Valdiviezo-Galdamez v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-4564

MAURICIO VALDIVIEZO-GALDAMEZ,

Petitioner

v.

ATTORNEY GENERAL OF

THE UNITED STATES,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A097-447-286)

Argued: February 3, 2010

Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge,

and

DAVIS, District Judge *

*

Hon. Legrome D. Davis, United States District Judge

for the Eastern District of Pennsylvania, sitting by

1

(Opinion filed: November 8, 2011)

MARTIN DUFFEY, ESQ. (Argued)

Cozen O’Connor

1900 Market Street

Philadelphia, PA 19103

AYODELE GANSALLO, ESQ.

HIAS & Council Migration Services of

Philadelphia

2100 Arch Street

Philadelphia, PA 19103

Attorneys for Petitioner

H. ELIZABETH DALLAM, ESQ.

Senior Protection Officer

United Nations High Commissioner

for Refugees

1775 K Street NW, Suite 300

Washington, D.C. 20006

As Amicus Curiae for the United Nations

High Commissioner for Refugees, in support

of Petitioner

TONY WEST, ESQ.

Assistant Attorney General

Civil Division

LINDA S. WERNERY, ESQ.

designation.

2

Assistant Director

MARGARET PERRY, ESQ.

Senior Litigation Counsel

THEODORE C. HIRT, ESQ. (Argued)

Attorney

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION

McKEE, Chief Judge.

Mauricio Valdiviezo-Galdamez petitions for review of a

decision of the Board of Immigration Appeals dismissing his

appeal from an Immigration Judge’s order denying his

applications for asylum, withholding of removal and relief under

Article III of the Convention Against Torture. For the reasons

that follow, we will grant the petition for review on the asylum

and withholding of removal applications and remand for further

proceedings; we will deny the petition for review on the claim

for relief under the Convention Against Torture.

I. FACTUAL BACKGROUND 1

1

The facts are taken from our opinion on Valdiviezo-

(continued...)

3

Mauricio Edgardo Valdiviezo-Galdamez was born in

May 1984, and is a native and citizen of Honduras. He came to

the United States in October 2004 without being admitted or

paroled after inspection by an immigration officer. Removal

proceedings were initiated against him in January 2005. During

those proceedings, Valdiviezo-Galdamez admitted removability,

but submitted an application for asylum, withholding of

removal, and relief under Article III of the Convention Against

Torture (“CAT”), as noted above.

At the ensuing removal hearing before an Immigration

Judge, Valdiviezo-Galdamez testified that he fled Honduras

because members of a gang called “Mara Salvatrucha,” a/k/a

“MS-13,” had threatened to kill him if he did not join their

gang. Valdiviezo-Galdamez testified that the gang engages in

drug trafficking and, on occasion, commits murder. According

to Valdiviezo-Galdamez, the gang members began threatening

him in March 2003, when he was living in the city of San Pedro

Sula in Honduras. On one occasion six men approached

Valdiviezo-Galdamez and robbed him as he was leaving work.

They told him that he would have to join their gang to get his

money and jewelry back. When he refused, the men hit him and

told him that he better think about their “proposal.” Valdiviezo-

Galdamez knew that the men were members of Mara

Salvatrucha because they had tattoos that were characteristic of

1

(...continued)

Galdamez’s prior petition for review. Valdiviezo-Galdamez v.

Attorney General (“Valdiviezo-Galdamez I”), 502 F.3d 285,

286-287 (3d Cir. 2007).

4

gang membership.

Valdiviezo-Galdamez waited three days before reporting

the incident to the police because he was afraid to leave his

house. After this incident, he moved to live with his mother in

Santa Rosa de Cupon because he was afraid the gang would

come after him if he remained in San Pedro Sula. He did not

leave his mother’s house during the three months he stayed in

Santa Rosa. He returned to San Pedro Sula in June 2003

because he received a job offer. He testified that he did not

think that he could find work in Santa Rosa because the village

is largely agricultural and most people are farmers. In addition,

he was afraid to stay in Santa Rosa because some of his former

classmates who lived there were gang members and he feared

that they would discover his presence.

After Valdiviezo-Galdamez returned to San Pedro Sula,

he moved to a different colony within the city in an attempt to

avoid members of Mara Salvatrucha. However, gang members

soon spotted him and renewed their threats. They shot at him,

and threw rocks and spears at him about two-to-three times a

week. When he ran, they would shout after him: “Don’t run.

Don’t be afraid. Sooner or later you will join us.” He was able

to identify some of the men, either by the gang nicknames

inscribed in their tattoos or because they addressed one another

by those nicknames. Valdiviezo-Galdamez filed five separate

police reports about these incidents, but claimed he received no

response from the police.

