Nexus - Particular Social Group (PSG) LP (RAIO)

REFUGEE, ASYLUM, AND INTERNATIONAL OPERATIONS DIRECTORATE (RAIO)

DATE (see schedule of revisions): 7/20/2021

RAIO DIRECTORATE – OFFICER TRAINING

RAIO Combined Training Program

NEXUS –

PARTICULAR SOCIAL GROUP

TRAINING MODULE

Nexus – Particular Social Group

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DATE (see schedule of revisions): 7/20/2021

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RAIO Directorate – Officer Training / RAIO Combined Training Program

NEXUS – PARTICULAR SOCIAL GROUP

Training Module

MODULE DESCRIPTION:

This module discusses membership in a particular social group (PSG), one of the

protected grounds in the refugee definition codified in the Immigration and Nationality

Act. The discussion describes membership in a particular social group (PSG) and

examines its interpretation in administrative and judicial case law. The primary focus of

this module is the determination as to whether an applicant has established that past harm

suffered or future harm feared is on account of membership in a particular social group.

TERMINAL PERFORMANCE OBJECTIVE(S)

Given a request to adjudicate either a request for asylum or a request for refugee status,

the officer will be able to apply the law (statutes, regulations and case law) to determine

whether an applicant is eligible for the requested relief.

ENABLING PERFORMANCE OBJECTIVES

1. Explain factors to consider in determining whether persecution or feared persecution

is on account of membership in a particular social group.

•

INSTRUCTIONAL METHODS

• Interactive Presentation

• Discussion

• Practical Exercises

METHOD(S) OF EVALUATION

• Multiple-choice exam

Nexus – Particular Social Group

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REQUIRED READING

1. Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

2. Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014)

3. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021)

4. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

5. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017)

Required Reading – International and Refugee Adjudications

Required Reading – Asylum Adjudications

ADDITIONAL RESOURCES

1. Matter of C-A-, 23 I&N Dec. 951 (BIA 2006)

2. Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)

3. Lynden D. Melmed, USCIS Chief Counsel. Guidance on Matter of C-A-,

Memorandum to Lori Scialabba, Associate Director, Refugee, Asylum and

International Operations (Washington, DC: January 12, 2007).

4. United Nations High Commissioner for Refugees, Guidelines on International

Protection: “Membership of a particular social group” within the context of Article

1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of

Refugees. HCR/GIP/02/02, 7 May 2002, 5 pp.

5. Phyllis Coven. INS Office of International Affairs. Considerations For Asylum

Officers Adjudicating Asylum Claims From Women (Gender Guidelines),

Memorandum to all INS Asylum Officers, HQASM Coordinators (Washington, DC:

26 May 1995), 19 p. See also RAIO Training Module, Gender-Related Claims.

6. Rosemary Melville. INS Office of International Affairs. Follow Up on Gender

Guidelines Training, Memorandum to Asylum Office Directors, SAOs, AOs

(Washington, DC: 7 July 1995), 8 p.

7. Paul W. Virtue. INS Office of General Counsel. Whether Somali Clan Membership

May Meet the Definition of Membership in a Particular Social Group under the INA,

Memorandum to Kathleen Thompson, INS Office of International Affairs

(Washington, DC: 9 December 1993), 7 p.

Additional Resources – International and Refugee Adjudications

Nexus – Particular Social Group

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Additional Resources – Asylum Adjudications

CRITICAL TASKS

Task/ Skill # Task Description

ILR6

Knowledge of U.S. case law that impacts RAIO (3)

ILR9

Knowledge of policies and procedures for processing lesbian, gay, bisexual and

transgender (LGBT) claims (3)

ILR10

Knowledge of policies and procedures for processing gender-related claims (3)

ILR14

Knowledge of nexus to a protected characteristic (4)

ILR15

Knowledge of the elements of each protected characteristic (4)

DM2

Skill in applying legal, policy and procedural guidance (e.g., statutes, precedent

decisions, case law) to information and evidence) (5)

RI1

Skill in identifying issues of claim (4)

RI2

Skill in identifying the information required to establish eligibility (4)

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SCHEDULE OF REVISIONS

Date

Section

(Number and

Name)

Brief Description of Changes

Made By

11/6/2013

Summary (of

4/30/2013

edition)

Revised last sentence of paragraph 1 of

Summary and corrected corresponding

footnote # 114; added an additional sentence

as clarification.

J. Kochman

2/4/2014

Additional

Resources

Removed Dea Carpenter memo (not yet

accepted)

L. Gollub

(incorporated

by V. Conley

and J.

Stadnick)

7/27/2015

Throughout LP

Substantial revision of LP for updated case

law and new guidance:

ASM QA,

ASM

Training,

RAD TAQA,

RAIO

Training

12/20/2019

Entire Lesson

Plan; Added

Disclaimer;

Required

Readings

Minor edits to reflect changes in

organizational structure of RAIO; added

disclaimer textbox regarding updated case law

to p. 9; added required readings to p. 4; no

other substantive updates

RAIO

Training

7/20/2021

“Important Note

about Updated

Case Law”

Disclaimer;

Required

Readings

Updated to reflect vacatur of Matter of A-B-,

27 I&N Dec. 316 (A.G. 2018) (“A-B- I”),

Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021)

(“A-B- II”), and Matter of L-E-A-, 27 I&N

Dec. 581 (A.G. 2019) (“L-E-A- II”); fixed

broken links

RAIO

Training,

OCC

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Table of Contents

1. INTRODUCTION .....................................................................................................................10

2. DOES THE APPLICANT POSSESS A PROTECTED CHARACTERISTIC? ...................................11

2.1 Is the Applicant a Member of a Particular Social Group? ...............................................11

2.2 General Principles for Formulating Particular Social Groups ..........................................18

3. IS THE PERSECUTION OR FEARED PERSECUTION “ON ACCOUNT OF” THE APPLICANT’S

PARTICULAR SOCIAL GROUP MEMBERSHIP? ......................................................................21

4. PRECEDENT DECISIONS (SPECIFIC GROUPS) .......................................................................22

4.1 Family Membership .........................................................................................................22

4.2 Clan Membership .............................................................................................................24

4.3 Age ...................................................................................................................................25

4.4 Gender ..............................................................................................................................26

4.4.1 Female Genital Mutilation (FGM) ................................................................................26

4.4.2 Widows ..........................................................................................................................27

4.4.3 Gender-Specific Dress Codes ........................................................................................28

4.5 Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) ..........................................29

4.6 Domestic Violence ...........................................................................................................30

4.6.1 Women Who Are Unable to Leave a Domestic Relationship or Women Who Are

Viewed as Property by Virtue of their Position within a Domestic Relationship .........30

4.6.2 Other Types of Domestic Relationships ........................................................................31

4.6.3 Children in Domestic Relationships ..............................................................................32

4.7 Ancestry ............................................................................................................................34

4.8 Individuals with Physical or Mental Disabilities .............................................................35

4.9 Unions ..............................................................................................................................36

4.10 Students and Professionals ...............................................................................................37

4.11 Small-Business Owners Indebted to Private Creditors ....................................................37

4.12 Landowners ......................................................................................................................37

4.13 Groups Based on “Wealth” or “Affluence” .....................................................................39

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4.14 Present or Former Employment in Either Law Enforcement or the Military ..................40

4.14.1 Former Military/Police Membership .............................................................................40

4.14.2 Current Military/Police Membership ............................................................................42

4.15 Drug Traffickers ...............................................................................................................43

4.16 Criminal Deportees ...........................................................................................................44

4.17 Persons Returning from the United States .......................................................................44

4.18 Tattooed Youth .................................................................................................................45

4.19 Individuals Resisting and Fearing Gang Recruitment, and Opposition to Gang Authority45

4.20 Non-Criminal Informants, Civilian Witnesses, and Assistance to Law Enforcement .....46

4.21 Gang Members .................................................................................................................50

4.22 Former Gang Members ....................................................................................................51

5. SUMMARY ..............................................................................................................................51

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Throughout this training module, you will come across references to adjudication-

specific supplemental information located at the end of the module, as well as links

to documents that contain adjudication-specific, detailed information. You are

responsible for knowing the information in the referenced material that pertains to

the adjudications you will be performing.

For easy reference, supplements for international and refugee adjudications are in

pink and supplements for asylum adjudications are in yellow.

You may also encounter references to the legacy Refugee Affairs Division (RAD)

and the legacy International Operations Division (IO). RAD has been renamed the

International and Refugee Affairs Division (IRAD) and has assumed much of the

workload of IO, which is no longer operating as a separate RAIO division.

Important Note about Updated Case Law

On June 16, 2021, the Attorney General issued a pair of decisions vacating Matter

of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”), Matter of A-B-, 28 I&N Dec.

199 (A.G. 2021) (“A-B- II”), and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019)

(“L-E-A- II”) in their entirety. See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021)

and Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021). Accordingly, RAIO officers

should not rely upon these vacated decisions or the associated USCIS Policy

Memoranda from July 11, 2018 (Matter of A-B-) and September 30, 2019 (Matter

of L-E-A-), or any other USCIS guidance or training materials that reference these

documents, to the extent they are based on the vacated decisions.

In both decisions, the Attorney General noted the President’s executive order

directing the Attorney General and the Secretary of Homeland Security to

promulgate joint regulations addressing the circumstances in which a person

should be considered a member of a particular social group. Matter of A-B-, 28

I&N Dec. at 308; Matter of L-E-A-, 28 I&N Dec. at 304-05 (citing Exec. Order No.

14010, § 4(c)(ii), 86 Fed. Reg. 8267, 8271 (Feb. 2, 2021)). As such, the particular

social group issues addressed by these decisions will be the subject of forthcoming

rulemaking, where they can be resolved with the benefit of a full record and public

comment.

Pending rulemaking, adjudicators are directed to follow pre-A-B- I precedent,

including Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which had been

overruled by the Attorney General in A-B- I. In Matter of A-R-C-G-, the Board of

Immigration Appeals (“BIA” or “Board”) held that “married women in Guatemala

who are unable to leave their relationship” can constitute a cognizable particular

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social group that forms the basis of a claim for asylum, depending on the facts and

evidence in the individual case. A-R-C-G- is discussed in more detail in Sections

2.1, Is the Applicant a Member of a Particular Social Group? and 4.6, Domestic

Violence, in this lesson plan. Adjudicators also should follow the guidance in

DHS’s brief to the Board in Matter of L-R-, which is discussed in Section 4.6,

Domestic Violence, in this lesson plan.

Similarly, adjudicators are directed to rely on pre-L-E-A- II precedent, including

Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”). In that case, the BIA

held that the respondent’s father’s immediate family qualified as a particular social

group, reiterating its “long recognized” position “that family ties may meet the

requirements of a particular social group depending on the facts and circumstances

of the case.” Id. at 42. The BIA stated that not all attenuated family ties will satisfy

the particularity and social distinction criteria, and the analysis “will depend on the

nature and degree of the relationships involved and how those relationships are

regarded by the society in question.” Id. at 42-43. The BIA also upheld the

Immigration Judge’s finding that the cartel was not motivated to harm the

respondent on account of his family status. Rather, based on the specific facts in

the record, the persecutor was motivated to target the respondent because he was in

a position to provide access to his father’s store, where the cartel wanted to

increase its profits by selling contraband, and the respondent’s membership in his

family was an incidental reason for the harm. Id. at 46-47. Family-based particular

social groups are discussed in Sections 4.1, Family Membership, and 4.2, Clan

Membership, in this lesson plan.

Further guidance and substantive revisions to this lesson plan are forthcoming as of

the last revision date (see schedule of revisions). In the meantime, the “Required

Reading” list, above, has been updated to reflect the Board’s currently binding

decisions on these topics.

1. INTRODUCTION

The refugee definition at INA §101(a)(42) states that an individual is a refugee if he or

she establishes past persecution or a well-founded fear of future persecution on account

of one or more of the five protected grounds. All of the elements of the refugee definition

are reviewed in the RAIO Training Module, Refugee Definition. The requirements for an

applicant to establish eligibility based on past persecution are discussed in the module,

Persecution. The elements necessary to establish a well-founded fear of future

persecution are discussed in the module, Well-Founded Fear. The analysis of the

persecutor’s motive and the requirements needed to establish that persecution or feared

persecution is “on account of” race, religion, nationality, or political opinion are

discussed in the module, Nexus and the Protected Grounds (minus PSG).

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This module provides you with an understanding of the requirements needed to establish

whether persecution or feared persecution is “on account of” membership in a particular

social group (PSG).

The nexus analysis for particular social group claims is fundamentally the same as it is

for cases involving the other protected characteristics; you must determine:

1. whether the applicant possesses or is perceived to possess a protected characteristic;

and

2. whether the persecution or feared persecution is on account of that protected

characteristic.

2. DOES THE APPLICANT POSSESS A PROTECTED CHARACTERISTIC?

The first question is the starting point for all protected grounds – whether the applicant

possesses, or is perceived to possess, a protected characteristic: membership in a

particular social group. Membership in a particular social group may overlap with other

protected grounds, such as political opinion, and you should also consider whether the

applicant can establish eligibility based on a different protected ground.

For cases based on membership in a particular social group, the analysis is expanded,

requiring you to identify the characteristics that form the particular social group and

explain why persons with those characteristics form a particular social group within the

meaning of the refugee definition.

Determining whether a specific group constitutes a particular social group can be a

complicated task. Recognizing this complexity, the Board of Immigration Appeals has set

forth a three-part test for evaluating whether a group meets the definition of a particular

social group.

While looking to precedential decisions from the Board and the circuit

courts of appeals may help inform your decision, you must apply the analysis discussed

below to the facts of each individual case.

2.1 Is the Applicant a Member of a Particular Social Group?

An applicant who is seeking asylum or refugee status based on membership in a

particular social group must establish that the group is (1) composed of members who

Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).

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share a common immutable characteristic, (2) socially distinct within the society in

question, and (3) defined with particularity.

All three elements must be established.

It is important to remember that membership in a particular social group may be imputed

to an applicant who is not, in fact, a member of a particular social group.

Step One: Common Immutable Characteristic

The group must comprise individuals who share a common, immutable characteristic,

meaning it is one that the members of the group either cannot change, or should not be

required to change because it is fundamental to each member’s identity or conscience.

The defining characteristic can be a shared innate characteristic, a shared past experience,

or a social or other status.

Unchangeable Characteristics

Unchangeable characteristics are traits that cannot be changed. Some examples of

characteristics that cannot be changed include innate ones, like gender, race, ethnicity,

skin color, and family relationships.

Some of these characteristics are biological traits of

a person. Others might be shared past experiences that cannot be changed because a

person is unable to change the past.

Fundamental Characteristics

Fundamental characteristics are traits, beliefs, or statuses that a person should not be

required to change because they are essential to the individual’s identity or conscience. In

analyzing this type of claim, you should consider both how the applicant experiences the

trait as part of his or her identity and whether the trait is fundamental from an objective

point of view. With regard to the latter, you may consider whether human rights norms

suggest the characteristic is fundamental. An example of a shared trait that is fundamental

to an individual’s identity or conscience is having intact genitalia in the female genital

mutilation (FGM) context. In contrast, even though an applicant may consider being a

member of a terrorist or criminal organization as being fundamental to his or her identity

or conscience, there is no basic human right to pursue such an association, and it would

not be considered fundamental from an objective point of view.

