Benitez Ramos v. Holder
589 F.3d 426 (2009)
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Rule of Law:
Former membership in a specific, identifiable group, including a criminal gang, can constitute a 'particular social group' for the purpose of withholding of removal because past membership is an immutable characteristic that cannot be changed.
Facts:
- Nelson Alejandro Benitez Ramos was born in El Salvador and joined the Mara Salvatrucha (MS) gang in 1994 at the age of 14.
- He remained an active member of the gang for nine years.
- In 2003, Ramos came to the United States.
- Shortly after his arrival, Ramos became a born-again Christian and decided that his religious beliefs prevented him from ever rejoining the gang.
- Ramos has distinctive MS tattoos on his face and body, making him easily identifiable to other gang members.
- Ramos fears that if he is returned to El Salvador, the MS gang will kill him for his refusal to rejoin, and the local police will be unable or unwilling to protect him.
Procedural Posture:
- Nelson Alejandro Benitez Ramos submitted an application for withholding of removal to U.S. immigration authorities.
- An immigration judge conducted a hearing and denied the application.
- Ramos appealed the immigration judge's decision to the Board of Immigration Appeals (BIA), an administrative appellate body.
- The BIA affirmed the denial, ruling that 'tattooed, former Salvadoran gang members' do not constitute a particular social group.
- Ramos filed a petition for review of the BIA's final order with the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a group defined by former membership in a specific, violent street gang constitute a 'particular social group' for the purpose of withholding of removal under U.S. immigration law?
Opinions:
Majority - Posner, Circuit Judge
Yes. Former membership in a specific gang can constitute a 'particular social group' because it is an immutable characteristic. The Board of Immigration Appeals defines a 'particular social group' as one whose members share characteristics they either cannot change or should not be required to change. Being a 'former member' of a group is a historical fact that is impossible to change, except by rejoining the group, which is the very action that would expose the applicant to persecution. The court rejected the government's argument that a group must have 'social visibility' in a literal sense, clarifying that the key is whether society recognizes the people as a distinct group, not whether they are physically conspicuous. Because Ramos was part of a specific and notorious gang, the group of its 'former members' is neither unspecific nor amorphous and thus qualifies as a particular social group.
Analysis:
This decision significantly clarifies the 'particular social group' standard in immigration law by establishing that former membership in a criminal organization can be a qualifying basis for protection. It reinforces the principle that immutability—a characteristic that cannot be changed—is the core of the analysis. By explicitly rejecting a literal 'social visibility' requirement, the court pushed back against a narrowing interpretation of the statute, forcing the Board of Immigration Appeals to evaluate such claims on their merits rather than dismissing them based on a categorical exclusion of former gang members.