Valdiviezo-Galdamez testified that he was in a two car

caravan on his way to visit his sister’s husband in Guatemala,

5

in September, 2004, when he and his fellow passengers in one

of the cars were kidnapped by members of Mara Salvatrucha

after crossing the border into Guatemala. They were taken into

the mountains where the kidnappers asked Valdiviezo-

Galdamez what he was doing in Guatemala. He told them that

he was only traveling, but his abductors thought he was trying

to escape recruitment into their gang. Valdiviezo-Galdamez

testified that they told him they were no longer offering him the

option of joining their gang, and had decided to kill him

instead. They then tied Valdiviezo-Galdamez up and beat him

for five hours.

He was eventually freed by the Guatemalan police who

had been alerted by family members who were traveling behind

Valdiviezo-Galdamez and had not been spotted by the

attackers. Valdiviezo-Galdamez filed a complaint with the

Guatemalan police, but they simply said that it was not their

problem since he wasn’t from Guatemala. Valdiviezo-

Galdamez remained in Guatemala briefly with his sister’s

husband, and then decided to come to the United States to

escape the gang. He testified that he believes that the gang

members will kill him and attack his family if he returns to

Honduras and continues to resist gang recruitment.

In his asylum application, Valdiviezo-Galdamez alleged

that he had been persecuted in Honduras on account of his

membership in a particular social group, that he had suffered

persecution on account of his political opinion and that he had

a well-founded fear that such persecution would continue if he

were returned to Honduras.

6

II. PROCEDURAL HISTORY

On June 15, 2005, after a hearing, the Immigration Judge

denied Valdiviezo-Galdamez’s applications for relief although

he found no reason to disbelieve Valdiviezo-Galdamez’s

testimony. The IJ suggested three failures of proof. The IJ

concluded that Valdiviezo-Galdamez had not established that

the government refused to protect him from the attacks by the

Mara Salvatrucha members and that the refusal was on account

of one of the five grounds enumerated in the Immigration and

Nationality Act (“INA”), i.e., his race, religion, nationality,

membership in a particular social group or political opinion.

Second, the IJ found that Valdiviezo-Galdamez failed to

establish that he had been injured on account of his race,

religion, nationality, membership in a particular social group or

political opinion. Third, the IJ noted that Valdiviezo-Galdamez

had lived in Santa Rosa without problems and faulted him for

failing to establish that the danger of persecution at the hands of

the gang members was country-wide.2 The IJ also found that

Valdiviezo-Galdamez presented no evidence that he would be

tortured if returned to Honduras.

Valdiviezo-Galdamez appealed that ruling to the Board

2

See 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant does

not have a well-founded fear of persecution if the applicant

could avoid persecution by relocating to another part of the

applicant's country of nationality ... if under all the

circumstances it would be reasonable to expect the applicant

to do so.”).

7

of Immigration Appeals. In his brief to the BIA, he argued,

inter alia, that he belonged to the “particular social group” of

“Honduran youth who have been actively recruited by gangs but

have refused to join because they oppose the gangs.” On

February 27, 2006, the BIA rejected the argument and

summarily affirmed the IJ’s decision.

Valdiviezo-Galdamez then filed his first petition for

review with this court. We granted the petition, vacated the

BIA’s decision and remanded for further proceedings.

Valdiviezo-Galdamez v. Attorney General (“Valdiviezo-

Galdamez I”), 502 F.3d 285 (3d Cir. 2007). We held, in

pertinent part, that substantial evidence did not support the IJ’s

determination that Valdiviezo-Galdamez had failed to establish

that the harm he suffered in Honduras was on account of his

membership in the group consisting of young men who had

been recruited by gangs and had refused to join. Id. at 290. We

remanded to the BIA for it to address the threshold question of

whether “young men who have been actively recruited by gangs

and who have refused to join the gangs” is a “particular social

group” within the meaning of the INA - an issue that neither the

IJ nor the BIA had decided – and which we declined to decide

in the first instance. Id. We also directed the BIA to address

whether the injures that Valdiviezo-Galdamez suffered rose to

the level of persecution. Id. at 291. In addition, we held that

the IJ erred in his analysis of whether Valdiviezo-Galdamez

could safely relocate within Honduras. Id. at 291-92. Finally,

we held that the IJ erred in denying the application for relief

under the CAT because the IJ ignored relevant evidence and

remanded for consideration of the relevant evidence in light of

our decision in Silva-Rengifo v. Attorney General, 473 F.3d 58

8

(3d Cir. 2007). Id. at 292-93. There, we addressed the standard

for proving government acquiescence to torture.

On remand, the BIA again rejected Valdiviezo-

Galdamez’s claims.3 The BIA concluded that Valdiviezo-

Galdamez failed to show that he had experienced past

persecution or had a well-founded fear of future persecution

“on account of” a classification that is protected under the INA.