Matter of M-E-V-G-, 26 I&N Dec. at 237; Matter of W-G-R-, 26 I&N Dec. at 212-218; see also Matter of A-R-C-G-, 26 I&N

Dec. 388 (BIA 2014) (applying to a domestic violence scenario the three-part test put forth in Matter of M-E-V-G- and Matter of

W-G-R-.)

Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985).

Id. at 233-34; Matter of W-G-R-, 26 I&N Dec. at 212-13; Matter of A-R-C-G-, 26 I&N Dec. at 392-393.

See Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993); Matter of Kasinga, 21 I&N Dec. 357, 366 (BIA 1996).

See Arteaga v. Mukasey, 511 F.3d 940, 946 (9th Cir. 2007) (the court noted, “we would be hard-pressed to agree with the

suggestion that one who voluntarily associates with a vicious street gang that participates in violent criminal activity does so for

reasons so fundamental to ‘human dignity’ that he should not be forced to forsake the association”).

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In Matter of Acosta, 19 I&N Dec. 211, 234 (BIA 1988), the Board explained that the

unchangeable characteristic or fundamental characteristic is part of the definition of a

particular social group because each of the other four protected grounds describe

persecution aimed at an immutable characteristic.

Therefore, the Board interpreted the

term “particular social group” consistently with the other grounds of persecution in the

INA, explaining that “the concept that refuge is restricted to individuals who are either

unable by their own actions, or as a matter of conscience should not be required, to avoid

persecution.”

Assumption of Risk Considerations

In some cases, the applicant’s voluntary assumption of an extraordinary risk of serious

harm in taking on the trait that defines the group may be evidence of fundamentality.

applicant’s decision to assume significant risks can, in some cases, provide evidence that

the belief or trait is fundamental to the applicant’s identity or conscience.

The relevance

of an applicant’s voluntary assumption of risk must be considered on a case-by-case

basis. Not all individuals assume the risk of a particular activity because the activity is

fundamental to their identity.

For example, an individual may assume the risk of a

particular activity for monetary gain, and in such a case that assumption of risk may

undercut fundamentality.

Step Two: Social Distinction

A group’s shared characteristic must be perceived as distinct by the relevant society.

This element has sometimes been referred to as “social visibility.” However, in its rulings

in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I&N

Dec. 208 (BIA 2014), the Board renamed “social visibility” as “social distinction” to

avoid confusion.

The Board emphasized that “social distinction” does not require the

shared characteristic to be seen by society (i.e., visible); instead the group characteristic

must be perceived as distinct by society.

There must be evidence indicating “that a

Matter of Acosta, 19 I&N Dec. at 233-34.

Id.

See Lynden D. Melmed, USCIS Chief Counsel, Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate

Director, Refugee, Asylum and International Operations (Washington, DC: January 12, 2007).

Id. at 3.

Lynden D. Melmed, USCIS Chief Counsel, Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate Director,

Refugee, Asylum and International Operations (Washington, DC: January 12, 2007).

Id.

Matter of W-G-R-, 26 I&N Dec. at 216.

Matter of M-E-V-G-, 26 I&N Dec. at 240; Matter of W-G-R-, 26 I&N Dec. at 216.

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society in general perceives, considers, or recognizes persons” as a group.

This

requirement can be met by showing that the society in question sets apart or differentiates

between people who possess the shared belief or trait and people who do not, even if

individual group members are not visibly recognized as group members. In other words,

if the common immutable characteristic were known, those with the characteristic in the

society in question would be meaningfully distinguished from those who do not have it.

The Board’s interpretation of “social distinction” is consistent with USCIS’s

longstanding interpretation of the term.

In some circumstances, members of a group may be visibly recognizable, but society may

also consider persons to be a group without being able to identify the members by sight.

Board cases have recognized groups that were not ocularly visible. For instance, in

Matter of Kasinga, 21 I&N Dec. 357, 365-66 (BIA 1996), the Board determined that

young women from a certain ethnic group in Togo who have not been previously

subjected to FGM but are opposed to it constitute a particular social group. In Matter of

Toboso-Alfonso, 20 I&N Dec. 819, 822-23 (BIA 1990) the Board held that

“homosexuals” in Cuba were a particular social group. In Matter of Fuentes, 19 I&N

Dec. 658 (BIA 1988), the Board concluded that former national police members could be

a particular social group in some circumstances. These cases illustrate the point that

ocular visibility is not required. In such cases, it may not be easy or possible to identify

who has not been subjected to or is opposed to FGM, who is gay, or who is a former

member of the national police.

Social distinction must be evaluated on a case-by-case basis and society-by-society

basis

As previously noted, for social distinction, there must be evidence showing that society in

general perceives or considers people who share a particular characteristic as distinct.

Evidence such as country conditions, witness testimony, and press accounts may

establish that a group is distinct.

The Board has emphasized that the social distinction

determination must be made on a case-by-case basis.

Laws, policies, or cultural

practices of a society, as well as governmental or non-governmental programs targeting

certain groups, may also establish social distinction. For instance, in evaluating whether

Matter of W-G-R-, 26 I&N Dec. at 217.

Matter of M-E-V-G-, 26 I&N Dec. at 238.

See, e.g., Lynden D. Melmed, USCIS Chief Counsel, Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate

Director, Refugee, Asylum and International Operations (Washington, DC: January 12, 2007).

Matter of M-E-V-G-, 26 I&N Dec. at 240.

Matter of W-G-R-, 26 I&N Dec. at 217 (BIA 2014).

Matter of M-E-V-G-, 26 I&N Dec. at 244 (BIA 2014); see also Matter of A-R-C-G-, 26 I&N Dec. 388, 394 (BIA 2014)

(discussing the types of evidence that may show social distinction in domestic violence-related particular social groups, including

evidence that the society recognizes the need to offer protection to victims of domestic violence and other sociopolitical factors).

Matter of M-E-V-G-, 26 I&N Dec. at 242.

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Guatemalan widows are socially distinct, you could research whether the Guatemalan

government has laws and policies addressing the needs of widows, and whether NGOs

have assistance programs helping widows. In Matter of A-R-C-G-, the Board explained

that evidence that a certain group is protected within a society could establish social

distinction.

The Board and the courts have not limited the types of society-specific

evidence upon which you can rely. In another context, a society might have songs or

poetry about witnesses who testify in court against members of criminal groups, and this

could serve as some evidence that such witnesses might be distinct in that society. The

individual group member’s treatment may be relevant to whether such a group is socially

distinct. The relevant society may include the entire country or a particular region or

community within the country. Accordingly, you should consider all evidence before you

to determine whether or not the proposed group is socially distinct.

Examining the Board’s holdings in M-E-V-G-and W-G-R-, the Ninth Circuit also has

emphasized that the analysis must be case-specific and society-specific.

The Ninth

Circuit noted that “[i]t is an error…to assume that if a social group related to the same

international gang…has been found non-cognizable in one society, it will not be

cognizable in any society. Honduras, El Salvador, Guatemala, Nicaragua, and Panama

have used different strategies for combating gang violence…[and] these different local

responses to gangs in nations with distinct histories…may well result in a different social

recognition of social groups opposed to gang violence….” The Ninth Circuit concluded

that “the agency must make a case-by-case determination as to whether the group is

recognized by the particular society in question . . . [and] may not reject a group solely

because it had previously found a similar group in a different society to lack social

distinction.”

The Second Circuit also has examined the Board’s holdings in M-E-V-G-

and W-G-R- and remanded a case for the Board to conduct additional case-specific

analysis.

This case-specific approach is not new. In Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69

(BIA 2007), the Board indicated that determining whether a group has a socially distinct

shared characteristic must be “considered in the context of the country of concern and the

persecution feared.”

In A-M-E- & J-G-U-, the Board reviewed country conditions to

evaluate whether, in context, the proposed particular social group members shared

socially distinct characteristics. The Board found that the applicants did not establish the

existence of a particular social group because the proposed particular social group –

“affluent Guatemalans” – did not share a common trait that was socially distinct in

Matter of A-R-C-G-, 26 I&N Dec. at 394.

Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014).

Id. at 1084 n.7.

Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (instructing the Board to determine whether the proposed groups of “young

Albanian women” or “young Albanian women between the ages of 15 and 25” qualified as cognizable social group).

Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74 (BIA 2007); cf. Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir.

2005).

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Guatemalan society.

In that case, the country of origin information before the Board

demonstrated that “affluent Guatemalans” were not at greater risk of criminality or

extortion than the general population. Instead the country of origin information

demonstrated that criminality is pervasive in all Guatemalan socio-economic groups. The

report indicated that impoverished Indians were also subjected to both crimes. For the

same reason, the Board also rejected the following possible formulations of the group:

“wealth,” “upper income level,” “socio-economic level,” “the monied class,” and “the

upper class.” The Board specifically noted, however, that wealth- or class-based social

groups must be analyzed in context, and that, under some circumstances, such groups

might qualify as particular social groups.

For example, should a government institute a

policy of imprisoning and mistreating persons with assets or income above a fixed level,

there could be a basis for a societal perception that the class of wealthy persons, as

defined by the government, would constitute a particular social group.

Because case-specific analysis is required, it is critical for you to look at all relevant

information, including the applicant’s individual circumstances, the circumstances

surrounding the events of persecution, and country of origin information, before making a

social distinction determination. Country of origin information indicating that the

immutable characteristic reflects societal distinctions is relevant when analyzing whether

a group constitutes a particular social group.

The group does not have to self-identify as a group and members may hide their

membership

It is not necessary for a group to identify itself explicitly as a group in order for the social

distinction requirement to be met. In addition, the fact that a member of a particular

social group may make efforts to hide his or her membership to avoid persecution does

not prevent such a group from constituting a cognizable particular social group.

Accordingly, a group may not appear cohesive and may not display the traditional

hallmarks of a group that shows its existence openly.

If the society in question

distinguishes people who possess the immutable trait from others because of their shared

belief or characteristic, then the group is socially distinct.

See also Donchev v. Mukasey, 553 F.3d 1206, 1218-1219 (9th Cir. 2009) (“friends of Roma individuals or of the Roma people”

not a socially distinct group, in part, because country conditions did not show that members of the group, such as the applicant’s

family members, were viewed or treated by Bulgarian society in a uniform manner).

Matter of A-M-E- & J-G-U-, 24 I&N Dec. at 75, n.6.

Id.; see also Tapiero de Orejuela, 423 F.3d at 672 (finding that a particular social group of educated, wealthy, landowning,

cattle-farming Colombians, was a cognizable group because the group was not defined merely by wealth).

See Castellano-Chacon v. INS, 341 F.3d 533, 548 (6th Cir. 2003) (noting that a society’s reaction to a group may provide

evidence that a particular social group exists, so long as the persecutors’ reaction to the members of the group is not the central

characteristic of the group); see also Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991) (“A particular social group is comprised of

individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor

– or in the eyes of the outside world in general.”).

Matter of W-G-R-, 26 I&N Dec. 208, 217 (BIA 2014).

Id.

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Step 3: Particularity

Applicants seeking to establish membership in a particular social group must also

establish that the group is defined with sufficient particularity. The particularity

requirement relates to the group’s boundaries or the need to put outer limits on the

definition of a particular social group.

The term “particular[ity]” is included in the plain

language of “particular” social group and is consistent with the specificity by which race,

religion, nationality, and political opinion are commonly defined.

The characteristics

defining the group must provide a clear benchmark for determining who falls within the

group and who does not.

The group must be discrete and have definable boundaries.

The Board has made clear that this particularity inquiry must take into account the

perspectives of the society in question.

Thus, the Board noted in W-G-R- that

“landowners” might be able to meet the particularity requirement in an undeveloped,

oligarchical society but would be considered too ill-defined in the United States or

Canada.

The Board has upheld the principle that “major segments of the population will rarely, if

ever, constitute a distinct social group.”

This principle, however, does not preclude the

possibility that a large segment of society could constitute a particular social group in

some situations. The “particularity” requirement means that the group must be

identifiable and have clearly defined boundaries, and major segments of a society

frequently are not sufficiently “particular.”

You should avoid an overly broad or overly narrow characterization of a group. Courts

have held that a particular social group should not be defined so broadly as to make it

difficult to distinguish group members from others in the society in which they live, or so

narrowly that what is defined does not constitute a meaningful grouping.

Moreover,

even when such groups are cognizable, claims based on groups that are defined too

broadly or too narrowly may fail the nexus requirement.

Matter of M-E-V-G-, 26 I&N Dec. 227, 238 (BIA 2014) (citing Castellano-Chacon v. INS, 341 F.3d 533, 549 (6th Cir. 2003)).

Id. at 239.

Id. (citing Matter of A-M-E- & J-G-U-, 24 I&N Dec. at 76).

Id. (citing Ochoa v. Gonzales, 406 F.3d 1166, 1170-71 (9th Cir. 2005)); see also Matter of A-R-C-G-, 26 I&N Dec. 388, 393

(BIA 2014) (noting that “married,” “women,” and “unable to leave the relationship” have commonly accepted definitions within

Guatemalan society, and that these terms may be combined to create a group with discrete and definable boundaries).

Matter of W-G-R-, 26 I&N Dec. at 214.

Id. at 214-15.

Matter of M-E-V-G-, 26 I&N Dec. at 239 (citing Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005) (holding a group of

business persons were not particular)).

See Sanchez-Trujillo v. INS, 801 F.2d 1571, 1575-1577 (9th Cir. 1986); Gomez v. INS, 947 F.2d 660, 664 (2d

Cir. 1991);

Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003); Raffington v. INS, 340 F.3d 720, 723 (8th Cir. 2003).

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It also is important to remember that you should not analyze each characteristic of a

group separately and reject one piece at a time. In a case involving a proposed social

group of Tanzanians who exhibit erratic behavior and suffer from bipolar disorder, the

Fourth Circuit concluded that the Board “erred because it broke down [the petitioner’s]

group into pieces and rejected each piece, rather than analyzing his group as a whole.”

The court noted that “erratic behavior,” by itself, might lack particularity, but when

combined with bipolar disorder, the group would satisfy the particularity requirement.

The Fourth Circuit cautioned not to “miss the forest for the trees.”

2.2 General Principles for Formulating Particular Social Groups

A social group cannot be defined by terrorist, criminal, or persecutory activity or

association, past or present

Under general principles of refugee protection, the shared characteristic of terrorist,

criminal, or persecutory activity or association, past or present, cannot form the basis of a

particular social group.

Three federal courts have found that groups consisting of former gang members may

constitute particular social groups in some circumstances. For asylum cases arising within

the jurisdiction of the Fourth, Sixth, and Seventh Circuits, former membership in a gang

may form a particular social group if the former membership is immutable and the group

of former gang members is socially distinct and particular.

It is important to note,

though, that these court decisions were issued before the BIA’s rulings in M-E-V-G- and

W-G-R- and did not analyze whether these groups met the “social distinction” and

“particularity” criteria as articulated in those cases. Asylum officers in these circuits must

analyze whether proposed groups meet these criteria on a case-by-case basis.

