Temu v. Holder, Jr., No. 13-1192 (4th Cir. 2014)

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Justia Opinion Summary

Petitioner, a Tanzanian national who suffers from severe bipolar disorder, petitioned for review of the BIA's denial of his application for asylum. Petitioner argued that he faced severe persecution because of his membership in the social group of individuals with bipolar disorder who exhibit erratic behavior. The court vacated the BIA's social visibility finding because it rests on legal error; the BIA also committed legal error in concluding that petitioner's group lacked particularity; and petitioner's proposed group is immutable. Accordingly, the court granted the petition for review, vacated the BIA's order, and remanded for further consideration.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1192 TUMAINI GEOFREY TEMU, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: October 29, 2013 Decided: January 16, 2014 Before KING, GREGORY, and AGEE, Circuit Judges. Petition for review granted, order vacated, and case remanded for further consideration consistent with this published opinion. Judge Gregory wrote the majority opinion, in which Judge King joined. Judge Agee wrote a dissenting opinion. ARGUED: Katie Bukrinsky, Thomas Joseph Tynan, MCDERMOTT, WILL & EMERY, LLP, Washington, D.C., for Petitioner. Woei-Tyng Daniel Shieh, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Paul M. Thompson, Steven Hannes, MCDERMOTT, WILL & EMERY LLP, Washington, D.C.; Stephen Dekovich, CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, Washington, D.C., for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Francis W. Fraser, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. GREGORY, Circuit Judge: Tumaini Temu is a Tanzanian severe bipolar disorder. national who suffers from In his home country, Mr. Temu was tortured by nurses and prison guards because of his illness. After entering the United States, he applied for asylum, arguing that he was persecuted because of his membership in a particular social group. The Board of Immigration Appeals ( BIA ) denied his application, finding that Mr. Temu was not a member of a social group under the Immigration and Nationality Act ( INA ), and even if he was, Mr. Temu did not show that he was persecuted because of membership in this group. Because we agree with Mr. Temu on errors, that we the grant BIA s Mr. opinion Temu s rests petition for factual review, and legal vacate the BIA s order, and remand for further proceedings consistent with this opinion. I. The facts presented below are based on Mr. Temu s testimony, as well as testimony from two expert witnesses who discussed individuals Mr. with Temu s mental diagnosis illness and face the in conditions Tanzania. that The IJ credited the testimony of all three witnesses, and neither the BIA nor the government dispute any of the facts presented. 2 Mr. Temu s troubles began during his final year at the University of Dar es Salaam, when his mother died in a car accident. This spurred a mental breakdown that forced Mr. Temu to leave school, and he experienced a series of similar episodes that were later diagnosed as manifestations of bipolar disorder. During his manic episodes, Mr. Temu believes he has superhuman powers. He is visibly erratic and often walks into busy intersections to direct traffic because he thinks he has the ability to attention prevent of car accidents. Tanzanian officials This who behavior took him caught to the Muhimbili Hospital in Dar es Salaam, Tanzania, in 2003. Mr. Temu s admission to Muhimbili Hospital kicked off years in asylums and prisons during which Mr. Temu suffered violent physical abuse. testified that shameful. In At his asylum Tanzanians Tanzanian hearing, consider culture, an mental severe expert illness mental witness to illness be with visibly erratic behavior is seen as a manifestation of demonic possession. Tanzanians even have a label for the group, referring to those with visibly severe mental illness as mwenda wazimu, which means demon-possessed. The expert witness testified that even medical professionals in Tanzania believe that severe mental illness accompanied by erratic behavior is caused by demonic possession. Laymen and doctors alike believe that demonic possession is contagious. 3 For this reason, even though friends and family visited Mr. Temu during his first Temu with hospitalization, they deserted him within months. The nurses at Muhimbili violence and abuse. Hospital treated Mr. Nurses tied Mr. Temu s hands and feet for five to seven hours a day, four days per week. When Mr. Temu s condition worsened, his treatment became more inhumane, as he was bound and beaten with leather straps for eight hours per day, five or six days per week. prison stints, and the abuse Hospital stints turned into continued. Prison guards beat Mr. Temu with a club about his elbows and feet four days per week. The beatings were so severe that he could not walk. The record is unequivocal about what motivated the nurses and guards behavior. Throughout all his hospitalizations, the nurses referred to Mr. Temu as mwenda wazimu. The record also shows that while binding Mr. Temu and beating him with leather straps, the nurses said on multiple occasions, this is how we treat people who are mentally ill like you. J.A. 135. In prison, the guards also referred to Mr. Temu as mwenda wazimu. All prisoners were beaten, but Mr. Temu received worse beatings. However, other prisoners who also suffered from severe mental illness were beaten as much as Mr. Temu. Upon coming to the United States, Mr. Temu applied for asylum, withholding of removal, and relief under the Convention Against Torture ( CAT ). 