government that is not able or willing to control the persecution. 8 U.S.C. §§ 1158(a), 1101(a)(42)(A); Lopez-Soto v. Ashcroft, 383 F.3d 228, 234 (4th Cir., 2004) . One such ground, that of the “social group”, which is not defined in the Act, has been defined by the executive branch and the Article III Courts. Matter of Acosta, 19 I&N Dec. 211, 233 (I & N, 1985).
In 1980 Congress modified the Act to provide asylum on various grounds: including that of persecution with a nexus to a “social group.” United States Refugee Act of 1980, Public Law 96-212, 96 Stat 102. The Board of Immigration Appeals (“BIA” or “Board”) took to defining the term “social group.” Matter of Acosta, 19 I&N Dec. 211, 233 (I & N, 1985). In Matter of Acosta, the Board made clear that, because a “social group,” was listed near other immutable characteristics in the Act, such as race or political opinion, the doctrine of ejusdem generis, mandated that to be a “social group”, the characteristic of a approved “social group” must also be immutable or one policy would not ask a person to change to avoid persecution.
After Matter of Acosta, the Board approved several social groups and also disapproved of others, based upon the definition it had given in Matter of Acosta. Valdiviezo-Galdamez v. Attorney Gen. of the United States, 663 F.3d 582, 595-96 (3rd Cir, 2011) (citing e.g., Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988) (former police officers of El Salvador); Matter of Toboso–Alfonso, 20 I. & N. Dec. 819 (BIA 1990) (homosexuals in Cuba); In re H-, 21 I. & N. Dec. 337 (BIA 1996) (familial sub-clan in Somalia); In re FauziyaKasinga, 21 I. & N. Dec. 357 (BIA 1996) (females in the Tchamba–Kunsunto Tribe not yet subjected to female genital manipulation)).
Later the Board, added at least two more requirements to meet the requirements under the act: “particularity” and “social visibility” or “social distinction.” See Matter of C-A-, 23 I&N Dec. 951, 951 & 959-61 (BIA 2006) (expanding criteria for “social group” and denying asylum to drug informants). Some circuits met the definition changes with approval. Barrientos v. Holder, 666 F.3d 641, 650 & 652 (10th Cir., 2012) (upholding both requirements);Tay–Chan v. Holder, 699 F.3d 107, 111-12 (1st Cir., 2012) (upholding “social visibility and tacitly upholding “particularity”); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2nd Cir., 2007) (upholding both requirements); Gaitan v. Holder, 671 F.3d 678, 681 (8th Cir., 2012); Umaña-Ramos v. Holder, 724 F.3d 667, 671 (6th Cir. 2013) (upholding both requirements); Orellana–Monson v. Holder, 685 F.3d 511, 520 (5th. Cir., 2012) (upholding both requirements); Castillo-Arias v. U.S. Atty. Gen., 446 F.3d 1190, 1198 (11th Cir., 2006) (upholding “social visibility and tacitly upholding both requirements).
Other circuits have met the changes with disapproval or only partial approval. Valdiviezo-Galdamez v. Att’y Gen. of U.S.,663 F.3d 582, 603-09 (3rd Cir. 2011) (disapproving of both requirements); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir., 2009) (disapproving of the “social visibility” requirement).
Finally, at least one circuit has declined to decide at all. Pirir-Boc v. Holder, Slip op. p 15, (9th Cir., 2014) (noting that the definition of “social group” is “in flux”).
Even those that disapproved recognized the need to afford the Board’s definition with the deference it is owed as an agency interpreting a statute it has been grated authority to interpret. See e.g. Valdiviezo-Galdamez,663 F.3d at 603-09; Gatimi, 578 F.3d at 615-16 (7th Cir., 2009) (citing Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)), See also INS v. Cardoza–Fonseca, 480 U.S. 421, 445–50 (1987) (applying Chevron deference to the Board of Immigration Appeals’ interpretations of statues.).
However, the circuits that disapproved have noted that they do not need to give deference when they find the Board’s new definitions incompatible with older Board definitions, and have therefore rejected the new requirements of “particularity” and “social visibility” as being incompatible with Acosta and the intent of the Act. See e.g. Valdiviezo-Galdamez,663 F.3d at 603-09; Gatimi, 578 F.3d at 615-16, See also Cardoza-Fonseca, 480 U.S. 421, 446 n. 30 (1987) (less deference owed to BIA when it contradicts long held positions). Other criticisms of have been that the new requirements do not fit with the intent of the international agreements on asylum, which the statute was meant to execute. See In re W-G-R 26 I&N Dec 208, 220 (BIA 2014) (acknowledging disparity between the guidelines used by the United Nations High Commissioner for Refugees in determining a “social group” under the international agreements and the BIA’s understanding of “social group” after Matter of C-A-).
Notably, as important in this case and to this Court, the fourth circuit has approved of the particularity requirement while expressly reserving on the “social visibility” requirement. Lizama v. Holder, 629 F.3d 440, 447 & FN 4 (4th Cir., 2011); Zelaya v. Holder, 668 F.3d 159, FN 4 (4th Cir., 2012).