See

Temu v. Holder, 740 F.3d 887, 895 (4th Cir. 2014).

Id.

Lynden D. Melmed, USCIS Chief Counsel, Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate Director,

Refugee, Asylum and International Operations (Washington, DC: January 12, 2007). See, e.g., Bastanipour v. INS, 980 F.2d

1129, 1132 (7th Cir. 1992) ("Whatever its precise scope, the term ‘particular social groups’ surely was not intended for the

protection of members of the criminal class in this country….”); Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (holding that

current or former gang membership does not give rise to a particular social group due to gang members’ criminal activities);

Cantarero v. Holder, 734 F.3d 82, 85-88 (upholding the BIA’s conclusion that recognizing former members of a gang as

members of a particular social group would undermine the legislative purpose of the INA).

Urbina-Mejia v. Holder, 597 F.3d 360, 365–67 (6th Cir.2010) (holding that former gang members of the 18th Street gang have

an immutable characteristic and are members of a “particular social group” based on their inability to change their past and the

ability of their persecutors to recognize them as former gang members); Benitez Ramos v. Holder, 589 F.3d 426, 431 (7th Cir.

2009); Martinez v. Holder, 740 F.3d 902, 911-13 (4th Cir. 2014) (holding that the petitioner’s membership in a group of former

MS-13 members was immutable, and remanding the case to the Board to analyze the other particular social group criteria); see

also USCIS Asylum Division Memorandum, Notification of Ramos v. Holder: Former Gang Membership as a Potential

Particular Social Group in the Seventh Circuit (Mar. 2, 2010).

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Asylum Adjudications Supplement – Former Gang Membership as a Particular Social

Group.

Current gang membership, however, may not be the basis for a particular social group

even in these circuits. For example, the Fourth Circuit noted:

We agree that current gang membership does not qualify as an immutable

characteristic of a particular social group….It is not the case that current gang

members “cannot change” their status as gang members, as they can leave the

gang. Nor do we think that they “should not be required to change because [gang

membership] is fundamental to their individual identities or consciences.” To so

hold would “pervert the manifest humanitarian purpose of the statute.”

The Fourth Circuit’s position on gang membership not being a fundamental trait is

consistent with USCIS’s position that a particular social group may not be based on

present criminal activity.

Avoid Circular Reasoning

A group cannot be defined solely by the fact that its members are subject to the harm that

the applicant claims to have suffered or to fear as persecution. The shared characteristic

of persecution by itself, however, does not disqualify an otherwise valid social group.

An otherwise valid group may be defined in part by the fact that its members are subject

to persecution if the group is defined by other viable immutable characteristics separate

from the feared persecution, or the fact of past persecution itself a basis for additional

persecution.

In some cases, the fact that an individual has been harmed in the past can create an

independent reason why that individual would be targeted for additional harm in the

future. In some societies, a shared past experience of having been harmed in the past may

give rise to a socially distinct, particularly defined group. For example, in some

circumstances, survivors of rape, if the rape is or were known to others, may be treated

differently from other individuals by the surrounding society and/or may face social

ostracism, or be more vulnerable to further harm as a result of their past harm. In such a

See also Matter of W-G-R-, 26 I&N Dec. 208, 220-222 (BIA 2014) (holding that an applicant’s proposed social group of

“former members of the Mara 18 gang in El Salvador who have renounced their gang membership” was not sufficiently

particular, because it could include people of any age, sex, and background and their participation in the gang could vary widely

in terms of strength and duration, or socially distinct, because there was not enough evidence in the record about the treatment or

status of former Mara 18 members in Salvadoran society).

Martinez, 740 F.3d at 912 (citations omitted).

See also Matter of W-G-R-, 26 I.&N. Dec. at 215 n. 5.

Matter of M-E-V-G-, 26 I&N Dec. 227, 243 (BIA 2014) (citing Cece v. Holder, 733 F.3d 662, 671 (7th Cir. 2013)); see also

Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74 (BIA 2007) (noting that the fact that members of a group have been harmed

may be a relevant factor in considering the group’s social distinction within society).

Cece, 733 F.3d at 671-72.

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case, the fact that the initial rape was not on account of a protected trait does not preclude

a finding that subsequent harm, whether it is in the form of repeated rape or of some other

kind of harm, may be on account of a shared characteristic that the applicant obtained by

virtue of the initial rape.

In such scenarios, the inclusion of the initial incident of past

harm as part of the particular social group definition does not violate the rule against

circularity. Such a group formulation, however, could not provide the required nexus for

the initial incident of mistreatment for purposes of any past persecution analysis.

Another example of past harm forming the basis of a valid particular social group is the

Lukwago v. Ashcroft case, involving a Ugandan man who was forcibly recruited by the

Lord’s Resistance Army (LRA) as a child.

He claimed past persecution based on his

membership in the particular social group of “children from Northern Uganda who are

abducted and enslaved by the LRA.”

The Third Circuit rejected the past persecution

claim, holding that the LRA was motivated to recruit the applicant by a desire to grow its

ranks, and not by his membership in the proposed particular social group.

The applicant

was not a member of the group at the time he was recruited. However, the court held that

the applicant might be able to present a claim based on his well-founded fear of future

persecution on account of a similar particular social group.

There may be a valid

particular social group since the experience of having been a child soldier for the LRA is

immutable, and assuming former child soldiers are socially distinct and well-defined in

Ugandan society, it could form a valid particular social group with regard to well-

founded fear.

While evidence that members of a group are harmed by either the government or private

actors can be evidence that they share a distinct trait, you should be careful to avoid

defining a particular social group solely or primarily by the harm the applicants suffer.

No size limitation

There are no maximum or minimum limits to the size of a particular social group. While

the Board has cautioned that major segments of the population will rarely constitute

distinct social groups, particular social groups may contain only a few individuals or a

large number of people.

Cf. Gomez v. INS, 947 F.2d 660, 663-4 (2d Cir. 1991) (rejecting an applicant’s claim that she would be harmed in the future as

a member of a particular social group “women previously battered and raped by Salvadoran guerrillas” because there was no

evidence that the applicant would be targeted for future harm on that basis).

Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) (remanding to the BIA to consider an applicant’s claim of well-founded fear

on account of being a former child soldier).

Id. at 167.

Id. at 170.

Id. at 178-79.

Matter of M-E-V-G-, 26 I&N Dec. 227, 239 (BIA 2014); Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010) (reasoning

“that the size and breadth of a group alone does not preclude a group from qualifying as such a social group”).

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The perception of the society in question, rather than the perception of the

persecutor, is most relevant to social distinction.

The Board has held that defining a particular social group from the perspective of the

persecutor is inconsistent with prior holdings that a social group cannot be defined

“exclusively” by the fact that a member has been subjected to harm.

The perception of

the applicant’s persecutors may be relevant, as it can be indicative of whether society

views the group as distinct.

The persecutors’ perception by itself, however, is

insufficient to make a group socially distinct.

No voluntary associational relationship needed

A voluntary association is not a required component of a particular social group, but can

be a shared trait that defines a particular social group.

Thus, a voluntary association

should be analyzed as any other trait asserted to define a particular social group.

Cohesiveness or homogeneity not required

Cohesiveness or homogeneity of group members is not a required component of a

particular social group.

It is not necessary that group members be similar in all or many

aspects and it is not required that the group members know each other or associate with

each other. The relevant inquiry is whether there is a shared characteristic or belief that

members share.

3. IS THE PERSECUTION OR FEARED PERSECUTION “ON ACCOUNT OF” THE

APPLICANT’S PARTICULAR SOCIAL GROUP MEMBERSHIP?

Even if an applicant establishes that he or she is a member of a particular social group,

the applicant must still establish that he or she was persecuted, or has a well-founded fear

of persecution, on account of his or her membership in the group. To determine whether

an applicant has established a nexus, you must elicit and consider all evidence, direct and

circumstantial, relevant to the motive of the persecutor.

Matter of M-E-V-G-, 26 I&N Dec. at 242 (disagreeing with the Ninth Circuit’s suggestion, in Henriquez-Rivas v. Holder, 707

F.3d 1081,1089 (9th Cir. 2013), that the perception of the persecutor may matter the most).

Id.

Matter of C-A-, 23 I&N Dec. 951,956 (BIA 2006); see Henriquez-Rivas v. Holder, 707 F.3d 1081, 1097 (9th Cir. 2013)

(acknowledging that the Board does not require members of a particular social group to share a voluntary associational

relationship); Hernandez-Montiel v. INS, 225 F.3d 1084, 1092-93 (9th Cir. 2000) (holding that a particular social group “is one

united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the

identities or consciences of its members).

Matter of C-A-, 23 I&N Dec. at 957. See also Henriquez-Rivas v. Holder, 707 F.3d 1081, 1097 (9th Cir. 2013); UNHCR

Guidelines On International Protection: “Membership of a Particular Social Group", para. 15.

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You must keep this step in the analysis distinct from your determinations of 1) whether a

particular social group exists, and 2) whether the applicant is a member of the group. This

step in the process is the same analysis that you must conduct with any of the four other

protected grounds.

4. PRECEDENT DECISIONS (SPECIFIC GROUPS)

Below are summaries of precedent decisions that have identified certain groups that are

particular social groups and other groups that were found not to be particular social

groups based on the specific facts of the case. These examples are not an exhaustive list.

Since this area of law is evolving rapidly, it is important to be informed about current

cases and regulatory changes. It also is important to emphasize that these decisions were

limited to the records before the Board and courts. Unlike the appellate context where the

record is already developed, you have a duty to develop the record, eliciting testimony

and researching country conditions, news reports, laws, policies, and other evidence, to

determine whether a group is cognizable in the relevant society.

4.1 Family Membership

When analyzed on a case-by-case basis under the framework set out in this lesson plan, in

many cases a family may constitute a particular social group. This approach is consistent

with existing case law recognizing family as a “particular social group.” For instance, the

First Circuit has held that a family constitutes the “prototypical example” of a particular

social group. The court found a link between the harm the applicant experienced and his

family membership, and concluded that the harm experienced was persecution on account

of the applicant’s membership in a particular social group (his nuclear family).

The

Seventh Circuit has found that parents of Burmese student dissidents share a common,

immutable characteristic sufficient to constitute a particular social group.

The Fourth

Circuit has found that “family members of those who actively oppose gangs in El

Salvador by agreeing to be prosecutorial witnesses” is a viable particular social group

where evidence showed that street gang members often intimidate their enemies by

attacking those enemies’ families. The court found that “[t]he family unit – centered

See Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) (reiterating that “[i]t is an error . . . to assume that if a social group . . .

has been found non-cognizable in one society, it will not be cognizable in any society”); Matter of S-M-J-, 21 I&N Dec. 722, 729

(BIA 1997) (noting that the adjudicator has the duty to develop the record). As officers have limited ability to research country

conditions when interviewing refugee applicants abroad, IRAD generally provides guidance at pre-departure briefings regarding

particular social groups that have been recognized in certain regions. See International and Refugee Adjudications Supplement.

In addition, refugee adjudications take place abroad and outside of the jurisdiction of any federal circuit court of appeals.

Consequently, while case law on particular social groups may be informative in the refugee context, officers must ensure that

they have elicited sufficient testimony consistent with specific, relevant country conditions to support a social group-based claim

regardless of whether or not the particular social group has been recognized in circuit court case law.

Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993).

See Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998); see also Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997) (recognizing that

family could constitute a particular social group).

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around the relationship between an uncle and his nephew – possesses boundaries that are

at least as ‘particular and well-defined’ as other groups whose members have qualified

for asylum,” thus meeting the particularity requirement.

In analyzing whether a specific family group qualifies as a particular social group, the

shared familial relationship should be analyzed as the common trait that defines the

group. The immutability criterion can easily be satisfied. The right to have a relationship

with one’s family is fundamental, as it is protected by international human rights norms.

Also, familial relationships for the most part cannot be changed. Often, the determinative

question is whether the familial relationship also reflects social distinctions. That would

depend on the circumstances, including the degree and nature of the relationship asserted

to define the group and the cultural context that would inform how that type of

relationship is viewed by the society in question. The question here is not generally

whether a specific family is well-known in the society. Rather, the question is whether

the society perceives the degree of relationship shared by group members as so

significant that the society distinguishes groups of people based on that type of

relationship.

In most societies, for example, the nuclear family would qualify as a particular social

group, while those in more distant relationships, such as second or third cousins, may not.

In other societies, however, extended family groupings may have greater social

significance, such that they could meet the “social distinction” element.

You should

carefully analyze this issue in light of the nature and degree of relationship within the

family group and pay close attention to country of origin information about social

attitudes toward family relationships.

It is important to keep in mind that it is the family membership itself that forms the basis

for the particular social group. A case that at first glance may appear to be a personal

dispute may satisfy the nexus requirement with regard to family members; it is not

necessary that the persecutor have initially targeted the family on account of a different

protected characteristic. For example, the persecutor may target the applicant to seek

revenge on a family member with whom the persecutor has a personal dispute. Where the

persecutor is motivated to harm the victim because of the victim’s family membership,

the targeting is not in fact because of a personal dispute with the applicant or for revenge

against the applicant.

Crespin-Valladares v. Holder, 632 F.3d 117, 125-26 (4th Cir. 2011) (reversing BIA’s rejection of particular social group

comprised of family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses).

Matter of H-, 21 I&N Dec. 337, 342-43 (BIA 1996) (indicating that a Somali clan or subclan represents a familial-type

relationship that is socially distinct).

See, e.g., Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015) (“Hernandez’s relationship to her son is why she, and

not another person, was threatened with death if she did not allow him to join Mara 18, and the gang members’ demands

leveraged her maternal authority to control her son’s activities. The BIA’s conclusion that these threats were directed at her not

because she is his mother but because she exercises control over her son’s activities draws a meaningless distinction under these

facts. It is therefore unreasonable to assert that the fact that Hernandez is her son’s mother is not at least one central reason for

her persecution.”); Cordova v. Holder, 759 F.3d 332, 339 (4th Cir. 2014) (“The BIA certainly did not err in holding that Aquino

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In many cases, multiple members of a family may have been threatened or targeted by the

same persecutor, and there may be evidence that the persecutor may have been motivated

both by the applicant’s family membership and by other factors. You must determine

whether the applicant’s family membership was a sufficient part of the persecutor’s

motive to meet the nexus standard.

In Aldana-Ramos v. Holder, for example, the First Circuit considered a case in which two

brothers applied for asylum after their father, a successful business owner, was kidnapped

for ransom by members of a criminal gang in Guatemala. Although the brothers paid the

ransom, their father was killed, and they continued to receive threats from the gang. The

First Circuit reversed the Board’s conclusion that the brothers had been threatened solely

on the basis of wealth and held that the Board had erred by failing to consider the

applicants’ contention that they had been targeted on account of their membership in their

immediate family.

It remanded the case to the Board for further consideration of

whether the applicants’ family membership was “one central reason” they had been

targeted as required for them to be eligible for asylum.

In Perlera-Sola v. Holder, by

contrast, the First Circuit upheld the Board’s determination that a Guatemalan applicant

had not met his burden to show that his family membership was a central reason for the

harm he suffered where the applicant had, along with several members of his family,

been attacked and threatened by unknown criminals because of their perceived wealth.