8 4 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. § 208.16. Mr. Temu argued that under 8 U.S.C. § 1101(a)(42), he faced severe persecution because of his membership in the social group of individuals disorder who exhibit erratic behavior. with bipolar The immigration judge ( IJ ) denied Mr. Temu s asylum and withholding claims. In a finding adopted by the BIA, the IJ concluded that Mr. Temu s proposed group lacks the elements of immutability, particularity and social visibility necessary social group under the INA. to qualify as a particular In addition, both the IJ and BIA concluded that even accepting Mr. Temu s proposed group, he did not show that he was persecuted because of his membership in this group. However, the IJ granted Mr. Temu CAT relief. In doing so, the IJ and BIA found that Mr. Temu was tortured by nurses and prison guards because he was mentally ill. Mr. arguing Temu that filed it a timely committed withholding of removal. appeal error in of the denying BIA s him decision, asylum and We have jurisdiction to hear his case under 8 U.S.C. § 1252. II. Individuals qualify for asylum if they were persecuted on account of . . . membership in 5 a particular social group. 8 U.S.C. § 1101(a)(42)(A). 1 First, we must analyze This appeal raises two questions. whether Mr. Temu s proposed group of individuals with bipolar disorder who exhibit erratic behavior qualifies as a particular social group. Second, we ask whether Mr. Temu was persecuted because of membership in his proposed group. Under Chevron, we give deference to the BIA s interpretation of the phrase particular social group. See Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010) (citing Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984)). However, in reviewing whether a group meets the BIA s definition of particular social group, we overturn a denial of asylum if it is manifestly discretion. contrary to the law and an abuse of 8 U.S.C. § 1252(b)(4)(D); see Zelaya v. Holder, 668 F.3d 159, 165 (4th Cir. 2012); Crespin-Valladares v. Holder, 632 F.3d findings 117, unless BIA s position. 124 126 no (4th rational Cir. 2011). factfinder We could uphold agree factual with the Crespin-Valladares, 632 F.3d at 124. 1 Because Mr. Temu was granted CAT relief, his right to remain in the United States is not in dispute. However, by granting Mr. Temu CAT relief but not asylum, the BIA placed him in an unusual legal status. Zuh v. Mukasey, 547 F.3d 504, 508 (4th Cir. 2008). Without asylum, Mr. Temu is not allowed to become a lawful permanent resident, nor is he allowed to work without yearly authorization. Id. For these reasons, we have expressed hesitation in placing immigrants in this unusual legal status, which essentially amounts to immigration limbo. Id. 6 III. We first consider the BIA s conclusion that Mr. Temu was not persecuted because of membership in his proposed group. Because this is a factual finding, our task is not to decide how we would rule in the first instance. Rather, we must uphold the BIA s finding unless no rational factfinder could reach the same conclusion. See Crespin-Valladares, 632 F.3d at 124. In spite of this stringent standard of review, we are compelled to vacate because the BIA s finding on nexus contains two logical contradictions that no rational factfinder could hold. First, it is impossible to square the BIA s conclusion with the undisputed facts of the case. The BIA credited Mr. Temu s testimony in its entirety, J.A. 151, and he testified not only that nurses beat and bound him, but also that they explicitly told him that [t]his is how we treat people who are mentally ill like you. J.A. 135. Mr. Temu testified that in prison, the guards beat all prisoners, but Mr. Temu was singled out for worse beatings, and other prisoners with mental illness were beaten as much as Mr. Temu. J.A. 137. Throughout his time in prisons and hospitals, the nurses and guards referred to him as mwenda wazimu. J.A. 135 37. factfinder simultaneously could We fail to see how a rational credit these facts and also conclude that Mr. Temu was not persecuted because of his mental illness and its manifestations. 7 It is difficult to imagine evidence that is more persuasive and unequivocal than a persecutor directly telling a victim, [t]his is how we treat mentally ill people like you. Second, logical the BIA s loggerheads. J.A. 135. nexus The finding BIA and adopted CAT the finding IJ s are finding at that there is no nexus between the respondent s mistreatment and his defined particular social group, which is defined in part by bipolar disorder. J.A. 74. That is, even accepting Mr. Temu s proposed group, the BIA concluded that his beatings were due to his erratic behavior, not his bipolar disorder per se. Mere pages later, however, the IJ granted CAT relief, finding that Mr. Temu was singled out for more frequent beatings because he was mentally ill. J.A. 156. 2 We struggle to see how a rational factfinder could conclude both that Mr. Temu was not persecuted because of his membership in the group of individuals with bipolar disorder who exhibit erratic behavior, and also that he was singled out for beatings because of his mental illness. It might be possible to reconcile these conflicting findings, but 2 We note that this finding was unnecessary to a grant of CAT relief, which only requires that an individual establish that it is more likely than not that he would be tortured in his home country. 8 C.F.R. § 208.16(c)(2). The BIA found that Mr. Temu is likely to be tortured upon return to Tanzania, and then it went out of its way to find that this torture would occur because of his mental illness. Thus, a grant of CAT relief and a denial of asylum need not contradict one another, but in this case, the BIA ensured that they did. 8 it would demand logical acrobatics, and the BIA makes no attempt to explain how it can believe that Mr. Temu was not persecuted because of his bipolar disorder but was tortured because he was mentally ill. We are mindful that reviewing courts should not substitute their own judgment for the BIA s in areas where the BIA is entrusted with instance. the power to adjudicate See Zuh, 547 F.3d at 504. mere difference in judgment. claims in the first This is not a case of a When the very core of an opinion is internally contradictory and advances diametrically opposed conclusions within irrationality. paragraphs, this is the very essence of Because the BIA s nexus finding collapses