3

Valdiviezo-Galdamez was represented by Nicole

Simon at his first hearing before the IJ, as well as in his first

appeal to the BIA. He was also represented by counsel,

Martin P. Duffey and Ayodele Gansallo, on his first petition

for review with us. After we remanded, the BIA sent a notice

of remand to Valdiviezo-Galdamez and Simon advising them

that the case had been put on the docket for adjudication and

that if Valdiviezo-Galdamez wished to be represented by

counsel, that representative must file a new entry of

appearance unless that one had already been filed. However,

no entry of appearance was filed. Only the government filed

a brief after the remand.

The BIA’s October 22, 2008 decision following

remand stated that he had appeared pro se. However, prior

to the BIA’s decision, Gansallo, who had not entered an

appearance with the BIA after remand, and did not seek an

opportunity to file a brief, sent a September 23, 2008, letter to

the BIA advising the BIA that it was required to consider the

social group issues on remand. The BIA did send a courtesy

copy of its October 22, 2008 decision to Gansallo.

9

App. 10-11. The BIA also noted that it had decided the

“closely analogous” case of Matter of S-E-G., 24 I. & N. Dec.

579 (BIA 2008), after we remanded Valdiviezo-Galdamez’s

petition for review. App. 11. In Matter of S-E-G, the BIA held

that Salvadoran youth who were subjected to recruitment efforts

by the Mara Salvatrucha, and who resisted gang membership

“based on their own personal, moral and religious opposition to

the gang’s values and activities,” did not constitute a “particular

social group.” Id. at 579. In again rejecting Valdiviezo-

Galdamez’s claim, the BIA relied on Matter of S-E-G and its

companion case, Matter of E-A-G, 24 I. & N. Dec. 591 (BIA

2008). The BIA concluded that it had previously held that a

“particular social group” is a group whose members share a

common, immutable characteristic that members either cannot

change, or should not be required to change because it is

fundamental to their individual identities or consciences. App.

11. In Matter of E-A-G, the Board concluded that it would give

“greater specificity” to that test by adding the concepts of

“particularity” and “social visibility.” Id.

Here, as in Matter of S-E-G, the BIA reasoned that the

proposed “particular social group” of “Honduran youth who

have been actively recruited by gangs but have refused to join

because they oppose gangs” lacked “particularity” because it

was a “potentially large and diffuse segment of society” and

“too broad and inchoate” to qualify for relief under the INA.

App. 11. The BIA believed that the proposed social group

lacked “social visibility” as required under Matter of E-A-G

because persons who resist gangs were not shown to be socially

visible or a recognizable group or segment of Honduran society,

and the risk of harm Valdiviezo-Galdamez feared was actually

10

an individualized gang reaction to his specific behavior.4 App.

11.

The BIA also concluded that Valdiviezo-Galdamez’s

claim of persecution on account of political opinion was

foreclosed by INS v. Elias-Zacarias, 502 U.S. 478 (1992).

There, the Supreme Court held that a guerrilla organization’s

attempt to conscript a Guatemalan native into its military did not

necessarily constitute persecution on account of political

opinion. However, the Court did not there address the issue of

whether the alien could qualify for asylum as a member of a

particular social group because he argued that his opposition

was a “political opinion” that qualified for relief. The Court

rejected that proposition because the alien did not establish that

he would be prosecuted because of that political opinion and not

“because of his refusal to fight.” Id. at 483.

In rejecting Valdiviezo-Galdamez’s appeal, the BIA

reasoned that although he claimed to fear gang retaliation, he

“failed to show a political motive in resisting gang recruitment

or a well-founded fear of future persecution on account of his

political opinion.” App. 12. The BIA noted that there was “no

4

Because the BIA found that Honduran youth who

have been recruited by gangs but have refused to join because

they oppose gangs was not a “particular social group” within

the meaning of the INA, it did not have to decide whether the

government was unable or unwilling to protect Valdiviezo-

Galdamez or whether Valdiviezo-Galdamez could have safely

relocated within Honduras.

11

evidence” that Valdiviezo-Galdamez was “politically active” or

made any “anti-gang political statements.” Id. According to the

BIA, Valdiviezo-Galdamez did not provide any evidence that

the gang “imputed, or would impute to him, an anti-gang

political opinion, or would be interested in him for any reason

other than to simply increas[e] their ranks.” Id.

The BIA also denied Valdiviezo-Galdamez’s CAT claim

because he failed to show past conduct rising to the level of

torture. In addition, even assuming arguendo, that he had

established it was “more likely than not” that he would be

tortured by the gang, the Board reasoned that he had not

established that the torture would be inflicted with the

acquiescence of a public official. Id. at 13.

This petition for review followed.