4.2 Clan Membership

A clan is an extended family group that has been found to be a particular social group.

The BIA has held that membership in a Somali sub-clan may form the basis of a

particular social group.

In 1993, the Immigration and Naturalization Service (INS)

Office of the General Counsel issued a legal opinion that a Somali clan may constitute a

particular social group.

Although extended family groups may not always be recognized

as particular social groups, in the Somali context, a clan is a discrete group, whose

members are linked by custom and culture.

Clan members also are usually identifiable

within their countries of origin as members of their clan.

[Cordova]’s cousin and uncle were targeted because of their membership in a rival gang and not because of their kinship ties. But

that holding does not provide a basis for concluding that MS–13 did not target Aquino on account of his kinship ties to his cousin

and uncle.”).

Aldana-Ramos v. Holder, 757 F.3d 9, 18-19 (1st Cir. 2014).

Id. at 19.

Perlera-Sola v. Holder, 699 F.3d 572, 576-577 (1st Cir. 2012).

Matter of H-, 21 I&N Dec. at 338 (BIA 1996).

Paul W. Virtue, INS Office of General Counsel, Whether Somali Clan Membership May Meet the Definition of Membership in

a Particular Social Group under the INA, Memorandum to Kathleen Thompson, Director, Refugee Branch, OIA (Washington,

DC: 9 December 1993).

Matter of H-, 21 I&N Dec. 337, 342-43 (BIA 1996); Malonga v. Mukasey, 546 F.3d 546 (8th Cir. 2008) (concluding that Lari

ethnic group of the Kongo tribe is a particular social group for purposes of withholding of removal; members of the tribe share a

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4.3 Age

The Board noted in Matter of S-E-G- that a particular social group may be valid where

the age of the members is one of the shared characteristics. The Board stated that

although age is not strictly immutable, it may give rise to a particular social group since

“the mutability of age is not within one’s control and … if an individual has been

persecuted in the past on account of an age-described particular social group, or faces

such persecution at a time when that individual’s age places him within the group, a

claim for asylum may still be cognizable.”

In other words, in the context of age-based

particular social groups, you should consider the immutability of age at the time of the

events of past persecution or at the time the applicant expresses a fear of future

persecution.

Several Board and circuit court cases have addressed the validity of using age, in

conjunction with other characteristics, as the basis for a particular social group. The

Board and some courts have rejected social groups composed of young, urban males who

feared either conscription by the military or forcible recruitment by guerrillas.

In those

cases, the persecutors targeted the young men because they were desirable combatants. It

appears that the courts rejected the claims because of the applicants’ failure to establish

the requisite motive (“on account of”), and not because of their failure to establish

membership in a valid particular social group.

The Third Circuit, in Lukwago v. Ashcroft, noted that age changes over time, “possibly

lessening its role in personal identity.” The court further noted that children as a class

represent a large and diverse group, suggesting that the class is not particular enough.

Nevertheless, age did make up an important component in the particular social group

based on the applicant’s shared past experience in Lukwago. The court held that “former

child soldiers who escaped [Lord’s Resistance Army] enslavement” were a particular

social group at risk of persecution by the LRA and the Ugandan government because they

could not undo the shared past experience of being child soldiers.

The immutability of age was also taken into account by the Seventh Circuit in

considering a case involving an Albanian woman who feared being trafficked in the

future due to her youth, gender, and living alone. The court stated, “the Petitioner is part

of a group of young Albanian women who live alone. Neither their age, gender,

nationality, or living situation are alterable.”

Without considering the Board’s

common dialect and accent, which is recognizable to others in Congo, and members are identifiable by their surnames and by

their concentration in southern Congo's Pool region).

Matter of S-E-G-, 24 I&N Dec. 579, 583-84 (BIA 2008).

Matter of Vigil, 19 I&N Dec. 572 (BIA 1988); Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986); Matter of Sanchez and

Escobar, 19 I&N Dec. 276 (BIA 1985); see also Civil v. INS, 140 F.3d 52 (1st Cir. 1998); Matter of S-E-G-, 24 I&N Dec. 579

(BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008).

Lukwago v. Ashcroft, 329 F.3d 157, 178 (3d Cir. 2003).

Cece v. Holder, 733 F.3d 662, 673 (7th Cir. 2013) (en banc).

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requirements of social distinction and particularity, the Seventh Circuit held, “These

characteristics qualify Cece’s proposed group as a protectable social group under asylum

law.”

4.4 Gender

Gender is an immutable trait and has been recognized as such by the BIA and some

federal courts.

Courts have not yet addressed whether broad social groups based solely

on an applicant’s gender may meet the “particularity” and “social distinction”

requirements as outlined in M-E-V-G- and W-G-R-,

but some earlier circuit court

decisions have indicated that gender may form the basis of a particular social group in

combination with the applicant’s nationality or ethnicity and that there may be a nexus

between an applicant’s membership in that group and the harm he or she fears.

In most cases, though, an applicant’s status as a man or woman is not, by itself, a central

reason motivating the persecutor to harm him or her. Rather, the persecutor is motivated

to harm him or her based on membership in a group defined by gender in combination

with some other characteristic he or she possesses, such as a person’s social status in a

domestic relationship.

In general, you will formulate gender-related particular social

groups based on gender, nationality and/or ethnicity, and at least one other relevant trait

or characteristic. The following sections discuss some of the common gender-related

particular social groups.

4.4.1 Female Genital Mutilation (FGM)

FGM cases also raise gender-related issues. In Matter of Kasinga, the BIA held that

gender, in conjunction with other characteristics, formed the basis of a particular social

group. The BIA granted asylum to the applicant, who feared persecution on account of

her membership in the particular social group defined as “young women of the Tchamba-

Id.

See, e.g., Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) (listing “sex” as a paradigmatic example of an immutable

characteristic); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993); Matter of Kasinga, 21 I&N Dec. 357, 365-66 (BIA 1996).

See Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (remanding to the BIA for consideration of whether the proposed social

groups of “young Albanian women” or “young Albanian women between 15 and 25” are proposed social groups under the M-E-

V-G- framework).

See Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005) (finding that “gender plus tribal membership” may identify a

social group); Mohammed v. Gonzales, 400 F.3d 785, 797 (“the recognition that girls or women of a particular clan or nationality

(or even in some circumstances females in general) may constitute a social group is simply a logical application of our law”);

Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007). See also Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993); Bah v.

Mukasey, 528 F.3d 99, 112 (2d Cir. 2008); Perdomo v. Holder, 611 F.3d 662, 668 (9th Cir. 2010).

See, e.g., Cece v. Holder, 733 F.3d 662, 676 (7th Cir. 2013) (en banc) (finding that the petitioner had a well-founded fear of

persecution on account of her membership in a particular social group of “young Albanian women living alone” and noting that

“the social group is defined by gender plus one or more narrowing characteristics.”).

Sometimes referred to as female genital cutting.

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Kunsuntu Tribe who have not had female genital mutilation, as practiced by that tribe,

and who oppose the practice.”

Case law has taken a variety of approaches to defining a particular social group in cases

involving FGM. As stated in the Attorney General’s decision on certification in Matter of

A-T-, the framework for analyzing such cases depends in critical ways on how the group

is formulated.

In FGM cases, you should consider whether the relevant social group should be defined

as females of a certain nationality or ethnicity who are subject to gender-related cultural

traditions. For additional guidance on FGM cases in the asylum context, see RAIO

Training Module, Well-Founded Fear.

Eligibility Based on Feared FGM of Applicant’s Children

In Matter of A-K-, the BIA made clear that an applicant cannot establish eligibility for

asylum based solely on a fear that his or her child would be subject to FGM if returned to

the country of nationality. The persecution an applicant fears must be on account of the

applicant’s protected characteristic (or protected characteristic imputed to the applicant).

When a child is subjected to FGM, it is generally not because of a parent’s protected

characteristic. Rather, the FGM is generally imposed on the child because of the child’s

characteristic of being a female who has not yet undergone FGM as practiced by her

culture.

If the child of an applicant were specifically targeted for FGM in order to harm the parent

because of the parent’s opposition to FGM, it might be possible to establish a nexus to

the parent’s membership in a particular social group defined as parents who oppose

FGM, if that group, viewed in the applicant’s society, meets the requirements to be

considered a particular social group.

More simply, however, in most cases involving

parent(s) who oppose FGM, the claim would fit better within a political opinion analysis.

Accordingly, you should first explore any evidence that supports whether the persecutor

may seek to harm the parent on account of his or her political opinion.

4.4.2 Widows

A group consisting of widows from a country is another potential gender-related

particular social group. The Eighth Circuit has held that a group consisting of

Cameroonian widows is a cognizable particular social group.

The court reasoned that

Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996).

Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008).

Matter of A-K-, 24 I&N Dec. 275 (BIA 2007).

Gatimi v. Holder, 578 F.3d 611, 617 (7th Cir. 2009).

Ngengwe v. Mukasey, 543 F.3d 1029, 1034-35 (8th Cir. 2008); see also Sibanda v. Holder, 778 F.3d 676, 681 (7th Cir. 2015)

(noting, in a case involving a widowed applicant who was expected to marry her deceased husband’s brother, that her “proposed

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widows share the past experience of losing a husband—an experience that cannot be

changed. The court also found that Cameroonian society perceives widows as a distinct

group, noting the pervasiveness of discrimination against widows.

In cases involving

widows, social distinction also may be demonstrated by laws providing benefits to

widows, government or non-governmental programs specifically targeted to widows,

testimony, or any other relevant evidence. Although the Eighth Circuit did not analyze

particularity, a group comprised of widows seems to be defined with precision, such that

it is clear who falls within the group: widowhood does not contain various permutations,

as one is either widowed or not widowed.

4.4.3 Gender-Specific Dress Codes

Where refusal to abide by gender-specific dress codes could result in serious punishment

or consequences, an applicant may establish that treatment resulting from his or her

noncompliance amounts to persecution on account of membership in a particular social

group.

Both the Third Circuit, in Fatin v. INS, and the Eighth Circuit, in Safaie v. INS, stated that

Iranian women who would refuse to conform to the country’s gender-specific laws may

constitute a particular social group. However, neither applicant in the cases before those

courts established that she was a member of such a group, because each applicant failed

to demonstrate that she would refuse to comply with the gender-specific laws.

In Fatin, the Third Circuit found the applicant to be a member of the particular social

group of “Iranian women who find their country’s gender-specific laws offensive and do

not wish to comply with them.”

The court examined whether, for this applicant,

compliance with the laws would be so abhorrent to her that wearing the chador would

itself be tantamount to persecution. Because the applicant testified that she would only try

to avoid compliance and did not testify that wearing the chador would be abhorrent to

her, the court concluded that the applicant had not established that her compliance with

the gender-specific laws was so abhorrent to her such that it could be considered

persecution.

Similarly, the Seventh Circuit in Yadegar-Sargis v. INS considered whether an applicant

who established her membership in the particular social group of “Christian women in

Iran who do not wish to adhere to the Islamic female dress code” would suffer

persecution by her compliance with the dress code. Looking to Fatin for guidance, the

court found that because the applicant did not testify that compliance with the dress code

violated a tenet of her Christian faith and testified that she was not prevented from

social group – married women subject to the bride-price custom – appears to fall easily within this court’s established definition

of particular social group”).

Id.

Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir. 1993); Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994).

Fatin, 12 F.3d at 1241-42.

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attending church or practicing her faith when she complied with the dress code, the

evidence could be interpreted such that the dress requirements were “not abhorrent to [the

applicant’s] deepest beliefs.”

The issue in this case did not turn on whether the group

constituted a particular social group, but rather on whether forced compliance with dress

codes constituted persecution.

4.5 Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI)

Persecution on account of sexual orientation constitutes persecution on account of

membership in a particular social group. The Board found that a gay male in Cuba who

was harmed on account of his homosexuality was persecuted on account of his

membership in a particular social group.

In that case, where the applicant was registered

as “homosexual” by the Cuban government, the Board found that the applicant was being

targeted because of his status as a gay man, and that this status defined a particular social

group.

A persecutor’s perception of an applicant as a sexual minority can be established

by a variety of types of evidence. For example, harm an applicant experiences because he

or she engages in intimate sexual activity with a consenting adult of the same sex may

constitute persecution on account of membership in a particular social group defined by

its members’ actual or imputed sexual minority status.

The Ninth Circuit has held that gay men with female sexual identities in Mexico

constitute a particular social group.

The court held that the applicant’s female identity

was immutable because it was an inherent characteristic. In Matter of M-E-V-G-, the

Board emphasized that a gay male applicant does not need to be literally visible to

society; instead the question is the extent to which the group is understood to exist as a

recognized component of society.

The Third Circuit, in Amanfi v. Ashcroft, recognized that harm suffered or feared on

account of an applicant’s perceived homosexuality, even where the applicant is not gay,

could be sufficient to establish past or future persecution on account of an imputed

membership in a particular social group.

For more information, see RAIO Training Module, Guidance for Adjudicating LGBTI

Refugee and Asylum Claims.

Yadegar-Sargis v. INS, 297 F.3d 596, 604-605 (7th Cir. 2002).

Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822-23 (BIA 1990) (designated by the Attorney General as a precedent decision

on June 16, 1994); see also Boer-Sedano v. Gonzales, 418 F.3d 1082, 1089 (9th Cir. 2005).

Toboso-Alfonso, 20 I&N Dec. at 821.

See Karouni v. Gonzales, 399 F.3d 1163, 1173 (finding “no appreciable difference between an individual…being persecuted

for being a homosexual and being persecuted for engaging in homosexual acts”).

Hernandez-Montiel v. INS, 225 F.3d 1084, 1094-95 (9th Cir. 2000).

Matter of M-E-V-G-, 26 I&N Dec. 227, 238-39 (BIA 2014).

Amanfi v. Ashcroft, 328 F.3d 719, 730 (3d Cir. 2003).

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4.6 Domestic Violence

4.6.1 Women Who Are Unable to Leave a Domestic Relationship or Women Who Are

Viewed as Property by Virtue of their Position within a Domestic Relationship

The Board has addressed the issue of “whether domestic violence can, in some instances,

form the basis for a claim of asylum.”

100

In Matter of A-R-C-G-, the applicant married at

the age of 17 and suffered physical and sexual abuse by her husband. The respondent

repeatedly attempted to leave the relationship by staying with relatives, but her husband

continued to find her and threaten her.

101

Based on these facts, the group before the Board

was articulated as “married women in Guatemala who are unable to leave their

relationship.” The Board found that the proposed group satisfied the three necessary

criteria. It was immutable because it involved gender and a marital status that the

applicant could not change.

102

The Board also found that the group was defined with

particularity, as the terms “married,” “women,” and “unable to leave the relationship”

have commonly accepted definitions within Guatemalan society. The Board noted that

evidence of social distinction for women in marriages they cannot leave would include

“whether the society in question recognizes the need to offer protection to victims of

domestic violence, including whether the country has criminal laws designed to protect

domestic abuse victims, whether those laws are effectively enforced, and other

sociopolitical factors.”

103

Although the specific facts in A-R-C-G- involved a married woman, the absence of a

formal marriage does not defeat the cognizability of the group if the domestic

relationship (or imputed relationship) that gives rise to a group meets all three criteria. As

the Board stated, the group “must be evaluated in the context of the evidence presented

regarding the particular circumstances in the country in question.”