under the weight of its logical defects, we are compelled to vacate the BIA s finding. IV. We next consider the BIA s conclusion that Mr. Temu s proposed group does not qualify as a particular social group under 8 U.S.C. § 1101(a)(42)(A). has formulated a three-part particular social group. (BIA July 30, 2008). Through its case law, the BIA test for what constitutes a See In re S-E-G-, 24 I & N Dec. 579 First, individuals in the group must share a common, immutable characteristic . . . that members of the group either cannot change, or should not be required to 9 change. Id. omitted). which at 582 83 (internal citation and quotation In addition, the group must have social visibility, means the group should others in the community. generally Id. at 586. be recognizable by Finally, the group must be defined with particularity, which means the group must have concrete, identifiable boundaries that allow an distinguish members of a group from non-members. observer to Id. at 584. We must uphold the BIA s conclusion that Mr. Temu s group does not qualify as a particular social group unless it is manifestly contrary to the law and an abuse of discretion. Zelaya, 668 F.3d at 165. Because the BIA s opinion rests on legal error, we must reverse. It is unclear from the BIA s opinion whether it misapplied its own standard or applied a new standard without explanation, but in either case, legal analysis is manifestly contrary to the law. the BIA s Further, the BIA s opinion rests on factual error. A. We first consider the BIA s social visibility Social visibility does not mean ocular visibility: analysis. a group can qualify as a social group even if one cannot identify members of the group by sight. See, e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087 88 (9th Cir. 2013); Rivera-Barrientos v. Holder, 666 F.3d 641, 652 (10th Cir. 2012). Rather, social visibility speaks to whether a group is in fact recognized as a group. 10 See In re C-A-, 23 I. & N. Dec. 951, 959 (BIA 2006) (defining social visibility as whether a group constitute a social group). is understood by others to For example, in the United States, Vietnam veterans, . . . cancer survivors, blind people, Cajuns, practitioners of Falun Gong and hippies would likely be identified as social groups, whereas second-born children and haters of broccoli would not. 1096 97 (Kozinski, J., Henriquez-Rivas, 707 F.3d at dissenting). Thus, many groups have qualified as socially visible under BIA case law, even though their members are not visibly identifiable. See In re C-A-, 23 I. & N. Dec. at 959 (citing groups defined by kinship ties, prior employment, and genital mutilation). Mr. Temu s group appears to have a strong case for social visibility, standard. but The the BIA BIA never found that applied a while permissible Tanzanian legal society unquestionably targets individuals who exhibit erratic behavior for serious forms of mistreatment, this mistreatment is not limited to those who have a diagnosis of bipolar disorder. J.A. 153. person For example, the IJ noted that a visibly intoxicated might mistreatment. exhibit Id. erratic behavior and get targeted for On its face, it might appear that the IJ s opinion conflates the nexus requirement with social visibility, but in fact, the IJ s argument is much more subtle. The IJ s argument is that a lack of nexus is evidence of a lack of social 11 visibility. victims Thus, if persecutors indiscriminately, this not torture only a wide suggests swath of lack of a nexus, but it also suggests that the persecutors did not even consider any one victim s particular social group. turn, suggests a lack of social visibility. persecutors used erratic behavior as an This, in In sum, because the overbroad proxy for identifying victims, the persecutors did not view Mr. Temu s proposed group as a group in the first place. This conclusion does not show that Mr. Temu s group lacks social visibility: visibility. it shows that Mr. Temu s group lacks 20/20 The record is clear that Tanzanians view those with severe, chronic mental illness who exhibit erratic behavior as a group, since these individuals hospitals and prisons and wazimu. J.A. 137, 145. are are singled specifically out for abuse labeled in mwenda The nurses in this case explicitly said that this is how we treat people who are mentally ill like you. J.A. 135 (emphasis added). The fact that Tanzanians are overbroad in assigning this label to individuals does not show that social visibility is lacking. Though the persecution can be poorly aimed in theory, Tanzanians still appear to view the mwenda wazimu as visibility requires. Another a group, and that is all that social See Henriquez-Rivas, 707 F.3d at 1089. formulation of the further support to this point. social visibility test lends Circuit courts and the BIA have 12 argued that a group is socially visible if it can show that it is singled out for worse treatment than other groups. For example, the BIA rejected a group of non-criminal informants as lacking social visibility because informants are not in a substantially different situation from anyone who has crossed [the persecutors] or who is perceived to be a threat to the [persecutors ] interests. In re C-A-, 23 I. & N. Dec. at 960 61; see also In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 75 (BIA 2007); Ramos-Lopez v. Holder, 563 F.3d 855, 861 (9th Cir. 2009). In this case, Mr. Temu meets that test easily. The undisputed facts show that even though all prisoners were abused, Mr. Temu was singled out for worse abuse, with the exception of other prisoners with mental illness, who received the same increased abuse as Mr. Temu. This formulation of social visibility also illustrates the BIA s legal misstep. population Evidence that persecutors target an entire indiscriminately visibility. Id. particular social irrelevant. can be evidence of no social In that situation, the fact that members of a group get caught in the same net is The BIA extended this reasoning to conclude that any time a persecutor s net is too large, social visibility must be lacking. The