III. STANDARD OF REVIEW

Our review of questions of law is de novo. Kamara v.

Attorney General, 420 F.3d 202, 210-11 (3d Cir. 2005). We

review the BIA’s statutory interpretation of the Immigration and

Nationality Act under the deferential standard set forth in

Chevron v. Natural Resources Defense Counsel, 467 U.S. 837

(1984). Lukwago v. Ashcroft, 329 F.3d 157, 162 (3d Cir. 2003).

Under that analytical framework, if the statute is silent or

ambiguous about an issue, we must determine if the agency’s

interpretation is based on a permissible construction of the

statute. Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993). We

review the Board’s findings of fact under the “substantial

evidence” standard, Tarrawally v. Ashcroft, 338 F.3d 180, 186

12

(3d Cir. 2003). We can only reverse the Board’s decision if

“any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B). See INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992).

IV. GENERAL LEGAL PRINCIPLES

A. Asylum and withholding of removal.

Section 208 of the INA gives the Attorney General

discretion to grant asylum to removable aliens. 8 U.S.C. §

1158(a). However, that relief can only be granted if the

applicant is a “refugee.” Id. “[R]efugee” is defined as:

[A]ny person who is outside any

country of such person’s

nationality or, in the case of a

person having no nationality, is

outside of any country in which

such person last habitually resided,

and who is unable or unwilling to

avail himself or herself of the

protection of that country because

of persecution or a well-founded

fear of persecution on account of

race, religion, nationality,

membership in a particular social

group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). Accordingly, an alien’s ability to

establish that s/he is entitled to relief as a refugee turns on

whether s/he can establish persecution “on account of” one of

the five statutory grounds. INS v. Elias-Zacarias, 502 U.S. 478

13

(1992).

An applicant who establishes past persecution is “entitled

to a presumption that his[/her] life or freedom will be threatened

if [s/]he returns.” Gabuniya v. Attorney General, 463 F.3d 316,

321 (3d Cir. 2006); see 8 C.F.R. § 208.16(b)(1). Where an

applicant is unable to demonstrate that s/he has been the victim

of past persecution, the applicant nonetheless becomes eligible

for asylum upon demonstrating a well-founded fear of future

persecution if returned to his/her native country. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).

The well-found fear of persecution standard involves both a

subjectively genuine fear of persecution and an objectively

reasonable possibility of persecution. INS v. Cardoza-Fonseca,

480 U.S. 421, 430-31 (1987). The subjective prong requires a

showing that the fear is genuine. Mitey v. INS, 67 F.3d 1325,

1331 (7th Cir. 1995). Determining whether the fear of

persecution is objectively reasonable requires ascertaining

whether a reasonable person in the alien’s circumstances would

fear persecution if returned to a given country. Chang v. INS,

119 F.3d 1055, 1065 (3d Cir. 1997). If

If the persecution was not conducted directly by the

government or its agents, the petitioner must also establish that

it was conducted “by forces the government is unable or

unwilling to control.” Kibinda v. Attorney General., 477 F.3d

113, 119 (3d Cir. 2007).

Withholding of removal is mandatory if “the Attorney

General determines that [the] alien’s life or freedom would be

threatened” on account of a protected ground. 8 U.S.C. §

14

1253(h)(1) (re-codified, as amended, at 8 U.S.C. § 1231(b)(3)).

To qualify for withholding of removal, an alien must establish

a “clear probability of persecution,” i.e., that it is more likely

than not, that s/he would suffer persecution upon returning

home. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). Since

this standard is more demanding than that governing eligibility

for asylum, an alien who fails to qualify for asylum is

necessarily ineligible foI wir withholding of removal. Zhang v.

Slattery, 55 F.3d 732, 738 (2d Cir. 1995).

B. Relief under the CAT.

“An applicant for relief on the merits under [Article III]

of the Convention Against Torture bears the burden of

establishing ‘that it is more likely than not that he or she would

be tortured if removed to the proposed country of removal.’”

Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002)

(quoting 8 C.F.R. § 208.16(c)(2)). “The United States Senate

specified this standard, as well as many of the other standards

that govern relief under the Convention, in several

‘understandings’ that it imposed on the United States’

ratification of the Convention Against Torture.” Id. at 175

(citations omitted). “The standard for relief has no subjective

component, but instead requires the alien to establish, by

objective evidence, that [s/]he is entitled to relief.” Id. (citation

and internal quotations omitted). The alien’s testimony, if

credible, may be sufficient to sustain the burden of proof

without corroboration. Mansour v. INS, 230 F.3d 902, 907 (7th

Cir. 2000) (citing 8 C.F.R. § 208.16(c)(2)). If an alien meets his

or her burden of proof, withholding of removal or deferring of

removal is mandatory. INA § 241(b)(3); 8 C.F.R. §§ 208.16 -

15

208.18.