104

For instance, even in

the absence of a formal marriage, there may be a valid particular social group. DHS’s

brief to the Board in Matter of L-R-, another case that involved domestic violence, noted

that the groups of women unable to leave a domestic relationship or women who are

viewed as property by virtue of their positions within a domestic relationship could be

cognizable particular social groups.

105

L-R- involved a woman who, although not married,

was in a domestic relationship for two decades. This brief, which continues to represent

the DHS position, argued that under these two social group formulations, an applicant’s

status within a domestic relationship is immutable where the applicant is economically,

socially, or physically unable to leave the abusive relationship, or where “the abuser

100

Matter of A-R-C-G-, 26 I&N Dec. 388, 390 (BIA 2014).

101

Id. at 389.

102

Id. at 392-93.

103

Id. at 394.

104

Id. at 392.

105

DHS’s Supplemental Brief in Matter of L-R-, April 13, 2009.

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would not recognize a divorce or separation as ending the abuser’s right to abuse the

victim.”

106

The particularity requirement for either of these groups can be established by a showing

that the domestic relationship has a clear definition.

107

The L-R-brief also emphasized that

the term domestic relationship could be “tailored to the unique situation” in the

applicant’s society.

4.6.2 Other Types of Domestic Relationships

Of course, abuse serious enough to amount to persecution can also occur within other

domestic relationships. Where claims are based on assertions of harm within a

relationship that is not spousal or spouse-like, the adjudicator must identify the

relationship, and determine whether such a relationship is a domestic relationship. Once

the relationship is determined to be a domestic relationship, you can assess whether the

applicant is a member of a cognizable particular social group similar to the ones

discussed in the previous section. If you determine that the applicant is a member of a

cognizable group, of course, the applicant must also establish a nexus and the other

requirements for asylum or refugee status.

In Ming Li Hui v. Holder, for example, the Eighth Circuit addressed an asylum

applicant’s claim for asylum based on physical and emotional abuse by her mother.

108

that case, the applicant asserted that “her mother severely abused her as a child ‘because

she hated girl[s].’ The abuse included the mother burning her hand with a cigarette butt,

withholding food, calling her ‘trash, garbage,’ and telling her she ‘wish[ed] you'd die

soon.’

109

The applicant also testified that at the age of 20, she got a job that paid well

enough for her to be able to leave the home and escape the abuse. She was able to live

away from her mother for five years, and although her mother threatened her during this

period, she did not harm the applicant.

110

The Eighth Circuit, without specific analysis,

accepted the applicant’s proposed particular social group of “Chinese daughters [who

are] viewed as property by virtue of their position within a domestic relationship.”

111

The

court concluded, however, that a fundamental change in circumstances rebutted the

presumption of a well-founded fear on account of her membership in that group because

106

Id. at n.12.

107

See id. at 19 (citing section 237(a)(2)(E)(1), which defines “crimes of domestic violence” to include offenses “against a person

committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an

individual who is cohabitating with or has cohabitated with the person as a spouse, by an individual similarly situated to a spouse

of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual

against a person who is protected from that individual’s acts under the domestic or family violence laws.”)

108

Ming Li Hui v. Holder, 769 F.3d 984 (8th Cir. 2014).

109

Id. at 985.

110

Id.

111

Id. at 985-86.

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the applicant testified that she had only been abused when she lived with her mother, and

not after she was able to leave her mother’s household.

112

4.6.3 Children in Domestic Relationships

As reflected in the decision in Ming Li Hui, claims involving child abuse can involve

some of the same dynamics of power and impunity as claims involving other kinds of

domestic violence. In some cases, a child’s vulnerable status and lack of protection

within the family and society may make a persecutor believe that he or she can harm the

child with impunity and is entitled to do so, which in combination may form a significant

part of the persecutor’s motivation. In analyzing a child abuse case, you, following the

proposed group before the court in Ming Li Hui and one of the groups analyzed in DHS’s

brief in Matter of L-R-, could formulate the particular social group as [nationality]

children who are viewed as property by virtue of their position within a domestic

relationship.

All claims require case-by-case analysis, but it is generally established in precedent that

when persecution is suffered or feared on account of a characteristic that includes being a

child, that characteristic is immutable within the meaning of Acosta. This is because a

child cannot change his or her age at the time of persecution.

113

Similarly, a child is

typically unable to leave the family or other domestic relationship in which the child is

situated, due to the inherent dependency of minors as well as the established legal and

cultural expectations in most societies that children are subordinate to the authority of

their parents or other adults acting in the role of parents.

114

A child is not expected to

leave his or her family.

In child abuse cases, social distinction could be established by evidence such as the

existence of laws that are designed to protect children from domestic abuse, programs to

assist such children, reports about the prevalence of domestic violence and prosecution of

domestic violence or lack of prosecution, or other evidence that members of this group

are distinguished from others in the society in which they live.

115

Additionally, although

past persecution by itself cannot be used to define a particular social group, a group’s

112

Id. at 986. Note that the fundamental change in circumstances analysis would not apply to refugee resettlement cases, as the

past persecution, by itself, would be sufficient to establish a claim. For asylum cases, the assessment of what would constitute a

fundamental change in circumstances under such an analysis would be specific to the facts of each case.

113

See Matter of S-E-G-, 24 I&N Dec. 579, 583-84 (BIA 2008).

114

Cf. Matter of A-R-C-G-, 26 I&N Dec. 388, 393 (BIA 2014) (In the separate context of intimate partner domestic violence,

discussing the definable boundaries of a group involving married women unable to leave the relationship, noting “that a married

woman’s inability to leave the relationship may be informed by societal expectations about gender and subordination, as well as

legal constraints regarding divorce and separation.”).

115

See id. at 394 (for a particular social group of married Guatemalan women who are unable to leave the relationship, noting

that evidence of social distinction “would include whether the society in question recognizes the need to offer protection to

victims of domestic violence, including whether the country has criminal laws designed to protect domestic abuse victims,

whether those laws are effectively enforced, and other sociopolitical factors.”)

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being subjected to harm is a good indication that it is socially distinct.

116

At the same

time, social distinctions do not have to be discriminatory or punitive. Many of the ways

in which society distinguishes children are benign or are intended to protect them.

The group of children who are viewed as property by virtue of their position within a

domestic relationship also can be described with sufficient particularity because it is

possible to determine who falls within the group: they are (1) minors

117

(2) who fall

within the boundaries of a domestic relationship, and (3) are treated and perceived as

property because of their subordinate status within that relationship.

118

As noted by the

Board in examining the particularity of a group involving violence within the domestic

relationship, “the terms can combine to create a group with discrete and definable

boundaries.”

119

Even where an applicant whose claim is based on child abuse can establish membership

in a cognizable particular social group, all the other eligibility requirements must also be

met. The dynamics of domestic relationships between children and their parents or other

parental figures are different from the dynamics of domestic relationships between adults.

In claims involving child abuse, nexus must be analyzed in the context of a parent’s role

(or that of another person acting in a parental capacity) in raising a child. The relevance

of power and authority of an adult over a child is assessed differently than in the context

of adult domestic partnerships. Strong deference is generally shown to parents in

determining the child’s best interests. Where a parent or person acting in a parental

capacity is motivated by legitimate disciplinary or child-rearing goals and the discipline

is reasonable in degree, the punishment is not on account of a protected ground. Only

where harm is clearly inflicted for purposes other than discipline or other legitimate

child-rearing goals or is clearly disproportionate to such goals could it objectively

constitute persecution on account of a protected ground. Factors that may indicate that the

harm is not legitimately related to discipline or other child-rearing goals (and hence there

may be persecution and a nexus to a protected ground) could be: (1) where the harm

inflicted is clearly disproportionate or unrelated to any child-rearing goal; (2) where the

abuse is coupled with repeated remarks devaluing the child; or (3) where the abuser tries

to cover up the abuse. Rape is an example of harm that would never further a legitimate

child-rearing goal.

116

Matter of C-A-, 23 I&N Dec. 951 (BIA 2006); see also Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74 (BIA 2007) (“the

fact that its members have been subjected to harm...may be a relevant factor in considering the group's visibility in society”).

117

The Convention on the Rights of the Child defines children as individuals under the age of 18, and provides a benchmark for

determining who is a minor.

118

Cf. Matter of A-R-C-G-, 26 I&N Dec. at 393 (In the separate context of intimate partner domestic violence, discussing the

definable boundaries of a group involving married women unable to leave the relationship, noting “that a married woman’s

inability to leave the relationship may be informed by societal expectations about gender and subordination, as well as legal

constraints regarding divorce and separation.”).

119

Id.

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In the asylum context, in cases where the applicant has been found to have suffered past

persecution based on his or her membership in a particular social group related to

domestic violence, it is necessary to assess whether there is a fundamental change in

circumstances or a reasonable possibility of internal relocation to rebut the presumption

of well-founded fear. When an applicant is a child at the time of the asylum interview, the

applicant remains dependent on caregivers, potentially including former abusers, and

there is no obvious fundamental change in circumstances that rebuts the presumption of a

well-founded fear, and children are not expected to relocate outside of the family. In such

cases, you will generally find that the applicant is a member of a particular social group

consisting of children who are viewed as property because of their position within a

domestic relationship. If the applicant suffered past persecution within a domestic

relationship and the applicant is no longer a child at the time of the asylum interview, you

should examine whether the applicant continues to be viewed as property because of his

or her position within a domestic relationship, such as due to being a daughter or son in

the domestic relationship or a female or male in the domestic relationship.

In such cases, you will need to thoroughly analyze whether there has been a fundamental

change in circumstances due to the applicant no longer being a child or whether the

applicant could safely and reasonably relocate outside of the domestic relationship. Once

an applicant is an adult, the conditions that created his or her subordinate and vulnerable

status at the time the applicant was harmed may have fundamentally changed.

120

You

must elicit testimony and review country conditions to determine whether there are

specific facts showing that the dynamics of power and control within the relationship had

fundamentally changed. Among other things, you must analyze whether the applicant can

live independently and safely outside of the domestic relationship considering the

applicant’s age, economic resources, marriage, or other reasons.

121

In some

circumstances, the harm to the applicant may have begun when he or she was a child and

continued into adulthood, and the applicant continued to be in a subordinate and

vulnerable status. In such circumstances, there would generally not be a fundamental

change in circumstances.

4.7 Ancestry

The Board has found that “Filipinos with Chinese ancestry” could define a particular

social group, because of the immutability of the characteristic.

122

Note that this protected

characteristic can also be appropriately analyzed under the nationality or race protected

grounds.

120

Cf. Ming Li Hui v. Holder, 769 F.3d 984 (8th Cir. 2014) (finding, in examining another proposed group involving the parent-

child relationship, that there had been a fundamental change in circumstances because Hui, as an adult, could control whether she

lived with her mother).

121

If the presumption of well-founded fear is rebutted, you must complete a Chen analysis to determine whether an exercise of

discretion to grant asylum may be warranted. Similarly, you must consider whether there is a reasonable possibility of other

serious harm.

122

Matter of V-T-S, 21 I&N Dec. 792, 797 (BIA 1997).

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4.8 Individuals with Physical or Mental Disabilities

In an opinion later vacated and remanded by the Supreme Court, the Ninth Circuit held in

Tchoukhrova v. Gonzales that Russian children with serious disabilities that are long-

lasting or permanent constitute a particular social group. The court reserved the question

of whether individuals with disabilities from any country would constitute a particular

social group, but found that in Russia, children with disabilities constitute a specific and

identifiable group, as evidenced by their “permanent and stigmatizing labeling, lifetime

institutional[ization], denial of education and medical care, and constant, serious, and

often violent harassment.”

123

The Supreme Court vacated the Ninth Circuit’s opinion in Tchoukhrova v. Gonzales, so

this opinion is no longer precedent. However, the concerns with the case that were raised

on appeal were unrelated to the formulation of the particular social group. The particular

social group formulation in the Ninth Circuit’s opinion is consistent with USCIS’s

interpretation. The Asylum Division has granted asylum to people with disabilities when

the applicant established that he or she was persecuted in the past or would be persecuted

in the future on account of his or her membership in a particular social group, defined as

individuals who share those disabilities. The proper analysis is whether 1) the disability is

immutable; 2) persons who share that disability are socially distinct in the applicant’s

society; and 3) the group is particularly defined.

More recently, in Temu v. Holder, the Fourth Circuit held that individuals with bipolar

disorder, who exhibit erratic behavior, can constitute a viable particular social group.

124

The applicant credibly testified that he was persecuted by nurses and prison guards

because of his illness. The court concluded that the Board’s decision, finding no

particular social group, was “manifestly contrary to the law and an abuse of discretion.”

125

Using the term “social visibility,” but essentially applying the social distinction test, the

court found that the petitioner “appears to have a strong case for social visibility,” as

Tanzanians with severe mental illnesses are singled out for abuse in hospitals and prisons

and are labeled “mwenda wazimu.”

126

The court also rejected the Board’s reasoning that

if a persecutor targets an entire population (“the persecutor’s net is too large”), “social

visibility” must be lacking. The court highlighted that the “folly of this legal conclusion

can be demonstrated with a hypothetical,” specifically to assume “that an anti-Semitic

government decides to massacre any Jewish citizens [and] 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

123

Tchoukhrova v. Gonzales, 404 F.3d 1181, 1189 (9th Cir. 2005), reh’g and reh’g en banc denied, 430 F.3d 1222 (9th Cir.

2005), vacated, 127 S.Ct. 57 (U.S. 2006).

124

Temu v. Holder, 740 F.3d 887, 892-96 (4th Cir. 2014).

125

Id. at 892.

126

Id. at 893.

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alike might be murdered, but this does not change the fact that Jews have social visibility

as a group.”

127

The court in Temu also rejected the Board’s analysis related to particularity, noting that

the Board “missed the forest for the trees.”

128

Specifically, the Board “erred because it

broke down [the petitioner’s] group into pieces and rejected each piece, rather than

analyzing his group as a whole.” The court recognized that a group characterized as

people with “mental illnesses” without additional defining characteristics might lack

particularity, as the group would cover “a huge swath of illness that ranges from life-

ending to innocuous.”

129

Similarly, the court recognized that “erratic behavior,” by itself,

would likely lack particularity. The petitioner’s group, however, did not “suffer from the

same shortcoming” because his group was defined by people who exhibit erratic behavior

and who suffer from bipolar disorder.

130

The court emphasized that the group as a whole

must be analyzed for particularity. Finally, the court found that the proposed group

“easily satisfies” the immutability requirement, as there is no cure for bipolar disorder

and the petitioner would be unable to access medication to control his disorder.

131

The Seventh Circuit also has held that mental illness can form the basis of a valid

particular social group, disagreeing with the BIA’s finding that mental illness is not a

basis for a particular social group in that case because it is not immutable.

132

4.9 Unions

In Matter of Acosta, a case that involved a member of a Salvadoran taxi cooperative, the

BIA considered a social group with the defining characteristics of “being a taxi driver in

San Salvador and refusing to participate in guerrilla-sponsored work stoppages.”

