The Ninth Circuit published a “particular social group” case this week, another salvo in the particular social group definition dialectic of the BIA and the Ninth Circuit Court of Appeals. The term “particular social group” relates to one of the five grounds for granting asylum, which I blogged about most recently here and here. The most recent post was about two BIA cases, Matter of W-G-R- and Matter of M-E-V-G-, which addressed particular social group in the gang context. The BIA cases came after a Ninth Circuit case, Henriquez-Rivas v. Holder, on the same subject.
The latest in the back and forth is the Ninth Circuit’s latest lob back to the BIA on May 7, 2014, Pirir-Boc v. Holder. The legal issue is defining what a particular social group it. In its recent cases, the BIA announced two defining qualities for a particular social group, “social distinction” and “particularity.” Pirir-Boc digs into all the history and cases and definitions in great detail and great clarity making a re-hash by me unnecessary.
There are two important takes from the case. First, in an unusual bit of analysis of the current state of “particular social group” law, the Pirir-Boc court wrote:
Here, once again, we leave open the question of whether the BIA’s construction of “particular social group” is reasonable. First, we have not been asked to do so. Second, and more important, as is clear from W-G-R- and M-E-V-G-, the term is in flux, and it is premature to determine precisely how the rule will be implemented. After the BIA has on remand had the opportunity to apply the revised rule to this case, we may be in a better position to determine whether its revised construction of the term is reasonable.
Foolish would be the immigration lawyer who appears in immigration court with a complex social group asylum case (as opposed to, for example, a “political asylum case,” which for some reason is a term applied to all asylum cases) and concedes that Matter of W-G-R- and Matter of M-E-V-G- are the last word in particular social group cases. After all, the Ninth Circuit itself stated, “… the term is in flux, and it is premature to determine precisely how the rule will be implemented.”
The other take from the case comes from the BIA’s holding in Matter of W-G-R- and Matter of M-E-V-G- that a particular social group asylum applicant must establish through evidence to receive asylum what society in general perceives, considers, or recognizes as persons sharing the particular characteristic that defines it as a particular social group. The Ninth Circuit, in Henriquez-Rivas v. Holder, suggested that whether the persecutor perceives the person sharing a particular characteristic to be a group is what needs to be proved. In Pirir-Boc, an asylum seeker opposed recruitment to a gang in Guatemala. His social group, he asserted, was as “individuals taking concrete steps to oppose gang membership and gang authority.” The BIA determined that this was not a particular social group based on its decision in yet another case Matter of S-E-G-, that being an opponent of gang membership in El Salvador did not constitute a particular social group. The Pirir-Boc court remanded the case to the BIA, objecting to the BIA’s applying its holding about social distinction (preciously, social visibility) in El Salvador to a social distinction case involving Guatemala. The Pirir-Boc court wrote:
To be consistent with its own precedent, the BIA may not reject a group solely because it had previously found a similar group in a different society to lack social distinction or particularity, especially where, as here, it is presented with evidence showing that the proposed group may in fact be recognized by the relevant society.
The Pirir-Boc court also took great pains to point out that it was reserving judgment on the BIA’s holding that social distinction applied to the perception of society in general as opposed to the Ninth Circuit’s preferred perception of the persecutor. One can see the outlines of the Ninth Circuit’s objections to the BIA’s “society in general” formulation. First, it requires a sophisticated analysis of the perceptions of a society in general, which can be very difficult thing for anyone to prove. Suppose a person seeks social group asylum because of persecution he experienced while a member of a small tribe in a remote country. How, pray tell, can any alien prove what the perception of a small, remote tribe is? How, pray tell, can a person prove what the perception of a society in general is? Think of the differences in perception between an avid Fox News viewer and an avid MSNBC viewer or the differences in perception between acolytes of Ted Cruz and Elizabeth Warren. Which is the true perception of society?
Further, any sophisticated anthropological conclusions about a particular place on Monday could change by Wednesday based on events on Tuesday. Think of how Americans in general and Bostonians in particular changed their perceptions about public safety, Muslim students, Chechens, Dagestanis, and pressure cookers in a few short days. Think about how American society’s perceptions of homosexual marriage and marijuana use changed in the last five years. How can such things be known or measured in a society in general . The perception of a persecutor, on the other hand, is easier, but by no means easy, to prove by why the persecutor did what he did from what he wrote and said and the context in which he did what he it.
The Pirir-Boc court gave a strong indication that it believed that the alien in that case made out an asylum claim based on a “perception of the persecutor” standard. It could well be that ultimately the Ninth Circuit will hold that it is unreasonable to require an ex-gang member, a gang resistor, a battered spouse or any other social group to show how society in general perceives of them. For those favoring a more expansive social group definition, there is reason to hope in Pirir-Boc. Published May 11, 2014.