M-E-V-G
26 I & N Dec. 227 (2014)
Rule of Law:
To establish asylum eligibility based on membership in a particular social group, an applicant must demonstrate that the group is composed of members sharing a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question.
Facts:
- The respondent, M-E-V-G-, is a native of Honduras.
- Members of the Mara Salvatrucha gang actively attempted to recruit the respondent to join their ranks.
- The respondent refused these recruitment efforts because he was opposed to the gang.
- Following his refusal, gang members beat, kidnapped, and assaulted the respondent and his family members while they were traveling in Guatemala.
- Upon his return to Honduras, gang members threatened to kill the respondent if he did not join them.
- The gang members threw rocks and spears at the respondent and shot at him approximately two to three times per week.
- Fearing for his life, the respondent fled Honduras and entered the United States.
- He sought asylum based on his membership in a proposed group of 'Honduran youth who have been actively recruited by gangs but who have refused to join because they oppose the gangs.'
Procedural Posture:
- The Immigration Judge (IJ) denied the respondent's applications for asylum, withholding of removal, and protection under the Convention Against Torture.
- The Board of Immigration Appeals (BIA) summarily affirmed the decision of the Immigration Judge.
- The U.S. Court of Appeals for the Third Circuit granted the respondent's petition for review and remanded the case for reconsideration of the social group claim.
- On remand, the BIA issued a decision again denying the applications, ruling that the proposed group lacked 'particularity' and 'social visibility.'
- The U.S. Court of Appeals for the Third Circuit remanded the case a second time, holding that the BIA's 'social visibility' and 'particularity' requirements were inconsistent with prior precedent and lacked a principled rationale.
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Issue:
Does the requirement that a 'particular social group' generally possess 'social visibility' mandate that the group be ocularly visible to the naked eye, and what are the precise criteria for defining such a group under the Immigration and Nationality Act?
Opinions:
Majority - Board Member Guendelsberger
No, literal or 'ocular' visibility is not required to establish a particular social group; instead, the group must be perceived as a distinct entity by the relevant society. The Board acknowledged that the term 'social visibility' had caused confusion among federal courts, leading some to incorrectly believe it required members to be visually recognizable on sight. To clarify this, the Board renamed this element 'social distinction.' The Board reaffirmed its three-part analysis for particular social groups: (1) an immutable characteristic (following Matter of Acosta), (2) particularity (the group must have definable boundaries and benchmarks), and (3) social distinction (the society in question must perceive the group as a discrete class). The Board emphasized that the social distinction inquiry focuses on the perception of society as a whole, rather than solely on the perception of the persecutor, because defining a group by the persecutor's view creates circular logic where the group is defined only by the harm inflicted. The case was remanded to the Immigration Judge to apply this clarified standard to the respondent's specific facts.
Analysis:
This decision is a pivotal moment in asylum law as it represents the BIA's attempt to standardize the definition of 'particular social group' (PSG) in the face of conflicting circuit court interpretations. By renaming 'social visibility' to 'social distinction,' the Board aimed to preserve the requirement that a group be recognized by society while discarding the problematic implication that members must look different to the naked eye. This clarifies that groups like 'homosexuals' or 'women opposed to FGM' can qualify even if their traits are not physically visible. However, by strictly requiring 'particularity' and 'social distinction,' the Board made it significantly more difficult for applicants seeking asylum based on resistance to gang recruitment to succeed, as such groups are often viewed as too amorphous or not distinct within societies plagued by generalized violence.