folly of this demonstrated with a hypothetical. government decides to massacre 13 legal conclusion can be Imagine that an anti-Semitic any Jewish citizens. Now, imagine that in putting its policy into practice, the government collects a list of surnames of individuals who are known to be Jewish and then kills anyone with the same surname. Jews and Gentiles alike might be murdered, but this does not change the fact that Jews have social visibility as a group. Meanwhile, under the BIA s reasoning, the fact that persecutors might lump non-group members with group members is, by itself, enough evidence to find a lack of social visibility. Similarly, an analogy to a group that qualifies as a particular social group is helpful in illustrating why the BIA s analysis in this case is impermissible. There is no doubt under BIA or federal case law that kinship ties can serve as the basis for a particular social group. The BIA has identified kinship ties as a paradigmatic example of a particular social group. See Crespin-Valladares, 632 F.3d at 124 25 (citing In re C-A-, 23 I. & N. at 959; In re H-, 21 I. & N. Dec. 337, 342 (BIA 1996)). the This Court and every circuit court to have considered question have reached the same conclusion. Valladares, 632 F.3d at 125 (collecting case law). CrespinYet, under the BIA s reasoning in this case, if persecutors were using a distinctive family trait like curly red hair to identify and persecute individuals, then family ties would not qualify as a particular social group, since persecution would not be limited to those who are in the group. 14 J.A. 153. These examples illustrate why the BIA s application of its social visibility test is legally erroneous in this case. Requiring what amounts to 20/20 visibility, rather than social visibility, would lead to absurd conclusions that flout the case law of this Court, other circuit courts, and the BIA itself. There is no mechanical way to separate haters of broccoli from Vietnam veterans, Henriquez-Rivas, 707 F.3d at 1096 97, but one highly relevant factor is if the applicant s group is singled out for greater persecution than the population as a whole. In re C-A-, 23 I. & N. Dec. at 960 61. Similarly, evidence that a proposed group has a specific label in a society is highly relevant. A group cannot be defined solely by the fact of its persecution, Gatimi v. Holder, 578 F.3d 611, 616 (7th Cir. 2009), so evidence that members of a society have a label for a proposed group helps suggest that the group has a common thread outside of its victimhood, assuming of course that the label is not something like persecution victims. In sum, we vacate the BIA s social visibility finding because it rests on legal error. B. The Mr. Temu s erred BIA also group because it commits lacks broke legal error particularity. down Mr. in concluding Specifically, Temu s proposed the group that BIA into pieces and rejected each piece, rather than analyzing his group 15 as a whole. standard Once again, the BIA applied an impermissible legal because it rejected groups that Mr. Temu never proposed. A social group must have identifiable boundaries to meet the BIA s affluent particularity Guatemalans element. fails For example, because the the group group changes dramatically based on who defines it. See In re A-M-E-, 24 I. & N. Dec. at 76. Affluent might include the wealthiest Guatemalans, or it might include the wealthiest 20%. 1% of Therefore, this group lacks boundaries that are fixed enough to qualify as a particular social group. In this case, the BIA found no particularity because bipolar disorder is too broad and erratic behavior is too fuzzy. First, bipolar disorder covers a wide range of severity. At its least severe, the disorder can be so mild as to be outwardly undetectable. Therefore, the disorder covers too spectrum of behavior to have identifiable boundaries. broad a The other component of Mr. Temu s proposed group is erratic behavior, but this, too, lacks particularity. The definition of erratic behavior changes based on who defines it, and it is difficult to put precise, identifiable boundaries on what constitutes erratic behavior. Because each part of Mr. Temu s proposed group lacks particularity, the BIA concluded fails. 16 that the group as a whole The BIA s opinion commits legal error by splitting Mr. Temu s group in two and rejecting each part, rather than considering it as a whole. 125. See Crespin-Valladares, 632 F.3d at The BIA is correct that the label of mental illness can cover a broad range of severity. though we do not decide that On its own, it is possible the group of individuals with bipolar disorder lacks particularity because of its breadth, but that is not Mr. Temu s proposed group. Rather, Mr. Temu limits his group to those individuals with bipolar disorder who exhibit outwardly erratic behavior. It may well be that mental illness lacks particular boundaries, since the label covers a huge swath of illness Mr. Temu s that group ranges does not from life-ending suffer from the to same innocuous. shortcoming, because it is limited to a specific mental illness so severe that individuals are visibly, identifiably disturbed. Similarly, particularity. subjective. the BIA Erratic We doubt rejects behavior that erratic is behavior difficult individuals who to as lacking define exhibit and erratic behavior would qualify as a particular social group, but again, Mr. Temu proposed no such group. Rather, Mr. Temu s group is limited to individuals who exhibit erratic behavior and suffer from bipolar disorder. Unlike erratic behavior, the term bipolar disorder has well-defined, identifiable characteristics. See generally American Psychiatric Association, Diagnostic and 17 Statistical Manual of Mental Disorders (5th Ed., 2013); World Health Organization, International Statistical Classification of Diseases and Related Health Problems V(F30) (F39) (10th ed., 2010). The BIA faulted Mr. Temu s group because it lacks an adequate benchmark, J.A. 4, but that is precisely what the DSM-V supplies with regard to the other component of Mr. Temu s group. J.A. 