I last wrote about a case I thought would make a bigger splash than it did relating to voluntary departure. Today’s splashless big case is a case dealing with asylum, Henriquez-Rivas v. Holder, and in particular the term, “particular social group.” It is an en banc case in the Ninth Circuit published on February 13, 2013.
By way of background, a person seeking asylum in the United States must show that he or she fears persecution in his or her country on account of his or her race, religion, political opinion, nationality, or particular social group. INA § 101(a)(42). Cases often hinge on whether there is a “nexus” between the persecution and one or more of these five grounds. You may be in fear for your life in your home country, but unless your fear is based on one or more of these five grounds, you will not get asylum in the United States. Race, religion, and nationality, while not crystal clear in meaning, do not usually pose huge problems for asylum case adjudicators. Political opinion a little bit more difficultly. But the ground, particular social group, resists all attempts at an easy definition. Probably more trees have been killed as the Board of Immigration Appeals (BIA) and courts of appeals struggle with this term than any other, save “crimes of moral turpitude.”
The BIA and the circuit courts of appeal have worked at least since 1985 on a definition and still the phrase resists an easily appliable definition. A problem is the phrase is the ground of last resort for an asylum seeker. If you are in danger in your home country and it is (relatively) obvious the nexus is not race, religion, and nationality, you are going to have to hang your claim on either political opinion or particular social group. Lets say you are a perceived as a wealthy person and have been robbed repeatedly – for argument’s sake, by the same group of people and pretty savagely. You come to the United States and seek asylum. If you are of the same religion, racial stock, and national group as your oppressors, you are either going to have to claim persecution based on your political opinion – a person politically opposed to lawlessness or corruption, say, or particular social group – persons perceived as wealthy, say. Political opinion cases are easier to deny. In our example, the asylum seeker may find it hard to present proof that the persecutors were motivated by politics – did the victim advocate a political opinion – i.e., did he start an anti-crime crusade? Is he fighting a pro-robbery political movement? Does the government support violent street robberies? Did the persecutors indicate that they were taking his money as a way of stifling a political movement, or simply because they wanted the money? As the answers are likely, “No,” courts will likely reject this claim. However, how easily dismissible is the claim of being robbed all the time because of being in the social group of people perceived as rich?
Asylum protection for members of particular social groups was likely inspired by Soviet persecution of Kulaks, wealthy landowners in the Ukraine and Russia. The absence of a definition for particular social groups can be attributed to Soviet resistence to a definition that would implicate the Soviet state in widespread persecution of a prominent social group. It is indeed ironic that people perceived of being rich are uniformly denied asylum in the United States based on the theory of membership in a particular social group when it was persecution of the rich that prompted the inclusion of particular social group as as basis for asylum. Stalinism is a gift that keeps on giving.
Because our government resists giving asylum to crime victims from around the world or an infinite number of other scenarios where particular social group is arguably apt but very broad, the BIA and courts attempt to restrict the term “particular social group” – to make it more “particular.” Some refinements have included imposing elements of “social visibility” and “particularity.” The result, regrettably, is not a definition that makes understanding the term easier, but more words and phrases – social visibility and particularity – to kill trees over.
Nonetheless, despite the ambiguities, most courts of appeal were abiding with the BIA’s definitions and tolerant of apparent inconsistencies. The Ninth Circuit recently jumped ship, without a splash, in Henriquez-Rivas. In the case, Ms. Henriquez-Rivas testified against a gang member who killed her father in El Salvador. She asserted she is afraid to return to El Salvador because of gang retribution in El Salvador. Her claim is that she is of he social group of people who testified against or otherwise opposed gang members. The BIA rejected the claim based on its definition of social visibility.
The Ninth Circuit noted that the Third and Seventh Circuits have rejected the social visibility and particularity elements of a particular social group.The Henriquez-Rivas court rejected holdings of the BIA that on-sight recognition is necessary to constitute the social visibility aspect of particular social group. Further, the court faulted the BIA’s social visibility formulation for being unclear as to whether social visibility is to the petitioner, the petitioner’s social circle, the country as a whole, the United States, or the global community. The Henriquez-Rivas court suggested that the perception of the persecutors is what should matter most. Further, the court concluded that particularity is relevant in considering whether the group’s boundaries are so amorphous that, in practice, the persecutor does not consider it a group.
Is this case really a big deal? Don’t just take my word for it. These are the words of Chief Judge Kozinski in dissent in the case:
Today’s ruling casts doubt on this entire body of caselaw and puts the BIA in the untenable position of applying materially different law to asylum applicants who claim to be victims of gang violence depending on whether their cases will be appealed to our circuit or to one of the circuits that have approved the BIA’s approach, such as the First, Second, Fourth, Fifth, Sixth, Eighth, Tenth and Eleventh.Today’s opinion will thus force precisely the kind of inconsistency and arbitrariness in the agency’s rulings that the majority now purports to correct.
Sounds like a big case to me. I would have mentioned it if I was giving a lecture about the definition of particular social group. Posted July 21, 2013.