Under the implementing regulations for the Convention:

Torture is defined as an act by

which severe pain or suffering,

whether physical or mental, is

intentionally inflicted on a person

for such purposes as obtaining

from him or her or a third person

information or a confession,

punishing him or her for an act he

or she or a third person has

committed or is suspected of

having committed, or intimidating

or coercing him or her or a third

person, or for any reason based on

discrimination of any kind, when

such pain or suffering is inflicted

by or at the instigation of or with

the consent or acquiescence of a

public official or other person

acting in an official capacity.

8 C.F.R. § 208.18(a)(1).

“[T]he regulations clearly state that there is no

acquiescence to torture unless the relevant officials know about

the torture before it occurs.” Sevoian, 290 F.3d at 176 (citing

8 C.F.R. § 208.18(a)(7)) (emphasis in original). In Silva-

Rengifo v. Attorney General, 473 F.3d 58, 70 (3d Cir. 2007), we

held that “acquiescence to torture [as used in the regulation]

16

requires only that government officials remain willfully blind to

torturous conduct and breach their legal responsibility to prevent

it.” The regulations also provide:

(3) In assessing whether it is more

likely than not that an applicant

would be tortured in the proposed

country of removal, all evidence

relevant to the possibility of future

torture shall be considered,

including, but not limited to:

(i) Evidence of past torture

inflicted upon the applicant;

(ii) Evidence that the applicant

could relocate to a part of the

country of removal where he or she

is not likely to be tortured;

(iii) Evidence of gross, flagrant or

mass violations of human rights

within the country of removal,

where applicable; and

(iv) Other relevant information

regarding conditions in the country

of removal.

8 C.F.R. § 208.16(c)(3). “[C]ountry conditions alone can play

a decisive role [in determining if relief is warranted]. . . [and]

the law does not require that the prospective risk of torture be

17

on account of certain protected grounds.”5 Kamalthas v. INS,

251 F.3d 1279, 1280 (9th Cir. 2001).

“Torture is an extreme form of cruel and inhuman

treatment and does not include lesser forms of cruel and

inhuman treatment or punishment that do not amount to

torture.” 8 C.F.R. § 1208.18(a)(2). Therefore, “even cruel and

inhuman behavior by government officials may not implicate

the torture regulations.” Sevoian, 290 F.3d at 175. “[T]orture

covers intentional governmental acts, not negligent acts or acts

by private individuals not acting on behalf of the government.”

In re J-E-, 23 I. & N. Dec. 291, 299 (BIA 2002). The BIA has

also held that “[v]iolence committed by individuals over whom

the government has no reasonable control does not implicate”

relief under the CAT. In re Y-L-, A-G-, R-S-R-, 23 I. & N. Dec.

270, 280 (BIA 2002). Similarly:

the existence of a consistent pattern of gross,

flagrant, or mass violations of human rights in a

particular country does not, as such, constitute a

sufficient ground for determining that a particular

person would be in danger of being subjected to

torture upon his or her return to that country.

Specific grounds must exist that indicate that the

individual would be personally at risk

.

5

Because the risk of torture does not need to be on

account of certain protected grounds, “the inability to state a

cognizable asylum claim does not necessarily preclude relief

under the [CAT].” Kamalthas, 251 F.3d at 1280.

18

In re S-V-, 22 I. & N. Dec. 1306, 1313 (BIA 2000).

V. DISCUSSION

Although we will address each of the arguments

Valdiviezo-Galdamez makes in support of his petition for

review, his principal claim is clearly that the BIA erred by

requiring “particularity” and “social visibility” to establish that

he is a member of a particular social group. He argues that is

contrary to, and inconsistent with, the text of the INA.

Before we can address the merits of this claim, we must

first address the government’s claim that we have no

jurisdiction to consider Valdiviezo-Galdamez’s challenge to the

BIA’s requirements that a group must have “particularity” and

“social visibility” to constitute a “particular social group.” The

government argues that we cannot reach the merits because

Valdiviezo-Galdamez failed to exhaust his administrative

remedies with respect to that issue.

The government notes that in May 2008, the BIA

notified Valdiviezo-Galdamez of its briefing schedule on

remand, but Valdiviezo-Galdamez did not file a brief. The

government also notes that Ayodele Gansallo, who had

represented Valdiviezo-Galdamez on his prior petition for

review, did send the BIA a letter in September 2008 advising

the Board that it was required to consider the social group

issues on remand. See n.3, supra. However, Gansallo neither

entered an appearance nor filed a brief addressing the issues

raised by the Board’s discussion of “particular social group” in

Matter of S-E-G, supra, and Matter of E-A-G, supra. As we

19

have explained, in those cases, the Board rejected claims for

asylum on account of being a member of a particular social

group based on the aliens’ opposition to gang recruitment.