4. Thus, erratic behavior has unclear boundaries that the other component of Mr. Temu s group supplies. In turn, bipolar disorder covers a broad spectrum of behavior that is sharply limited by the requirement of erratic behavior. In essence, the BIA committed legal error because it missed the forest for the trees. group might not While each component of Mr. Temu s satisfy the particularity requirement individually, the BIA must consider Mr. Temu s definition as a whole. legal See Crespin-Valladares, 632 F.3d at 125 ( [The BIA s error] flowed from the fact that, as the Government concedes, the BIA s removal order rejected a group different from that which the [applicants] proposed ). For example, we have recently found that the group consisting of family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial group. witnesses qualifies Id. at 120 121, 125 26. Crespin-Valladares Prosecutorial might witnesses not might 18 as a particular social Each component of the group in have particular reach too broad boundaries. a swath of individuals; those who actively fuzzy a label for a group. oppose gangs might be too Our case law is clear, however, that the group as a whole qualifies. In this case, the BIA took issue with the component parts of Mr. Temu s group, but it never reached the stage of assessing the particularity of Mr. Temu s group as a whole. Instead, it considered and rejected two different groups that were based on pieces of Mr. Temu s group. Thus, the BIA s particularity analysis was based on legal error. The INA requires that an individual be persecuted because of membership in a particular social group. § 1101(a)(42). 8 U.S.C. Nothing in the statute requires that if a group is defined by a collection of traits, that each individual trait must meet all the criteria for a particular social group. Time and again, case law from this Court, other circuits, and the BIA has accepted social groups that, as part of their definitions, contain components that might not meet the BIA s legal standards. See Crespin-Valladares, 632 F.3d at 120 21 (accepting the group of family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses ); Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005) (accepting the group of educated, landowning class of cattle farmers ); In re C-A-, 23 I. & N. at 960 (citing favorably the group of young women of a particular tribe who were opposed to female genital 19 mutilation as a particular social group) (citing In re Kasinga, 21 I. & N. Dec. 357, 365 66 (BIA 1996)). Notably, the BIA itself has accepted individuals with bipolar disorder as a particular social group in the past, albeit in cases that, like this one, were unpublished. Daniel Francisco Lopez-Sanchez, 2010 Immig. Rptr. In re LEXIS (BIA 2010); In re -A-, (BIA May 31, 2007) (slip op.). 7882 In fact, after oral arguments in this case, the BIA issued a decision accepting the particular social group of individuals in Ghana with severe mental illness, specifically bipolar disorder, who are indigent and lack family support. 2013) (slip op.). In re --, (BIA Nov. 15, These cases illustrate that in making asylum determinations, the BIA must consider an individual s proposed group as a whole. misapplied standard its that Once again, it is unclear whether the BIA own legal involves standard piecemeal or advanced analysis. a new Either BIA s opinion is manifestly contrary to the law. legal way, the Crespin- Valladares, 632 F.3d at 126. C. Particular immutability, social and Mr. this final element. on factual error. for bipolar bipolar Temu s must also proposed be characterized group easily by satisfies The BIA s conclusion to the contrary rests The BIA opinion finds that there is no cure disorder, disorder groups is J.A. 154, immutable. 20 so there However, is the no BIA doubt that found no immutability because Mr. Temu s controlled with medication. Id. erratic behavior can be However, in the same opinion, the BIA also adopts the finding that there is no consistent access to the medications the respondent needs in Tanzania, and that because his family has abandoned Mr. Temu, he will not be able to obtain what medications are available. J.A. 146. Once again, the BIA s opinion advances two factual findings that are impossible to reconcile without violating fundamental rules of logic. According to the BIA, Mr. Temu s disorder will never be cured and will only worsen. J.A. 146. He can only control his behavior with medication, but he will not have access to this medication in Tanzania. The inescapable conclusion from this finding is that if he is returned to Tanzania, Mr. Temu will not be able to control his behavior. In sum, Mr. Temu s membership in his proposed group is not something he has the power to change. The Seventh BIA s Circuit position and by has been the BIA explicitly itself. rejected In by Kholyavskiy the v. Mukasey, the Seventh Circuit considered an asylum claim based in part on the applicant s mental illness. (7th Cir. 2008). 540 F.3d 555, 572 74 The BIA found no immutability because even if the disease is incurable, the individual s behavior could be controlled through medication medication that the applicant would not have access to if returned to his home country. 21 The Seventh Circuit concluded that the BIA s immutability argument, which is identical to the one presented here, had no factual basis. Id. at 573. Further, the BIA itself has found that severe mental illness is immutable in two unpublished opinions, explicitly ruling that bipolar disorder [is] a chronic psychiatric condition subject to treatment but not cure, and thus it [is] an immutable characteristic. In re -A-, (BIA May 31, 2007) (slip op.); In re --, (BIA Nov. 15, 2013) (slip op.) (finding regardless immutability of because bipolar medication). These illness cases is reach permanent the conclusion that is compelled by the facts of this case: same when an individual suffers from an incurable mental illness, it is of no relevance that somewhere in the world, there exists medication that can help him control the illness. If he cannot access the medication, his behavior is as effectively immutable as if the medication did not exist. disorder will never change. Further, the underlying bipolar While it can be managed, this does not mean that it can be cured. These facts compel the finding that Mr. Temu s group membership is immutable. 