133

The

BIA found that neither characteristic was immutable, because the members of the group

could either change jobs or cooperate in work stoppages. However, the BIA did not

address whether being a member of a cooperative or union is a characteristic an

individual should not be required to change.

The Fifth Circuit, in Zamora-Morel v. INS, assumed without deciding that a trade union

may constitute a particular social group. The court held that the applicant was not

127

Id. at 894.

128

Id. at 895.

129

Id.

130

Id.

131

Id. at 896-97.

132

Kholyavskiy v. Mukasey, 540 F.3d 555, 572-73 (7th Cir. 2008). While the Eighth Circuit found that the groups of “mentally ill

Jamaicans” or “mentally ill female Jamaicans” do not constitute a particular social group because the members of the group are

not “a collection of people closely affiliated with each other, who are actuated by some common impulse or purpose,” Raffington

v. INS, 340 F.3d 720, 723 (8th Cir. 2003), the Board rejected the need for cohesiveness or a voluntary associational relationship

in its decision in Matter of C-A-, 23 I&N Dec. 951, 956-57 (BIA 2006).

133

Matter of Acosta, 19 I&N Dec. 211, 234 (BIA 1985).

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persecuted and did not have a well-founded fear on account of his membership in the

union, analyzing the case as if the union was a particular social group.

134

Depending on the facts, cases involving union membership, labor disputes, or union

organizing also may be analyzed under political opinion.

4.10 Students and Professionals

Courts have held that particular social groups of students are either not cognizable

particular social groups,

135

or that the harm applicants suffered was not on account of their

membership in student groups.

136

These holdings do not preclude a finding that a specific,

identifiable group of students could constitute a particular social group.

The First Circuit has recognized that persons who are associated with a former

government, members of a tribe, and educated or professional individuals could be

members of a social group.

137

On the other hand, the Board has rejected a particular social

group where the applicant, who was a former government soldier, testified that guerrillas

targeted him due to his expertise as an artillery specialist.

138

The Second Circuit has

determined that a particular social group of experts in computer science “was not

cognizable because its members possess only ‘broadly-based characteristics.’”

139

4.11 Small-Business Owners Indebted to Private Creditors

The Tenth Circuit held in Cruz-Funez v. Gonzales that being indebted to the same

creditor is not the kind of group characteristic that a person either cannot change or

should not be required to change.

140

Therefore, the court concluded that the applicants in

that case could not establish that they were members of a cognizable particular social

group.

4.12 Landowners

The Seventh Circuit has found that the “educated, landowning class” in Colombia who

had been targeted by the Revolutionary Armed Forces of Colombia (FARC) constituted a

particular social group for asylum purposes. The court distinguished the situation in

Colombia from other situations where the risk of harm flowing from civil unrest affects

134

Zamora-Morel v. INS, 905 F.2d 833, 838 (5th Cir. 1990).

135

Civil v. INS, 140 F.3d 52, 56 (1st Cir. 1998) (social group of pro-Aristide young students is not cognizable because it is

overbroad).

136

Matter of Martinez-Romero, 18 I&N Dec. 75, 79 (BIA 1981).

137

Ananeh-Firempong v. INS, 766 F.2d 621, 626-27 (1st Cir. 1985).

138

Matter of C-A-L-, 21 I&N Dec. 754, 756-57 (BIA 1997).

139

Delgado v. Mukasey, 508 F.3d 702, 704-05 (2d Cir. 2007).

140

Cruz-Funez v. Gonzales, 406 F.3d 1187, 1191 (10th Cir. 2005).

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“the population in a relatively undifferentiated way” and found that members of this

group were the “preferred victims” of the FARC.

141

The court further distinguished this group from groups based solely on wealth, a

characteristic that had been rejected as the basis of a particular social group when

considered alone by the BIA in Matter of V-T-S, because it included the members’ social

position as cattle farmers, their level of education, and their land ownership. These shared

past experiences were of a particular type that set them apart in society such that the

FARC would likely continue to target the group members, even if they gave up their

land, cattle farming, and educational opportunities.

142

In a separate case, the Seventh Circuit found that Colombian landowners who refuse to

cooperate with the FARC constituted a particular social group.

143

The Seventh Circuit

emphasized that “there can be no rational reason for the Board to reject a category of

‘land owners’ when the Board in Acosta specifically used land owning as an example of a

social group.”

144

The Board opined in Matter of M-E-V-G- that “in an underdeveloped, oligarchical

society,” a group of landowners may meet the particularity and social distinction

criteria.

145

If analyzing a claim involving landowners, the Board instructed adjudicators to

“make findings whether ‘landowners’ share a common immutable characteristic, whether

the group is discrete or amorphous, and whether the society in question considers

‘landowners’ as a significantly distinct group within the society.”

146

Additionally, the Ninth Circuit has held that landownership may form the basis of a

particular social group.

147

The court emphasized that “landownership [is] an illustrative

example of a characteristic that might form the basis of a particular social group.”

148

The

court also pointed out that both petitioners offered evidence suggesting that landowners

in their respective countries (Colombia and Mexico) are targets of persecution. One

petitioner offered country conditions showing that the FARC specifically targets

“wealthy landowners.” The other petitioner relied on testimony of a professor

141

Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005), citing Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir.

2003).

142

Id., citing Matter of V-T-S, 21 I&N Dec. 792, 799 (BIA 1997); cf. Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 75 (BIA

2007) (finding that the group of “affluent Guatemalans” was not sufficiently distinct in society to constitute a particular social

group. Country conditions indicated that “affluent Guatemalans” were not at greater risk of criminality or extortion in particular.)

See section on “Wealth or Affluence,” below, for further discussion and comparison to the “landowner” particular social group.

143

N.L.A. v. Holder, 744 F.3d 425, 439 (7th Cir. 2014).

144

Id.

145

Matter of M-E-V-G-, 26 I&N Dec. 227, 241 (BIA 2014).

146

Id.

147

Cordoba v. Holder, 726 F.3d 1106, 1114 (9th Cir. 2013).

148

Id.

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specializing in Latin American politics to show that the applicant’s family had been

established landowners in Mexico for generations and this was a significant factor in why

the applicant had been targeted by drug cartels.

149

4.13 Groups Based on “Wealth” or “Affluence”

In Matter of A-M-E- & J-G-U-, the BIA found that groups defined by wealth or socio-

economic levels alone often will not be able to establish that they possess an immutable

characteristic, because wealth is not immutable.

150

Wealth is, however, a characteristic

that an individual should not be required to change, and therefore could be considered

fundamental within the meaning of Acosta. In evaluating groups defined in terms of

wealth, affluence, class, or socio-economic level, you must closely examine whether the

proposed group can be defined with enough particularity and whether it is socially

distinct. In A-M-E- & J-G-U-, the BIA concluded that the proposed group failed the

particularity requirement, noting that the terms “wealthy” and “affluent” standing alone

fail to provide an adequate benchmark for determining group membership. To support its

particularity conclusion, the BIA stated that the concept of wealth is so indeterminate, the

proposed group could vary from as little as 1 percent to as much as 20 percent of the

population, or more.

151

In the context of the facts established in A-M-E & J-G-U-, the BIA rejected various

particular social group formulations involving wealth and socio-economic status for

failure to establish social visibility (or social distinction). The BIA stressed that this

analysis must take into account relevant country of origin information. Considering

Guatemalan country conditions, the BIA found a variety of groups failed as particular

social groups, including groups defined by “wealth,” “affluence,” “upper income level,”

“socio-economic level,” “the monied class,” and “the upper class.”

152

The BIA, however, did not reject altogether the possibility that a group defined by wealth

could constitute a particular social group. The court noted that these types of social

groups must be assessed in the context of the claim as a whole. For example, the Board

opined that such a group might be valid in a case where persecutors target individuals

within certain economic levels.

153

The BIA’s emphasis on social context is consistent with the Seventh Circuit’s approach

in Tapiero de Orejuela v. Gonzales, where members of the “educated, landowning class”

in Colombia were recognized as members of a particular social group. Although

affluence was a shared trait for this group, group members also shared a distinctive social

149

Id. at 1114-15.

150

Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 76 (BIA 2007).

151

Id.

152

Id.

153

Id.

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status (albeit one derived in significant part from affluence and the attributes of

affluence) that made them preferred targets of the FARC.

154

The significance of this

social status was evident when the claim was viewed in the context of the country

conditions that showed that the FARC is a “leftist guerilla group that was originally

established to serve as the military wing of the Colombian Communist Party” and that

membership in an economic class, not merely “wealth,” was an important motivating

factor for them.

155

When encountering claims involving particular social groups based in whole or in part on

wealth, you must assess the viability of the particular social group asserted in each case

and carefully consider relevant country of origin information and other relevant evidence

to determine if the group constitutes a particular social group as defined by the BIA and

other courts. As the Seventh Circuit pointed out, “[t]here may be categories so ill-defined

that they cannot be regarded as groups-the ‘middle class,’ for example. But this problem

is taken care of by the external criterion-if a Stalin or a Pol Pot decides to exterminate the

bourgeoisie of their country, this makes the bourgeoisie ‘a particular social group,’ which

it would not be in a society that didn't think of middle-class people as having distinctive

characteristics; it would be odd to describe the American middle class as ‘a particular

social group.’”

156

4.14 Present or Former Employment in Either Law Enforcement or the Military

When an applicant asserts membership in a particular social group that involves either

past or present service as a police officer or soldier, you must first determine whether, in

the context of the applicant’s society, persons employed, or formerly employed, as police

officers or soldiers form a particular social group.

Note, however, that often claims by persons employed, or formerly employed, as police

officers or soldiers may also be analyzed under another protected ground, such as actual

or imputed political opinion, depending on the facts of the case.

4.14.1 Former Military/Police Membership

The BIA recognized in both Matter of C-A- and Matter of Fuentes that former military

leadership is an immutable characteristic that may form the basis for a particular social

group under some circumstances. Similarly, while holding that the dangers arising solely

from the nature of employment as a policeman in an area of domestic unrest do not

support a claim, the Board indicated in Fuentes that former service in the national police

is an immutable characteristic that, in some circumstances, could form the basis for a

particular social group. In order to satisfy the definition of a particular social group, the

154

Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2006).

155

Id. at 668.

156

Benitez Ramos v. Holder, 589 F.3d 426, 431 (7th Cir. 2009).

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applicant also must demonstrate that the purported social group has a distinct identity in

society to meet the “social distinction” test.

157

The USCIS interpretive memo on C-A- clarifies that “harm inflicted on a former police

officer or soldier in order to seek revenge for actions he or she took in the past is not on

account of the victim’s status as a former police officer or soldier.”

158

In other words, if

the former officer is being targeted for his or her “status” as a former officer, he or she

could establish an asylum claim, but not if he or she is being targeted only for his or her

actions as a former police officer. It is important to note, however, that many of these

cases will involve mixed motives, and it is possible that a former officer is being targeted

on account of both status and former acts. An applicant would satisfy the “status”

requirement where (1) there is a cognizable particular social group, (2) he or she is a

member of the group, and (3) he or she is being targeted because of his or her

membership, regardless of whether there may be evidence that he is also being targeted

on account of past acts. As long as the membership in a cognizable particular social

group is a sufficient reason to meet the requisite nexus standard, evidence that he is also

targeted on account of past acts should not undermine the claim.

The Ninth Circuit, in Madrigal v. Holder, reviewed a case where the petitioner based his

past persecution claim partially on the mistreatment he suffered while serving in the

military and partially on events that occurred after he left the military.

159

The Ninth

Circuit analyzed the petitioner’s proposed particular social group of “former Mexican

army soldiers who participated in anti-drug activity,” and noted that case law

distinguishes between current versus former military or police service when determining

whether a particular social group is cognizable.

160

The Ninth Circuit concluded that the

petitioner’s proposed particular social group was valid and remanded the case to the

Board.

161

Specifically, the Ninth Circuit noted, “Although mistreatment motivated purely

by personal retribution will not give rise to a valid asylum claim, if a retributory motive

exists alongside a protected motive, an applicant need show only that a protected ground

is ‘one central reason’ for his persecution…. In Tapia Madrigal’s case, even if revenge

partially motivated Los Zetas’ mistreatment of him, the record makes clear that their

desire to intimidate members of his social group was another central reason for the

persecution.”

162

157

Lynden D. Melmed, USCIS Chief Counsel. Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate Director,

Refugee, Asylum and International Operations (Washington, DC: January 12, 2007); Matter of C-A-, 23 I&N Dec. 951, 959 (BIA

2006); see also Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988); Estrada-

Escobar v. Ashcroft, 376 F.3d 1042, 1047 (10th Cir. 2004) (finding that the rationale of Fuentes applies to threats from terrorist

organizations resulting from an applicant’s work as a law enforcement official targeting terrorist groups because the threat was

received as a result of the employment, not the applicant’s political opinion).

158

Lynden D. Melmed, USCIS Chief Counsel. Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate Director,

Refugee, Asylum and International Operations (Washington, DC: January 12, 2007) (emphasis added).

159

Madrigal v. Holder, 716 F.3d 499, 503-04 (9th Cir. 2013).

160

Id. at 504.

161

Id. at 505.

162

Id. at 506 (internal citations omitted).

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The Seventh Circuit has indicated that “former law-enforcement agents in Mexico” can

be a viable particular social group.

163

In that case, drug organizations initially offered the

applicant, an investigator, bribes to cooperate with them; however, when he refused, they

tried to kill him under their “plata o plomo” policy— “money or bullets.” Afraid of being

killed, the applicant resigned from his position and opened an office supply business,

trying to conceal his former position. The Seventh Circuit concluded that being a former

law enforcement agent is an immutable characteristic, as the applicant cannot erase his

employment history.

164

The record also contained evidence supporting that the feared

persecution was because the applicant was a former agent. The record contained evidence

that drug organizations have tried to kill other officers who resigned from the police. The

Seventh Circuit noted that “[p]unishing people after they are no longer threats is a

rational way to achieve deterrence . . . [and] there’s nothing implausible about [the

applicant’s] testimony that drug organizations in Mexico share this view of deterrence.”

165

4.14.2 Current Military/Police Membership

Current service as a soldier or police officer, under some circumstances, could define a

particular social group if that service is so fundamental to the applicant’s identity or

conscience that he or she should not be required to change it. The applicant would also

have to demonstrate that the purported social group has a distinct identity in the society,

and that the group is particular. If these requirements are met, it is possible that an

applicant could establish a cognizable social group in such circumstances.

166

Even if membership in a particular social group is established in such a case, however,

the determination that the persecution was or will be “on account” of the particular social

group is especially difficult. The determination requires special scrutiny.

Harm inflicted on a police officer or soldier because of his role as a public servant

carrying out his official government duties in an ongoing armed struggle or civil war is

not on account of the applicant’s membership in a group of police officers or soldiers.

167

Such a claim would therefore fail on the “on account of” element, even if the applicant

has established membership in a group that constitutes a particular social group.

Under a different set of circumstances, if the evidence showed that the applicant was

targeted because he or she was a police officer or soldier, the nexus requirement may be

met. It is only where the harm is inflicted because of the applicant’s membership in a

163

R.R.D. v. Holder, 746 F.3d 807, 810 (7th Cir. 2014).