Thus, the government believes that Valdiviezo-Galdamez

“failed to present his challenges to the [BIA’s] interpretation of

‘particular social group’ articulated in its 2006-2008

decisions.”6 Government’s Br. at 18. Accordingly, the

government contends that we have no jurisdiction because

Valdiviezo-Galdamez failed to exhaust his administrative

remedies because he did not challenge the BIA’s “particular

social group” analysis in his petition for review.

Prior to raising an issue for judicial review, a petitioner

must exhaust all administrative remedies available as of right

regarding that issue. 8 U.S.C. § 1252(d)(1); Sandie v. Att’y

Gen., 562 F.3d 246, 250 n.1 (3d Cir. 2009). The government is

correct in arguing that this is a jurisdictional requirement. See

Hoxha v. Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009) (“[I]ssue

exhaustion as required by § 1252(d)(1) is a jurisdictional rule.”).

Requiring petitioners to raise all issues before the BIA permits

the agency “to resolve a controversy or correct its own errors

before judicial intervention.” Bonhometre v. Gonzales, 414 F.3d

442, 447 (3d Cir. 2005).

6

In Matter of S-E-G, the BIA noted that in 2006

through 2008, it had rendered decisions that “membership in a

purported social group requires that the group have particular

and well-defined boundaries, and that it possesses a

recognized level of social visibility.” 24 I. & N. at 582.

20

It is undisputed that Valdiviezo-Galdamez did not

address the BIA’s “particular social group” analysis, i.e., its

requirements for “particularity” and “social visibility,”

following our remand to the BIA. However, that does not

automatically deprive us of jurisdiction now. In Lin v. Attorney

General, 543 F.3d 114 (3d Cir. 2008), we held that “the BIA’s

consideration of an issue is sufficient to provide us with

jurisdiction over that issue” even if the petitioner fails to raise

the issue before the BIA. 543 F.3d at 123 n.7. Here, the BIA

held that the “particular social group” proposed by Valdiviezo-

Galdamez did not qualify for asylum consideration because it

lacked “particularty” and “social visibility.” Since the BIA

raised the issue sua sponte, we have jurisdiction over

Valdiviezo-Galdamez’s challenge to the BIA’s requiring

“particularity” and “social visibility” as a condition precedent to

qualifying for relief from removal. Accordingly, we will address

the merits of his claim that he is a member of a particular social

group for purposes of establishing that he is a “refugee.”

1. The BIA erred in denying the

application for asylum.

Valdiviezo-Galdamez makes three arguments in support

of his contention that the BIA erred in denying his application

for asylum. We consider each separately.

A. The BIA erred by applying a new standard to

determine

membership in a “particular social group.”

To understand this argument, some background

21

information is necessary. As noted above, pursuant to INA §

208, an alien must establish not only that s/he has been

persecuted in the country of origin, but that such persecution

was “on account of” one of the grounds specified in that statute.

As also noted above, Valdiviezo-Galdamez is arguing that he is

entitled to relief based on persecution on account of his

membership in “a particular social group.”

In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), we wrote:

Both courts and commentators have

struggled to define “particular

social group.” Read in its broadest

literal sense, the phrase is almost

completely open-ended. Virtually

any set including more than one

person could be described as a

“particular social group.” Thus, the

statutory language standing alone is

not very instructive.

Id. at 1238 (footnotes omitted). The concept is even more

elusive because there is no clear evidence of legislative intent.

Id. at 1239. We explained in Fatin, that the “phrase ‘particular

social group’ was first placed in the INA when Congress

enacted the Refugee Act of 1980,” but the legislative history of

the Refugee Act “does not reveal what, if any, specific meaning

the members of Congress attached to the phrase. . .[,]” other

than to make it clear that Congress intended “to bring United

States refugee law into conformance with the 1967 United

Nations Protocol Relating to the Status of Refugees . . . to which

the United States acceded in 1968.” Id. (footnote and citations

22

omitted). Thus, in Fatin, we reasoned that it was “appropriate

to consider what the phrase ‘particular social group’ was

understood to mean in the Protocol.” Id.

Article I of the Protocol generally

adopted the definition of a

“refugee” contained in Article I of

the United Nations Convention

Relating to the Status of Refugees.

This latter provision defined a

“refugee” using terms – i.e., “race,

religion, nationality, membership in

a particular social group or political

opinion” – virtually identical to

those now incorporated in the INA.

W hen the C onfe rence of

Plenipotentiaries was considering

the Convention in 1951, the phrase

“membership in a particular social

group” was added to this definition

as an “afterthought.” The Swedish

representative proposed this

language, explaining only that it

was needed because “experience

has shown that certain refugees had

been persecuted because they

belonged to particular social

groups,” and the proposal was

adopted. Thus, neither the

legislative history of the relevant

United States statutes nor the

23

negotiating history of the pertinent

international agreements sheds

much light on the meaning of the

phrase “particular social group.”