22 V. For the foregoing reasons, we grant the petition for review, vacate the BIA s order affirming the IJ s decision, and remand for further consideration consistent with this opinion. PETITION FOR REVIEW GRANTED, ORDER VACATED, AND CASE REMANDED 23 AGEE, Circuit Judge, dissenting: Because I find the majority opinion errs in holding that the Board of reviewing Appeals the interpreted Immigration Immigration and Temu s application for ( Board ) Nationality asylum impermissibly Act and removal under the INA, I respectfully dissent. ( INA ) in withholding of Specifically, I conclude that the Board did not err as a matter of law in its determination that Temu s proposed social group lacked the necessary characteristic of particularity. I. As the majority describes, the facts are not in dispute and the immigration judge ( IJ ) found the evidence Temu presented including his own testimony about his treatment in Tanzania to be credible. 2002, Temu The record demonstrates that, beginning in 2001 or began displaying erratic behavior and was both hospitalized and jailed following episodes where he would walk onto a road and attempt to direct traffic. During his hospitalizations and imprisonment, he was tied up and beaten. The nurses and doctors indicated that they believed Temu was mentally ill and referred to him by the term mwenda wazimu, which roughly means demon-possessed or deranged. 24 (A.R. 55, 136. 1) Upon Temu s release, his family increasingly rejected him as their efforts to rid him of his evil spirit failed. (A.R. 56, 137.) While lawfully in the United States on a temporary visa, Temu was taken to the hospital after police observed him standing in the middle of a street attempting to direct traffic. Over time and after observation, medical professionals diagnosed Temu with bipolar disorder. Temu s visitor s visa expired in 2006, remained in can employed but he nevertheless unlawfully. Although he be the United and States function independently while on medication, Temu has suffered relapses when he does not take his medications. On two occasions during such relapses, Temu was detained in psychiatric facilities after police observed him in the middle of a street attempting to control traffic. In 2010, the Department of Homeland Security filed a notice to appear against Temu charging him with eligibility for removal based on overstaying his visitor s visa without authorization. He asserted eligibility for asylum and withholding of removal under the INA based on his membership in a particular social group, which he identified as 1 schizophrenic and bipolar Citations to the adopted administrative record filed with this Court are denoted by A.R. 25 individuals in Tanzania who exhibit outwardly erratic behavior. 2 (A.R. 72, 153.) The IJ concluded that Temu satisfied the requirements for filing a late application for relief, and also determined that he satisfied the Against Torture. criteria for relief under the Convention As to Temu s other claims, the IJ concluded that Temu was ineligible for asylum or withholding of removal under the INA because he failed to demonstrate[] that the harm he suffered was inflicted on account of his membership in a cognizable particular social group as required by law. 72, 153.) (A.R. She held that Temu s proposed group lacked the three characteristics for a particular social group that the agency has determined the INA and social visibility. requires: particularity, immutability, Alternatively, the IJ concluded that Temu failed to demonstrate a nexus between his past persecution and his membership in the proposed social group. The Board adopted the IJ s findings and conclusions, and dismissed Temu s appeal, agreeing that Temu s proposed group did not satisfy the requirements for a particular social group. 2 The alternate diagnosis of schizophrenia is no longer part of Temu s proposed social group. 26 II. The Court must uphold the denial of Temu s application for asylum unless the denial is manifestly contrary to the law and an abuse of discretion. 8 U.S.C. § 1252(b)(4)(D). Whether a proposed group constitutes a particular social group under the INA is a question of law that the Court reviews de novo. Lin v. Mukasey, doing, 517 F.3d 685, 691 (4th Cir. 2008). In however, the Court accords Chevron 3 deference reasonable interpretation of the INA. so to the Board s Id. at 691-92. Where, as here, the Board adopts the IJ s decision and includes its own reasons for affirming, the Court reviews both decisions. Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). To establish eligibility for the discretionary relief of asylum, Temu had the burden of showing that he has a wellfounded fear of persecution on account of . . . membership in a particular social group . . . . Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006) (citing 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(a). establish eligibility Temu faces a higher burden of proof to for withholding of removal he must demonstrate that it is more likely than not that [his] life or freedom 3 would Chevron be v. threatened Nat l Res. . . . because Defense (1984). 27 of Counsel, [his] 467 . U.S. . . 837 membership in a particular social group . . . . Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009) (citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2)); see also Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). The INA does not define particular social group. The IJ and Board rely on prior Board opinions that interpreted this phrase to mean a group that (1) share[s] a common, immutable characteristic other than the fact that they are targeted for persecution, (2) that [has] particular and well-defined boundaries, and (3) that possess[es] a recognized level of social visibility. 4 (A.R. 68.) 