164

Id.

165

Id.

166

See Lynden D. Melmed, USCIS Chief Counsel. Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate

Director, Refugee, Asylum and International Operations (Washington, DC: January 12, 2007).

167

Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988).

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group, rather than to interfere with his or her performance of specific duties, that the

nexus requirement may be met. This is a particularly difficult factual inquiry. One factor

that may assist in making this determination is whether the harm inflicted on the

applicant or threats occur while the applicant is on official duty, as opposed to once the

applicant has been taken out of combat or is no longer on duty.

The Ninth Circuit also has held that the general risk associated with military or police

service does not, in itself, provide a basis of eligibility. The Ninth Circuit, like the BIA,

recognizes a distinction between current service and former service when determining

the scope of a cognizable social group.

168

It is important to note that the fact of current service does not preclude eligibility. A

police officer or soldier may establish eligibility if he or she can show that the persecutor

is motivated to harm the applicant because the applicant possesses, or is perceived to

possess, a protected characteristic. The following passage from Cruz-Navarro v. INS is

instructive:

Fuentes, therefore, does not flatly preclude “police officers and soldiers from

establishing claims of persecution or fear of persecution.” [citing Velarde at 1311]

Rather, Fuentes suggests that persecution resulting from membership in the police

or military is insufficient, by itself, to establish persecution on account of

membership in a particular social group or political opinion.

169

The Seventh Circuit has not adopted the distinction between current and former police

officers set forth in Fuentes. In dicta, the Court expressed disapproval of any reading of

Fuentes that would create a per se rule that dangers encountered by police officers or

military personnel during service could never amount to persecution. However, in the

case before it, the Court upheld the BIA’s determination that the dangers the applicant

experienced while serving as a military and police officer arose from the nature of his

employment and were not on account of a protected characteristic.

170

4.15 Drug Traffickers

Under general principles of refugee protection, the shared characteristic of terrorist,

criminal, or persecutory activity or association, past or present, cannot form the basis of a

particular social group.

171

In Bastanipour v. INS, an applicant was convicted of trafficking

in drugs in the United States and faced removal to Iran. He claimed a well-founded fear,

168

Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir. 2000); Velarde v. INS, 140 F.3d 1305 (9th Cir.1998) (former bodyguard

of daughters of Peruvian President threatened by Shining Path with reference to the applicant’s specific duties); see also Duarte

de Guinac v. INS, 179 F.3d 1156 (9th Cir. 1999) (suffering while in military on account of applicant's race, not participation in

military).

169

Cruz-Navarro v. INS, 232 F.3d at 1029.

170

Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th Cir. 2003).

171

Lynden D. Melmed, USCIS Chief Counsel, Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate Director,

Refugee, Asylum and International Operations (Washington, DC: January 12, 2007).

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asserting that the Iranian government executes individuals who traffic in illegal drugs.

The Seventh Circuit held that:

[w]hatever its precise scope, the term “particular social groups” surely was not

intended for the protection of members of the criminal class in this country,

merely upon a showing that a foreign country deals with them even more harshly

than we do. A contrary conclusion would collapse the fundamental distinction

between persecution on the one hand and the prosecution of nonpolitical crimes

on the other. We suppose there might be an exception for some class of minor or

technical offenders in the U.S. who were singled out for savage punishment in

their native land, but a drug felon sentenced to thirty years in this country (though

Bastanipour’s sentence was later reduced to fifteen years) cannot be viewed in

that light.

172

4.16 Criminal Deportees

Similarly, the USCIS position that criminal activity or association may not form the basis

of a particular social group is consistent with courts’ views of criminal deportees as an

invalid particular social group. In Elien v. Ashcroft, the First Circuit upheld a finding by

the BIA that a group defined as “deported Haitian nationals with criminal records in the

United States” does not qualify as a particular social group for the purposes of asylum.

The First Circuit agreed with the BIA that it would be unsound policy to recognize

criminal deportees as a particular social group, noting that the BIA had not extended

particular social group to include persons who “voluntarily engaged in illicit activities.”

173

4.17 Persons Returning from the United States

The Ninth Circuit has held that “returning Mexicans from the United States” does not

constitute a valid particular social group.

174

The applicant in that case pointed to reports of

crime against Americans on vacation, as well as Mexicans who had returned to Mexico

after living in the United States, to support the fear of harm based on membership in the

proposed social group.

175

The First Circuit has also upheld the BIA’s conclusion that a group defined as

“Guatemalan nationals repatriated from the United States” did not constitute a particular

social group. In that case, the court reasoned that the applicant was essentially arguing

that he would be targeted by criminals for perceived wealth, and “being a target for

thieves on account of perceived wealth, whether the perception is temporary or

172

Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992) (citations omitted).

173

Elien v. Ashcroft, 364 F.3d 392, 397 (1st Cir. 2004); see also Toussaint v. Attorney General of U.S., 455 F.3d 409, 417 (3d

Cir. 2006) (adopting the reasoning of the First Circuit in ruling that criminal deportees to Haiti do not constitute a particular

social group).

174

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-1152 (9th Cir. 2010).

175

Id. at 1151-52.

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permanent, is merely a condition of living where crime is rampant and poorly

controlled.”

176

4.18 Tattooed Youth

The Sixth Circuit has found that a group of “tattooed youth” does not constitute a

particular social group under the INA. The court found that having a tattoo is not an

innate characteristic and that “tattooed youth” are not closely affiliated with one another.

Further, the court stated that “the concept of a refugee simply cannot guarantee an

individual the right to have a tattoo.”

177

4.19 Individuals Resisting and Fearing Gang Recruitment, and Opposition to Gang

Authority

In Matter of S-E-G-, the BIA rejected a proposed particular social group defined as

“Salvadoran youth who have been subjected to recruitment efforts by MS-13 and who

have rejected or resisted membership in the gang based on their own personal, moral, and

religious opposition to the gang’s values and activities,” because it lacked “well-defined

boundaries” that make a group particular and, therefore, lacked social visibility.

178

Similarly, in Matter of E-A-G-, the BIA held that the applicant, a young Honduran male,

failed to establish that he was a member of a particular social group of “persons resistant

to gang membership,” as the evidence failed to establish that members of Honduran

society, or even gang members themselves, would perceive those opposed to gang

membership as members of a social group.

179

In Matter of M-E-V-G-, a Honduran gang threatened to kill the applicant if he refused to

join the gang.

180

The applicant claimed that he was persecuted on account of his

membership in a particular social group, namely Honduran youth who have been actively

recruited by gangs but who have refused to join because they oppose the gangs. Citing S-

E-G-, the BIA recognized that it is often difficult to conclude that such a group is much

narrower than the general population, and noted that it might be difficult to satisfy the

social distinction and particularity requirements.

181

The BIA, however, remanded the case

for the immigration judge to analyze updated country conditions and arguments regarding

the applicant’s particular social group claim.

182

The BIA reasoned that its holdings in S-E-

G- and E-A-G- should not be read as a blanket rejection of all factual scenarios involving

gangs; the applicant’s proposed particular social group had evolved during the pendency

176

Escobar v. Holder, 698 F.3d 36, 39 (1st Cir. 2012).

177

Castellano-Chacon v. INS, 341 F.3d 533, 549 (6th Cir. 2003).

178

Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008).

179

Matter of E-A-G-, 24 I&N Dec. 591, 594-95 (BIA 2008).

180

Matter of M-E-V-G-, 26 I&N Dec. 227, 228 (BIA 2014).

181

Id. at 249-50.

182

Id. at 253.

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of his appeal; and the BIA’s guidance on particular social group claims had been clarified

since the case was last before the immigration judge.

183

After the BIA’s decision in M-E-V-G-, the Ninth Circuit, in Pirir-Boc v. Holder, held that

a group characterized as individuals “taking concrete steps to oppose gang membership

and gang authority” may be cognizable.

184

Prior to the Board’s decision in M-E-V-G-, the

Board had rejected the proposed group that Ninth Circuit analyzed in Pirir-Boc.

185

Pirir-Boc, the petitioner’s younger brother had joined the Mara Salvatrucha gang in

Guatemala. Gang members overheard the petitioner instructing his brother to leave the

gang. After his brother left the gang, gang members severely beat the petitioner and

threatened to kill him. Without conducting case-specific analysis, the Board rejected the

petitioner’s proposed particular social group, citing to S-E-G-. On petition for review, the

Ninth Circuit remanded the case to the Board to determine whether Guatemalan society

recognizes the petitioner’s proposed social group.

186

In Rodas-Orellana v. Holder, the Tenth Circuit, applying M-E-V-G- and W-G-R-, upheld

the BIA’s determination that a social group characterized as “El Salvadoran males

threatened and actively recruited by gangs, who resist joining because they opposed the

gangs” was not socially distinct.

187

The Court found that the petitioner, a Salvadoran who

was threatened and beaten for refusing to join the Mara Salvatrucha, had not presented

evidence suggesting that Salvadoran society perceived individuals who resisted gang

recruitment as a distinct group; rather, the record in that case showed that “Salvadoran

gangs indiscriminately threaten people for monetary gain or for opposing them.”

188

The

Court rejected the petitioner’s argument that the case needed to be remanded for

additional analysis in light of M-E-V-G and W-G-R-, finding that, unlike in Pirir-Boc, the

Board had properly considered the record before it.

4.20 Non-Criminal Informants, Civilian Witnesses, and Assistance to Law Enforcement

The question of whether and when serving as a witness or providing other law

enforcement assistance may form the basis of a particular social group is an evolving area

of the law. In Matter of C-A-, the Board concluded that a group composed of confidential

non-criminal informants did not constitute a particular social group.

189

The Board pointed

out that “social visibility” is “limited to those informants who are discovered because

they appear as witnesses or otherwise come to the attention of cartel members.”

190

183

Id. at 251-52.

184

Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014).

185

Id.

186

Id. at 1084.

187

Rodas-Orellana v. Holder, 780 F.3d 982, 992 (10th Cir. 2015).

188

Id. at 993.

189

Matter of C-A-, 23 I&N Dec. 951 (BIA 2006).

190

Id. at 960 (emphasis added).

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Circuit courts have subsequently recognized select circumstances where serving as a

witness or cooperating with law enforcement may form the basis of a particular social

group. In Garcia v. Att’y Gen. of U.S., involving an individual placed in witness

protection and relocated by the Guatemalan Public Ministry outside of her country, the

Third Circuit recognized that “[c]ivilian witnesses who have the ‘shared past experience’

of assisting law enforcement against violent gangs that threaten communities in

Guatemala” share an immutable characteristic.

191

In Gashi v. Holder, involving an

individual who observed alleged military crimes by a leader of the Kosovo Liberation

Army and cooperated with international investigators by being placed on a list of

potential witnesses though ultimately not testifying in court, the Second Circuit held that

a group of cooperating witnesses could constitute a particular social group.

192

The Ninth

Circuit held in Henriquez-Rivas v. Holder that witnesses “who testified in court against

gang members” in El Salvador may be a cognizable particular social group.

193

The

Henriquez-Rivas court concluded that “for those who have publicly testified against gang

members, their ‘social visibility’ is apparent,” as it involves “a distinct group of

persons.”

194

In addition, Henriquez-Rivas met the particularity criterion, as her “group can

be easily verified – and thus delimited – through court records documenting group

members’ testimony.”

195

While the public nature of the past experience in Garcia

196

and Henriquez-Rivas

197

helped

establish social distinction, the Ninth Circuit has emphasized that it “by no means

intend[s] to suggest that the public nature of [the applicant’s] testimony is essential” for a

viable particular social group.

198

Further, in Garcia, the Third Circuit case, the assistance

was not completely public in that the applicant testified while wearing a disguise.

199

The

Board, in Matter of M-E-V-G-

200

and Matter of W-G-R-,

201

has since made clear that literal

visibility in the public or elsewhere is not a requirement to show social distinction.

191

Garcia v. Att’y Gen. of U.S., 665 F.3d 496, 504 n.5 (3d Cir. 2011) (distinguishing case from C-A- because the applicant’s

identity was “known to her alleged persecutors,” whereas in C-A- the assistance to law enforcement was confidential).

192

Gashi v. Holder, 702 F.3d 130, 137 (2d Cir. 2012) (holding that the group was immutable due to the shared past experience,

was socially visible due to Gashi being labeled as a traitor for meeting with international investigators, and particular due to the

finite number of people who have cooperated with official war crimes investigators).

193

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th

Cir. 2013) (finding that the BIA erred in applying its own precedents in

deciding whether Henriquez-Rivas was a member of a particular social group, citing to language in C-A- that those who testify

against cartel members are socially visible); see also Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (citing Henriquez-

Rivas for the principle that a retributive motive may exist alongside a protected motive, noting, “Gang persecution of adverse

witnesses would certainly have revenge as one motive, but group-based intimidation would be another.”).

194

Id. at 1093.

195

Id.

196

Garcia, 665 F.3d at 504.

197

Henriquez-Rivas, 707 F.3d at 1092.

198

Id. n.14.

199

Garcia, 665 F.3d at 500.

200

Matter of M-E-V-G-, 26 I&N Dec. 227, 240 (BIA 2014).

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Some courts have rejected particular social groups where gangs were targeting and

harming the petitioners, and then the petitioners reported the gangs to the police. For

instance, in Zelaya v. Holder, the Fourth Circuit rejected a group consisting of young

Honduran males who (1) refuse to join a gang, (2) have notified authorities of gang

harassment, and (3) have an identifiable tormentor within the gang.

202

In Garcia v.

Holder, the Eighth Circuit rejected a particular social group consisting of “young

Guatemalan men who have opposed the MS–13, have been beaten and extorted by that

gang, reported those gangs to the police[,] and faced increased persecution as a result”

because the group was insufficiently particular and the petitioner failed to produce

sufficient evidence of social distinction.

203

In Carvalho-Frois v. Holder, the First Circuit rejected a group of “witnesses to a serious

crime whom the government is unable or unwilling to protect” as not socially visible.

204

The applicant in that case heard two gunshots at a neighbor’s home, and was warned by

two men leaving the home that she was in danger and not to reveal anything about what

she saw. She subsequently learned that a murder had occurred. The applicant relocated

after receiving a phone call that the callers knew where she lived and they would kill her

if she said anything to the police. This decision was based on lack of social visibility, and

was reached before the BIA’s decisions in M-E-V-G- and W-G-R- on social distinction

and particularity.

In addition, in Bathula v. Holder, the Seventh Circuit upheld the BIA’s determination that

an Indian applicant who was threatened after testifying in court against a land mafia had

not established nexus to a protected ground because he “was the victim of intimidation

and then retaliation for his specific testimony in a specific case against the land mafia”

rather than on account of his membership in a particular social group, which he had

defined as “those willing to participate, despite personal risk, in the orderly

administration of justice against criminal elements.”

205

The court only considered the

nexus issue and did not address the validity of the group.

201

Matter of W-G-R-, 26 I&N Dec. 208, 216 (BIA 2014).

202

Zelaya v. Holder, 668 F.3d 159, 162 (4th Cir. 2012). While the Fourth Circuit rejected the proposed group in Zelaya due to

lack of particularity, the court subsequently held in another case that “[e]ach component of the group…might not have particular

boundaries[;]…[o]ur case law is clear, however, that the group as a whole qualifies.” Temu v. Holder, 740 F.3d 887, 896 (4th Cir.