Id. (citations omitted).

From 1985 until 2006, the BIA issued a number of

decisions dealing with the meaning of “particular social group.”

The BIA first interpreted the phrase in Matter of Acosta, 19 I. &

N. Dec. 211 (BIA 1985), overruled on other grounds by Matter

of Mogharrabi, 19 I. & N. Dec. 201 (BIA 1985). There, the

alien argued that voluntary members of a taxi cab cooperative

who refused to yield to anti-government guerrillas in El

Salvador constituted a “particular social group.” The guerrillas

“targeted small businesses in the transportation industry for

work stoppages, in hopes of damaging El Salvador’s economy.”

19 I. & N. Dec. at 216. The BIA rejected that claim. It noted

that the UN Protocol refers to race, religion, nationality and

political opinion, as well as membership in a particular social

group. It then applied the principle of ejusdem generis,7 and

7

“(T)he ‘ejusdem generis rule’ is, that where general

words follow an enumeration of persons or things, by words

of a particular and specific meaning, such general words are

not to be construed in their widest extent, but are to be held as

applying only to persons or things in the same general kind or

class as those specifically mentioned. The rule, however, does

not necessarily require that the general provision be limited in

(continued...)

24

interpreted “persecution on account of membership in a

particular social group” as used in the INA

to mean persecution that is directed

toward an individual who is a

member of a group of persons all of

whom share a common, immutable

characteristic. The shared

characteristic might be an innate

one such as sex, color, or kinship

ties, or in some circumstances it

might be a shared past experience

such as former military leadership

or land ownership. The particular

kind of group characteristic that

will qualify under this construction

remains to be determined on a case-

by-case basis. However, whatever

the common characteristic that

defines the group, it must be one

that the members of the group

7

(...continued)

its scope to the identical things specifically named. Nor does

it apply when the context manifests a contrary intention.”

United States v. Walasek, 527 F.2d 676, 679 n.10 (3d Cir.

1975) (quoting Black’s Law Dictionary 608 (Rev. 4th ed.

1968).

25

either cannot change, or should not

be required to change because it is

fundamental to their individual

identities or consciences.

Id. at 233-34. The BIA reasoned that the proffered group was

not a “particular social group” within the meaning of the INA

because the identifying characteristic (being a taxi driver who

refused to participate in guerilla-sponsored work stoppages) was

not immutable. The taxi drivers could avoid any persecution by

changing jobs or acceding to the guerrillas’ demands to

participate in work stoppages, and the BIA did not consider

either fundamental to identity or conscience. Id. at 234.

In subsequent cases, the BIA relied upon Acosta in

finding that a number of groups constituted a “particular social

group” under the INA. In Matter of Fuentes, 19 I. & N. Dec.

658 (BIA 1988), the BIA held that “former members of the

national police of El Salvador” could form a “particular social

group” because the alien’s status as a former policeman is “an

immutable characteristic, as it is one beyond the capacity of the

[alien] to change.” Id. at 662. In Matter of Toboso-Alfonso, 20

I. & N. Dec. 819 (BIA 1990), the BIA held that homosexuals in

Cuba could constitute a “particular social group” because the

Cuban government required homosexuals to register, report

regularly and to undergo physical examinations and that “once

registered by the Cuban government as a homosexual, that

characteristic [was not] subject to change.” Id. at 821-23. In In

re H-, 21 I. & N. Dec. 337 (BIA 1996), the BIA found a

familial sub-clan in Somalia to be a “particular social group.”

The BIA explained: “The record before us makes clear not only

26

that the Marehan share ties of kinship, but that they are

identifiable as a group based upon linguistic commonalities.”

Id. at 343. In In re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA

1996), the BIA found a “particular social group” to be “young

women of the Tchamba-Kunsunto Tribe who had not had been

subjected to FGM [female genital mutilation] as practiced by

that tribe, and who oppose the practice.” Id. at 365. The BIA

reasoned:

In accordance with Acosta, the

particular social group is defined

by common characteristics that

members of the group cannot

change, or should not be required

t o c h an g e b ec a u s e s u c h

characteristics are fundamental to

their individual identities. The

characteristics of being a “young

woman” and a “member of the

Tchamba-Kunsunto Tribe” cannot

be changed. The characteristic of

having intact genitalia is one so

fundamental to the individual

identity of a young woman

that she should not be required to change it.