4 On appeal, Temu challenges the Board s use of this threepart test in addition to its application of it, asserting that requiring social visibility is a marked departure from the Board s long-standing approach to defining a particular social group and that this Court should not afford this criteria Chevron deference. The Attorney General responds that Temu has waived appellate review of the Board s use of the social visibility criteria because he failed to raise this issue in his appeal to the Board and thus has not exhaust his administrative remedies, as required by the INA. The majority opinion does not address this issue and proceeds instead directly to the Board s application of the social visibility criteria. I would expressly hold that the Court lacks jurisdiction to consider this aspect of Temu s claim. The INA expressly requires exhaustion of administrative remedies, 8 U.S.C. § 1252(d)(1), and as such there is no futility exception to this requirement and it must be strictly enforced. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). And although this Court alone can resolve the question of Chevron deference, the Board could have considered anew whether its use of the three-part criteria was an appropriate interpretation of the INA and cured its purported lack of an (Continued) 28 Temu challenges the IJ and Board s application of the three-part analysis of his proposed group and its conclusion that it was not a cognizable particular social group under the INA. As noted, the IJ and Board concluded that Temu s proposed group of bipolar individuals in Tanzania who exhibit outwardly erratic behavior lacked all three characteristics necessary for an alien to prove his or her particular social group status: immutability, particularity, and social visibility. I conclude that the Board s decision can be upheld with respect to the particularity requirement, and it is therefore unnecessary to proceed further to deny Temu s petition for review. See Zelaya v. Holder, 668 F.3d 159, 167 (4th Cir. 2012) (affirming the Board s decision to deny asylum based on conclusion that the proposed group lacks particularity without discussing the remaining characteristics) As its title suggests, a particular social group must have particular and well-defined boundaries, id. at 166, such that it is not too amorphous . . . to create a benchmark for determining group membership, Matter of S-E-G-, 24 I. & N. Dec. 579, 584 (B.I.A. 2008). The majority concludes that the IJ and Board s that determination Temu s proposed group lacks explanation for why it was appropriate to use that construct had Temu raised that issue for the Board s consideration. 29 particularity is based on an error of law. Specifically, the majority opines Maj. Op. at 15-20. that the IJ and Board commit[ted] legal error by splitting Mr. Temu s group in two and rejecting each part, rather than considering it as a whole. Maj. Op. at 17. I disagree. At the outset, it is fundamentally important to review the IJ and Board s actual holdings. proposed social group erratic behavior is lacked too The IJ concluded that Temu s particularity amorphous to because provide benchmark for determining group membership. an the term adequate (A.R. 72.) It explained that [e]rratic behavior could range from eccentric remarks to particular violent behavior outbursts. to be Whether erratic one is a perceives question a of perspective, and as a result the respondent s particular social group lacks particularity. with the IJ s conclusion (Id.) that The Board, in turn, agreed erratic behavior is too indeterminate to meet the requirement of particularity . . . as the mentally ill . . . comprise a wide variety of different individuals covering a broad range of functionality. And in rejecting Temu s argument that he (A.R. 4.) satisfied the particularity requirement with evidence that individuals with . . . bipolar disorder suffer from a discrete set of symptoms[] that include[s] erratic behavior, the Board also noted that erratic behavior is an amorphous characteristic, which does not 30 provide an adequate benchmark for determining group membership or a concrete trait that would readily identify a person as possessing such a characteristic. (Id.) As the above recitation suggests, the Board did not divide Temu s proposed group into two discrete subsections and consider them entirely apart from each other. To the extent that the underlying analysis focused on the component parts, however, it was not an error of law to do so. If each component of a proposed social group is amorphous and lacks particularity then it will often be true and I conclude is the case here that the group as a whole also lacks the requisite particularity. Far from being an aberration in this Court s or the Board s precedent, the IJ and Board s approach in this case is one that both the Board and this Court have used in the past. For example, in Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011), the Court upheld the Board s conclusion that Lizama s proposed social group of young, Americanized, well-off Salvadoran male deportees with particularity. that the criminal histories Id. at 442. component parts who oppose gangs lacked In so holding, the Court observed of this group were all amorphous characteristics that neither provide an adequate benchmark for determining group membership, nor embody concrete traits that would readily characteristics. identify Id. a at person 447 31 as (internal possessing citation those omitted). Indeed, Lizama specifically argued that the Board had erred by dissect[ing] [Lizama s] social group into supbarts, fail[ing] to consider the group in its totality. Id. and Far from recognizing that approach as legal error, the Court rejected the argument for the simple reason that Lizama failed to explain how viewing the above-mentioned terms in conjunction with each other makes the group any more particular[.] The truth remains that, as a whole, the group described is not narrow or enduring enough to clearly delineate its membership or readily identify its members. Id. at 447-48. If the approach taken by the Board had been