2014) (citing Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (recognizing a particular social group of family

members of those who actively oppose gangs by agreeing to be prosecutorial witnesses, even if on its own, “’[p]rosecutorial

witnesses’ might reach too broad a swath of individuals” and “’those who actively oppose gangs’ might be too fuzzy a label for a

group.”)).

203

Garcia v. Holder, 746 F.3d 869, 872-73 (8th Cir. 2014).

204

Carvalho-Frois v. Holder, 667 F.3d 69, 73 (1st Cir. 2012) (“[t]he fact that the petitioner was known by a select few to have

witnessed a crime tells us nothing about whether the putative social group was recognizable to any extent by the community…

Because we discern no feature of the group that would enable the community readily to differentiate witnesses to a serious crime

from the Brazilian populace as a whole, the claimed group is simply too amorphous to satisfy the requirements for social

visibility.”).

205

Bathula v. Holder, 723 F.3d 889, 900-01 (7th Cir. 2013).

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Several circuit courts have upheld decisions that applicants who served as informants in

the U.S. did not establish persecution on account of a protected ground.

206

In Costa v.

Holder, the First Circuit considered the case of a Brazilian applicant who had worked as

an ICE informant in the United States and received indirect threats from the family of a

man named Lelito who had been arrested because of the applicant’s work. It upheld the

BIA’s conclusion that she had not established that the threats were on account of her

membership in the particular social group of “former ICE informants.”

207

The Court

reasoned, “Although Costa participated in multiple sting operations, the record indicates

that only Lelito's arrest triggered the threats that form the basis of her application....There

is little to suggest that the scope of persecution extends beyond a ‘personal vendetta.’.”

208

Similarly, in Martinez-Galarza v. Holder, the applicant proposed two groups: people who

have provided information to ICE to enable that organization to remove individuals

residing illegally in the United States, and witnesses for ICE. The Eighth Circuit rejected

a nexus to these proposed groups, stating, “Sanchez’s alleged reason for wanting to harm

Martinez–Galarza—because Martinez–Galarza ended Sanchez’s American dream—is

motivated by purely personal retribution, and thus not a valid basis for an asylum

claim.”

209

The court acknowledged, “There may be asylum protections for an applicant

who shows the threatened persecution is motivated by both personal retaliation and a

protected motive, but Martinez–Galarza presents no evidence to suggest this is the

situation here. He does not allege that Sanchez has threatened or attacked other ICE

informants.”

210

Based on the specific facts of the case, it may nonetheless be possible that

an informant to U.S. law enforcement officials may be able to establish eligibility.

When you encounter potential particular social groups related to testifying against

criminals or cooperating with law enforcement against criminals, there is no bright-line

rule about what type of testimony or law enforcement assistance will establish a

cognizable particular social group. As the Board held in M-E-V-G- and W-G-R-, the

viability of a particular social group must be analyzed on a society-by-society and case-

by-case basis. You should analyze country reports, news articles, testimony, and other

evidence to determine whether someone who assists law enforcement through courtroom

testimony or other means is perceived by society as distinct. Depending on the evidence,

a certain type of law enforcement assistance or witness testimony might be socially

distinct in one society, but not in another society. You also would need to articulate how

206

See, e.g., Jonaitiene v. Holder, 660 F.3d 267 (7th Cir. 2011); Wang v. Gonzales, 445 F.3d 993 (7th Cir. 2006); U.S. v. Aranda-

Hernandez, 95 F.3d 977 (10th Cir. 1996).

207

Costa v. Holder, 733 F.3d 13, 17 (1st Cir. 2013).

208

Id. See also Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009); Amilcar-Orellana v. Mukasey, 551 F.3d 86, 91 (1st Cir. 2008)

(involving a Salvadoran man who provided information to the police and testified before a grand jury concerning arson

committed in the U.S. by two gang members, the First Circuit held, “Amilcar-Orellana’s fear of persecution stems from a

personal dispute with X and Y, not his membership in a particular social group.”).

209

Martinez-Galarza v. Holder, 782 F.3d 990, 993 (8th Cir. 2015).

210

Id. at 994 (internal citation omitted).

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the proposed group has definable boundaries, so it is clear who fits within the group and

who does not.

The nexus inquiry may be difficult in cases where an applicant claims to have been

targeted for having assisted law enforcement. Even where such a social group is

cognizable and the applicant is a member of the group, you should examine the evidence

to determine whether the applicant was targeted on account of his or her membership in a

group defined by past assistance to law enforcement.

It is possible that an applicant who appears to have been targeted out of revenge for

having cooperated with law enforcement may also be able to establish nexus to a

particular social group defined by this shared past experience. You must carefully

consider any direct evidence in the record of the persecutor’s motive and indirect

evidence such as the timing and circumstances of the harm or threats the applicant claims

to have experienced, the applicant’s testimony about the experiences of similarly situated

individuals in the society, and country conditions reports or news articles relating to the

treatment of other members of the group to make this determination. You should

generally first examine whether there exists a group that meets the requirements of a

particular social group, and then should analyze whether the applicant was or will be

persecuted on account of any cognizable particular social group.

4.21 Gang Members

The Ninth Circuit has found that “tattooed gang members” is not a particular social

group, because the group is not defined with particularity. The court also found that

neither former nor current gang membership constitutes a valid particular social group.

211

A group defined as “gang members” is not a particular social group, despite having the

shared immutable trait of past experience and arguably being able to establish the social

distinction prong, because the group’s shared experience stems from criminal activity.

212

Groups based upon criminality do not form the basis for protection, because the shared

trait is “materially at war with those [characteristics] we have concluded are innate for

purposes of membership in a social group.”

213

To find otherwise, said the court, would

pervert the humanitarian purpose of refugee protection by giving “sanctuary to universal

outlaws.” The court also found that “participation in criminal activity is not fundamental

to gang members’ individual identities or consciences.”

214

The court also analyzed whether current gang membership gives rise to a particular social

group using the Ninth Circuit’s alternate “voluntary association” test. The court found

211

Arteaga v. Mukasey, 511 F.3d 940, 945 (9th Cir. 2007).

212

Id. at 945-46.

213

Id. at 945.

214

Id. at 946.

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that current gang membership does not constitute a particular social group, because the

gang association is for the purpose of criminal activity. Thus, it is not an association that

is fundamental to human dignity; i.e., it is not the kind of association that a person should

not be required to forsake. Therefore, current gang members are not members of a

particular social group on the basis of their gang membership.

215

The applicant also failed to establish a particular social group of “former” gang members.

Disassociation from a gang does not automatically result in the creation of a new social

group. Citing to Matter of A-M-E- & J-G-U-, the court found that “non-association” and

“disaffiliation” are unspecific and amorphous terms, even if qualified with the word

“tattooed,” as in “former tattooed gang members.”

216

4.22 Former Gang Members

Some circuit courts have found that “former gang members” may be a particular social

group. This finding is not consistent with USCIS’s and RAIO’s legal interpretation,

according to which a particular social group may not be based on criminal activity or

associations, past or present.

217

However, for cases arising within the jurisdiction of those

circuits, asylum officers must follow these rulings

218

as well as the analytical framework

laid out by the BIA in Matter of W-G-R- and Matter of M-E-V-G.

219

See Asylum

Adjudications Supplement – Former Gang Membership as a Particular Social Group.

Because refugee applications are adjudicated outside of the jurisdiction of any circuit

court of appeals, refugee officers are not bound by these circuit court decisions and

should follow USCIS, RAIO and IRAD guidance.

5. SUMMARY

An applicant who is seeking asylum based on membership in a particular social group

must establish that the group is (1) composed of members who share a common

215

Id.; see also Henriquez-Rivas v. Holder, 707 F.3d 1081, 1097 (9th Cir. 2013) (acknowledging that the Board does not require

members of a particular social group to share a voluntary associational relationship).

216

Id.

217

See Lynden D. Melmed, USCIS Chief Counsel, Guidance on Matter of C-A-, Memorandum to Lori Scialabba, Associate

Director, Refugee, Asylum and International Operations (Washington, DC: January 12, 2007).

218

Urbina–Mejia v. Holder, 597 F.3d 360, 365–67 (6th Cir. 2010) (holding that former gang members of the 18th Street gang

have an immutable characteristic and are members of “particular social group” based on their inability to change their past and

the ability of their persecutors to recognize them as former gang members); Benitez Ramos v. Holder, 589 F.3d 426, 431 (7th Cir.

2009); Martinez v. Holder, 740 F.3d 902, 911-13 (4th Cir. 2014) (concluding that Martinez’s membership in a group that

constitutes former MS-13 members is immutable, but did not address the social distinction and particularity criteria. The court

remanded the case to consider other criteria).

219

Matter of W-G-R-, 26 I&N Dec. 208, 215 n.5 (BIA 2014) (opining that “[g]ang members willingly involved in violent,

antisocial behavior are more akin to persecutors and criminals, who are barred from establishing eligibility for asylum and

withholding of removal, than to refugees, whom the Act is intended to protect”); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA

2014).

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immutable characteristic, (2) socially distinct within the society in question, and (3)

defined with particularity. A common, immutable characteristic is one that the members

of the group either cannot change, or should not be required to change because it is

fundamental to the member’s identity or conscience. For social distinction, a group’s

shared characteristic must be perceived as distinct by the relevant society. Social

distinction does not require the shared characteristic to be seen by society (i.e., literally

visible). To satisfy the particularity requirement, there must be a benchmark and

definable boundaries for determining who falls within the group and who does not. All

three elements are required, and the elements must be analyzed on a case-by-case basis

and society-by-society basis. In analyzing particular social groups, it also is important to

consider the other general principles discussed in this lesson plan, including: to avoid

circular reasoning; to avoid defining a group by terrorist, criminal, or persecutory

activity; and to recognize that voluntary association, cohesiveness, or homogeneity are

not required.

You should also avoid conflating nexus with the validity of a particular social group.

Even if an applicant establishes that he or she is a member of a particular social group,

the applicant must still establish that he or she was persecuted, or has a well-founded fear

of persecution, on account of his or her membership in the group. Membership in a

particular social group also may be imputed to an applicant who, in fact, is not a member

of a particular social group. Finally, membership in a particular social group may overlap

with other protected grounds, such as political opinion, and you should also consider

whether the applicant can establish eligibility based on a different protected ground.

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PRACTICAL EXERCISES

Practical exercises will be added at a later time.

Practical Exercise # 1

• Title:

• Student Materials:

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OTHER MATERIALS

There are no “Other Materials” for this module.

Supplement A

International and Refugee Adjudications Nexus – Particular Social Group

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SUPPLEMENT A – INTERNATIONAL AND REFUGEE ADJUDICATIONS

The following information is specific to international and refugee adjudications. Information in

each text box contains adjudication-specific procedures and guidelines related to the section from

the Training Module referenced in the subheading of the supplement text box.

REQUIRED READING

•

ADDITIONAL RESOURCES

SUPPLEMENTS

There are no supplements.

Supplement B

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SUPPLEMENT B – ASYLUM ADJUDICATIONS

The following information is specific to asylum adjudications. Information in each text box

contains adjudication-specific procedures and guidelines related to the section from the Training

Module referenced in the subheading of the supplement text box.

REQUIRED READING

•

ADDITIONAL RESOURCES

SUPPLEMENTS

Asylum Adjudications Supplement - Former Gang Membership as a

Particular Social Group in the Fourth, Sixth, and Seventh Circuits

Prior to the Board of Immigration Appeals’ decisions in Matter of M-E-V-G- and

Matter of W-G-R, the Sixth and Seventh Circuits issued decisions holding that

former gang membership can form the basis of a particular social group.

220

The

Fourth Circuit has also held that former members of the MS-13 gang in El Salvador

shared an immutable characteristic and rejected the argument that a particular social

group may not be defined by former criminal associations, though it did not decide

whether the group met the “particularity” or “social distinction” criteria and

remanded for the Board to consider whether the proposed group met those

criteria.

221

On the other hand, the First and Ninth Circuits have held that former

gang membership does not give rise to a particular social group.

222

220

Urbina–Mejia v. Holder, 597 F.3d 360, 365–67 (6th Cir.2010) (holding that former gang members of the 18th Street gang

have an immutable characteristic and are members of “particular social group” based on their inability to change their past and

the ability of their persecutors to recognize them as former gang members); Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir.

2009).

221

Martinez v. Holder, 740 F.3d 902, 911-13 (4th Cir. 2014).

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In W-G-R-, the Board considered the case of an applicant who claimed that he had

been targeted by the Mara 18 gang in El Salvador for retribution because he had left

the gang.

223

The Board held that the applicant’s proposed social group of “former

members of the Mara 18 gang in El Salvador who have renounced their gang

membership” was not sufficiently particular, because it could include people of any

age, sex, and background and their participation in the gang could vary widely in

terms of strength and duration, or socially distinct, because there was not enough

evidence in the record about the treatment or status of former Mara 18 members in

Salvadoran society.

224

In addition, the Board opined that “[g]ang members willingly

involved in violent, antisocial behavior are more akin to persecutors and criminals,

who are barred from establishing eligibility for asylum and withholding of removal,

than to refugees, whom the Act is intended to protect.”

225

The Board quoted from its

decision in Matter of E-A-G-, stating, “Treating affiliation with a criminal

organization as being protected membership in a social group is inconsistent with

the principles underlying the bars to asylum and withholding of removal based on

criminal behavior.”

226

As the Fourth, Sixth, and Seventh Circuits have issued decisions that conflict with

USCIS’s interpretation of the term “particular social group” not to include groups

based on past or present criminal, persecutory, or terrorist activity or association,

and the Board has not expressly held that these decisions have been superseded,

officers adjudicating cases in those circuits may not rely on this principle. No

circuit court, however, has yet considered whether social groups based on former

membership in a criminal gang may be cognizable according to the three-part test

set forth in M-E-V-G- and W-G-R-. Officers adjudicating asylum claims in the

Fourth, Sixth, and Seventh Circuits must consider whether groups based on former

criminal activities or associations are valid by applying all three criteria as

articulated in the Board decisions.

222

See Cantarero v. Holder, 734 F.3d 82, 86 (1st Cir. 2013) (“The shared past experiences of former members of the 18th Street

gang include violence and crime. The BIA’s decision that this type of experience precludes recognition of the proposed social

group is sound.”); Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir. 2007) (“We cannot conclude that Congress, in offering

refugee protection for individuals facing potential persecution through social group status, intended to include violent street

gangs who assault people and who traffic in drugs and commit theft.”); cf. Elien v. Ashcroft (1st Cir. 2004) (in rejecting

repatriated Haitian criminals as a particular social group, stating, “the BIA has never extended the term ‘social group’ to

encompass persons who voluntarily engaged in illicit activities”); Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992)

(rejecting drug traffickers as a particular social group).

223

Matter of W-G-R-, 26 I&N Dec. 208, 209 (BIA 2014).

224

Id. at 221.

225

Id. at 215 n. 5.

226

Id. (quoting Matter of E-A-G-, 24 I&N Dec. 591, 596 (BIA 2008)).