En Banc Ninth Circuit Rejects BIA Particular Social Group Analysis in Gang Case

Immigrants who have fled gangs in their native countries may be eligible for asylum under a ruling of the U.S. Court of Appeals of the Ninth Circuit on Wednesday (Henriquez-Rivas v. Holder).The en banc decision in a case involved a Salvadoran girl who identified gangmembers as the murderers of her father.The legal issue in the case was what qualifies as a “particular social group” for purposes of asylum; a fear of persecution based on membership in a particular social group may give rise to a claim of persecution.   

The 9-2 holding vacated a decision of the Board of Immigration Appeals, which haddenied Rocio Brenda Henriquez-Rivas’ claim for asylum based on its application of the “social visibility” test for social group membership. There long has been a conflict among the circuits on the definition of particular social groups eligible for relief as well as the treatment of, or former, members of gangs and immigrants who have fled gang violence.  The panel remanded the case back to the BIA for reconsideration. 

Interestingly, the majority and disssenting opinions were written by immigrants.  Judge Carlos T. Bea, an immigrant who camewith his family from Spain to Cuba and then to the United States, wrote the opinion for the court.   

The dissent was written by Chief Judge Alex Kozinski, who is also an immigrantbrought to the U.S. by his Holocaust survivor parents from his Romania.  

Amici briefs were filed in the case by theCentral American Resource Center, UC Hastings Center for Genderand Refugee Studies, Harvard Immigration and Refugee Clinic, the United NationsHigh Commissioner for Refugees, and other immigration rights groups.

 KJ