Flores-Rios v. Lynch, No. 12-72551 (9th Cir. 2015)
Annotate this CasePetitioner seeks review of the BIA's decision affirming the denial of his application for asylum, withholding of removal and protection under the Convention Against Torture (CAT). The BIA recently clarified the criteria for assessing social group claims in Matter of M-E-V-G-. Under the Board’s refined test, to establish eligibility for withholding on the basis of “membership in a particular social group,” a petitioner must show that the group is (1) comprised of individuals who “share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The new “social distinction” prong of the social group analysis “refers to social recognition” and requires that a group “be perceived as a group by society.” The BIA further clarified that recognition of a particular social group “is determined by the perception of the society in question, rather than by the perception of the persecutor.” Under the refined framework, the court concluded that the family remains the quintessential particular social group. In this case, petitioner argued that he faced persecution in his native Guatemala both because of a gang vendetta targeting his family - a cognizable “particular social group” - and because of his Evangelical Christian faith. The court concluded that, in the face of petitioner's social group claim and the evidence that gang members killed petitioner’s father, murdered his cousin and threatened his sister, the BIA erred in not addressing the family aspect of petitioner’s social group claim.
Court Description: Immigration. Concluding that the Board of Immigration Appeals erred by failing to consider petitioner’s claim for withholding of removal based on his family’s opposition to a Guatemalan gang, the panel denied in part and granted in part the petition for review, and remanded for further consideration. The panel held that substantial evidence supported the Board’s determination that because petitioner had never been threatened or harmed due to his religious affiliation and did not engage in proselytizing efforts, there was little likelihood that he would be persecuted as a result of his religious beliefs. Applying the revised framework for social group membership espoused by the Board in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014), the panel stated that membership in a particular social group must now show that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. The panel explained that the new social distinction prong of the social group analysis refers to social recognition and requires that a group be perceived as a group by society, in contrast to the en banc majority’s focus on the perception of the persecutor in Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir. 2013) (en banc). The panel stated that even under this revised FLORES-RIOS V. LYNCH 3 framework, the family remains the quintessential particular social group. The panel held that the Board erred by failing to address petitioner’s claim that he is a member of a social group made up of his family and that he risks persecution by a gang because of its vendetta against his family. The panel remanded for further proceedings.
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