Pirir-Boc v. Holder, No. 09-73671 (9th Cir. 2014)
Annotate this CasePetitioner sought review of the BIA's order vacating the IJ's grant of asylum based on his well-founded fear of persecution as a member of a particular social group. The BIA concluded that petitioner's purported social group, individuals taking concrete steps to oppose gang membership and gang authority, lacked the requisite particularity and social visibility. The court then issued an en banc decision, Henriquez-Rivas v. Holder, holding that witnesses who testify against gang members may be cognizable as a particular social group for the purposes of asylum. The BIA then issued two published decisions clarifying its interpretation of the phrase "particular social group": Matter of W-G-R-, and Matter of M-E-V-G-. The court concluded that, in this instance, the BIA did not perform the required evidence-based inquiry as to whether the relevant society recognizes petitioner's proposed social group. The BIA failed to consider how Guatemalan society views the proposed group, and did not consider the society-specific evidence submitted by petitioner. Because it was not clear to the court from the record whether the evidence presented by petitioner was sufficient to meet the revised standard in W-G-R- and M-E-V-G-, the court remanded the petition to the BIA to consider petitioner's asylum claim in light of those decisions. Because petitioner's claims for withholding of deportation was denied solely on the basis of his failure to satisfy the burden required for asylum, that claim was also remanded. The court advised the BIA to consider the petition in light of Henriquez-Rivas, which addressed a group comparable to petitioner's proposed group and found it to be potentially cognizable. The court remanded petitioner's Convention Against Torture (CAT) claim to the BIA for reconsideration. Accordingly, the court granted the petition for review and remanded for further consideration.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture, and remanded for further consideration in light of Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (2013) (en banc), Matter of W-G-R-, 26 I. & N. Dec. 208 (2014), and Matter of M-E-V-G-, 26 I. & N. Dec. 227 (2014). Petitioner asserted a fear of persecution by gangs in Guatemala on account of his membership in a particular social group characterized as individuals “taking concrete steps to oppose gang membership and gang authority.” The panel first held that the Board’s recent decisions in Matter of W-G-R and Matter of M-E-V-G did not affect the construction of social group set forth by the en banc court in Henriquez- Rivas, with the qualification that the persecutors’ perception is not itself enough to make a group socially distinct, and persecutory conduct alone cannot define the group, rather, the persecutor’s perspective is one factor among others to be considered in determining a group’s social visibility. The panel noted that the critical issue in each of the new Board decisions is whether there is evidence to support social recognition of the proposed group, and the panel explained that to be consistent with its own precedent, the Board may not reject a group solely because it previously found a similar group in a different society to lack social distinction or particularity. Because the Board in this case did not perform the required evidence-based inquiry as to whether Guatemalan society recognizes petitioner’s proposed social group, the panel remanded to the Board for reconsideration in light of Henriquez-Rivas, Matter of W-G-R and Matter of M- E-V-G. The panel explicitly did not decide whether the Board’s requirements of “social distinction” and “particularity” constitute a reasonable interpretation of the term “particular social group.” The panel remanded petitioner’s CAT claim for the Board to provide a reasoned explanation of the basis for its decision.
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