However, even if this “social visibility” requirement is later adopted by the fourth circuit (or the Supreme Court), it is still not clear exactly what this social visibility requirement will mean. In Matter of C-A-, for example, when denying asylum based on a proposed social group of “drug informants” the Board emphasized the importance of ocular (or physical visibility) in defining “social visibility.” Matter of C-A-, 23 I&N Dec. at 960-61. Oddly however, when faced with a later gang case, the Board retreated and re-framed “social visibility” as “social distinction,” a matter of psycho-social visibility in the country at large rather than physical visibility. In re M-E-V-G 26 I&N Dec. 227, 246-47 (BIA 2014) (expressly invalidating ocular visibility and re-framing the idea as social “distinction.” Furthermore, this “social distinction” must now be a distinction from the society at large, not simply the persecutor’s perception. Id. at 243.
Of course, given the fourth circuit’s recent skepticism with the Board’s holdings on social groups, respondent takes the position that, at the very least, “social visibility” is not required in this circuit, and certainly not “visibility” as newly defined by the Board. See Crespin–valladares v. Holder, 632 F.3d 117, 125-26 (4th Cir., 2011); Cordova v. Holder, Slip Op. p. 12-16 (4th Cir., 2014); Martinez v. Holder,Slip op. p 21 and N. 4 (4th Cir. 2014). Given this tension, it is more likely than ever that “social groups” in the fourth circuit are primed for broadening.
- Gang related social groups in asylum/withholding of removal in the BIA and the Fourth Circuit show the fourth circuit’s positive attitude to gang related asylum claims is in tension with the Board’s attitude.
Since adding the “social viability” and “particularity” requirements to the definition of “social group” under the act, the Board (and the courts) has had several opportunities to further clarify those requirements, and to specifically apply them to gang based asylum claims.
Examples of claims based on gang related activity might include current gang members fearing violence from rival gangs, former gang members who fear persecution as retaliation for leaving a gang, family members of current or former gang members fearing violence from rival gangs, those who have refused gang recruitment, those who have become essential witnesses for prosecutions against gang related criminal activity and who fear retaliation, as well as family members of those potential witnesses.
The Boardhas held that people who are merely resistant to gang recruitment lack the necessary “social visibility” to be a cognizable “social group” under the Act as they were not, (under the record the Board had reviewing the case), perceived by society at large to be a distinct group. Matter of E-A-G-, 24 I&N Dec. 591, 594 (I & N, 2008). The Board similarly rejected those whose families had refused gang membership as failing the “particularity” and the “social visibility” requirements. Matter of S-E-G24 I&N Dec. 579, 585-88 (I & N, 2008); Matter of M-E-V-G, 26 I&N Dec. 227, 249-51 (2014). Finally, the Board has, through similar logic, rejected those who were prior gang members fearing retaliation as not being part of a social group. In re W-G-R-, 26 I&N Dec. 208, 221-23 (I & N, 2014).
Despite these holdings, the Fourth Circuit has distinguished the group of “family members of those who testify against rival gang members” from “those who merely testify against gang members.” Compare Zelaya v. Holder, 668 F.3d 159, 166 (4th Cir., 2012), (witnesses against gangs)with Crespin–valladares v. Holder, 632 F.3d 117, 125-26 (4th Cir., 2011) (family members of witnesses against gangs).Noting that the former category is largely more “socially visible” than the latter, and that groups based upon family ties have high levels of social visibility, the fourth circuit vacated a BIA denial of asylum based on a social group for those who are family members of people testifying against gang members. Crespin–valladares, 632 F.3d at 125-26. The Fourth Circuit also criticized the Board’s opinion that family members of witnesses against gang members are somehow not “particular”-citing precedent that family ties are highly “particular.” Id.
Similarly, when family members who have been part of rival gangs have been persecuted, the Fourth Circuit has indicated it may recognize the group of their family members as a “social group”, and vacated a BIA holding otherwise. Cordova v. Holder, Slip Op. p. 12-16 (4th Cir., 2014). Finally, in a recent case, the Fourth Circuit, while only expressly finding that prior gang members meet the Acosta “immutability” requirements-strongly hinted in dicta that the fourth circuit was still open to the “former gang member” social group. Martinez v. Holder, Slip op. p 21 and N. 4
Thus, at least where family members of those targeted by gangs are concerned, (and possibly as to actual former gang members as well), the fourth circuit has been not shy in overruling the BIA to allow asylum claims based on a “social group.”
The tension the Fourth Circuit has held with the BIA over gang based claims, especially over family based claims, shows that whatever the outcome of the definition war over “socail group” the Fourth Circuit will want gang based claims to win in many circumstances.
III. Respondent likely qualifies for asylum or withholding of removal.
Undersigned expects that the respondent will be highly credible, and that the Court will not doubt the conditions in Guatemala and the government’s inability to control the situation there. It is also expected that the Court will find respondents fear is due to threats from the gangs towards her daughter.
The factual predicate in this case therefore, sets up respondent for at least one social group tacitly approved by the fourth circuit: that of family members of those already the targets of gangs. Martinez v. Holder, Slip op. p 21 and N. 4. If there is testimony about her family witnessing violence, she is also likely to fit into the 4th Circuit approved group of family members of gang violence witnesses. Crespin–valladares, 632 F.3d at 125-26.
When it is time to expand the definition of the Social Group, the Advocate General has decided to narrow its scope.
TYSON’S CORNER, VIRGINIA
8229 Boone Blvd, Suite 210
Vienna, VA 22182
8020 New Hampshire Avenue #108
Langley Park, MD 20783