an error of law, Lizama would have recognized it as such and considering would not whether have applied Lizama s the same proposed approach group in lacked particularity. As another example, in Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012), Zelaya asserted that he was eligible for asylum and withholding of removal based on his membership in the proposed group of young Honduran males who (1) refuse to join the Mara Salvatrucha 13 gang (MS-13), (2) have notified the authorities of MS-13 s harassment tactics, tormentor within MS-13. and Id. at 162. (3) have an identifiable In upholding the Board s denial of relief based on the conclusion that Zelaya s group was not cognizable under the INA, the Court held: 32 The critical problem with Zelaya s proposed social group for purposes of seeking asylum is that it fails the BIA s particularity requirement. First, as we have previously recognized, opposition to gangs is an amorphous characteristic providing neither an adequate benchmark for determining group membership nor embodying a concrete trait that would readily identify a person as possessing such a characteristic. Resisting gang recruitment is similarly amorphous, and the fact that Zelaya s conduct in resisting recruitment included complaining twice to the police adds little to the particularity equation in the face of the common sense proposition that MS-13 would look unfavorably upon anyone who complained about its harassment tactics to the police. Similarly, the concept that a person who is victimized by one gang member more than by other gang members somehow serves to particularize all such persons into a targeted social group is just nonsensical. Id. at 166-67. The Court thus considered the group as a whole, but in so doing addressed why its specific components lacked particularity as part of that whole. Similarly, here, the Board considered Temu s proposed group and concluded that it consisted of criteria that would not make that group particular. A.R. 4.) (Cf. Far from being an error of law, that is precisely the inquiry the IJ and Board are charged with undertaking. I conclude that the IJ and Board s determinations after conducting that proper legal inquiry are not manifestly contrary to the law or an abuse of discretion. No adequate benchmark exists for determining whether an individual is a member of a group defined as bipolar individuals in Tanzania who engage in erratic behavior. nothing inherent Contrary to the majority s claim, there is in this group s 33 description that limits a person s erratic behavior to a diagnosis of bipolar disorder or vice versa. More to the point, bipolar disorder covers a wide spectrum of behaviors and tendencies, and erratic behavior is inherently subjective and amorphous. There is no discernible basis for readily identifying an individual as being part of the proposed group or not. See, e.g., Mendoza-Alvarez v. Holder, 714 F.3d 1161, 164 (9th Cir. 2013) (per curiam) (rejecting the proposed social groups of all insulin-dependent diabetics or all insulin-dependent illnesses (whether characteristics of diabetics the an group inability who suffer contained to work, from the lack mental additional of medical insurance, and a lack of money from other sources from which to pay for essential medication or not) as lacking particularity because the proposed group include[s] large numbers of people with different conditions and in different circumstances . . . [and] [i]ndividuals may have these conditions separately or in combination, and in varying degrees of severity and thus are far from a particular, discrete social group ); Matter of S-EG-, 24 I. & N. Dec. at 585 (concluding that male children who lack stable families and meaningful adult protection, who are from middle and low income classes, who live in territories controlled by the MS-13 gang, and who refuse recruitment lacks particularity because these characteristics 34 remain amorphous [given that] people s ideas of what those terms mean can vary ). The majority is correct that the IJ and Board must consider the scope of the group the petitioner actually proffers. Maj. Op. at 18. not require criteria for And it is conceptually true that the INA does that each individual a particular group proposed See considered particularity requirement. social as a trait must meet all the group in order for the whole to See Maj. Op. at 19. satisfy the But where none of the proposed group s parts satisfy the requirement, then it will most frequently be the case that the whole cannot satisfy it either. The majority s reliance on Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), is, I believe, misplaced because there the petitioners proposed group consisted in part of family members, a trait that had previously been recognized as being a discrete group that was well-defined. Id. at 125. The Board s error in that case was ignoring that component of the proposed group in conducting its original analysis and then recharacterizing the group on remand beyond its proposed scope. Id.; see also Valladares s Zelaya, holding 668 that F.3d the at 166 (noting self-limiting nature family unit satisfied the particularity requirement ). Crespinof the Neither the IJ nor the Board engaged in similar conduct here; instead, 35 they considered Temu s proposed group according to each component he urged and found that this proposed group lacked the requisite particularity. For the reasons described above, I would hold that their analysis was not manifestly contrary to the law or an abuse of discretion. III. Because I would uphold the Board s decision with respect to particularity, it follows that Temu s proposed group would fail to satisfy all the required characteristics of a particular social group, and his claim would fail as a matter of law. Zelaya, 668 F.3d at 167. consider Temu s Cf. As such, I do not find it necessary to remaining arguments. I would deny Temu s petition for review, thereby affirming the Board s decision to deny Temu s application for asylum and withholding of removal under the INA. I therefore respectfully dissent. 36