Id. at 366. In In re V-T-S, 21 I. & N. Dec. 792 (BIA 1997), the

BIA found that “Filipinos of mixed Filipino-Chinese ancestry”

constituted a “particular social group” because the

characteristics of being a Filipino of mixed Filipino-Chinese

ancestry “are . . . immutable.” Id. at 798. The BIA also relied

on country reports that showed that “[a]pproximately 1.5

27

percent of the Philippine population has an identifiable Chinese

background.” Id.

However, in Matter of Vigil, 19 I. & N. Dec. 572 (BIA

1988), the BIA held that the group of “young, male, unenlisted,

urban Salvadorans” was not a “particular social group” because

the factors which identify the group “are not factors that are

‘fundamental to individual identity or conscience.’” Id. at 574-

75.

In re R-A, 22 I. & N. Dec 906 (BIA 1999),8 the BIA

began to add to its interpretation of the term “particular social

group” as enunciated in Acosta. The asylum applicant was a

8

In re R-A was later vacated by the Attorney General in

anticipation of new rules. In re R-A, 22 I. & N. Dec. 906

(A.G. Jan. 19, 2001). The proposed rule sought comment

about, inter alia, whether or not claims involving domestic

violence might be “conceptualized and evaluated within the

framework of asylum law.” Government’s Br. at 27 n.7.

Ultimately, the Attorney General directed the BIA to refer the

case to him for review, and remanded the case to the BIA for

reconsideration because no final rule had been issued. Id. In

doing so, the Attorney General recognized the four new

decisions of the BIA concerning “particular social group,” all

of which rested upon the analysis of In re R-A. Id. We

discuss those cases below; however, because the BIA’s

language in In re R-A is so important to the claim before us

here, we take the liberty of quoting the BIA’s reasoning in In

re R-A at length.

28

Guatemalan woman who was the victim of horrific domestic

violence. The IJ found that the applicant had been persecuted

because of her membership in the particular social group of

“Guatemalan women who have been intimately involved with

Guatemalan male companions, who believe that women are to

live under male domination.” Id. at 911. The BIA rejected that

grouping as qualifying for relief under the INA. The BIA

explained that the group the IJ accepted:

appears to have been defined

principally, if not exclusively, for

purposes of this asylum case, and

without regard to the question of

whether anyone in Guatemala

perceives this group to exist in any

form whatsoever. . . [T]he group is

defined largely in the abstract. It

seems to bear little or no relation to

the way in which Guatemalans

might identify subdivisions within

their own society or otherwise

perceive individuals to possess or

lack an important characteristic or

trait. The proposed group may

satisfy the basic requirement of

containing an immutable or

fundamental individual

characteristic. But, for the group to

be viable for asylum purposes, we

believe there must also be some

showing of how the characteristic

is understood in the alien’s society,

29

such that we, in turn, may

understand that the potential

persecutors in fact see persons

sharing the characteristic as

warranting suppression or the

infliction of harm.

Id. at 918 (emphasis added). In referring to its prior reliance on

the doctrine of ejusdem generis in Acosta, the BIA explained:

[W]e have ruled that the term

“particular social group” is to be

construed in keeping with the other

four statutory characteristics that

are the focus of persecution: race,

religion, nationality, and political

opinion. These other four

characteristics are ones that

typically separate various factions

within countries. . ..

In the present case, the [applicant]

has shown that women living with

abusive partners face a variety of

legal and practical problems in

obtaining protection or in leaving

the abusive relationship. But, the

[applicant] has not shown that

“Guatemalan women who have

been involved intimately with

Guatemalan male companions,

who believe that women are to live

30

under male domination” is a group

that is recognized and understood

to be a societal faction, or is

otherwise a recognized segment of

the population, in Guatemala. The

[applicant] has shown neither that

the victims of spouse abuse view

themselves as members of this

group, nor, most importantly, that

their male oppressors see their

victimized companions as part of

this group. . ..

if the alleged persecutor is not even

aware of the group’s existence, it

becomes harder to understand how

the persecutor may have been

motivated by the victim’s

“membership” in the group to

inflict the harm.

The [applicant’s] showing fails in

another respect, one that is

noteworthy in our ruling of Matter

of Kasinga. She has not shown

that spouse abuse itself is an

important societal attribute, or, in

other words, that the characteristic

of being abused is one that is

important within Guatemalan

society. The [applicant] has shown

31

official tolerance of her husband’s

cruelty toward her. But, for “social

group” purposes, she has not

shown that women are expected by

society to be abused, or that there

are any adverse societal

consequences to women or their

husbands if the women are not

abused. While not determinative,

the prominence or importance of a

characteristic within a society is

another factor bearing on whether

we will recognize that factor as

part of a “particular social group”

under our refugee provisions. If a

characteristic is important in a

given society, it is more likely that

distinctions will be drawn within

that society between those who

share and those who do not share

the characteristic.

***

The starting point for “social

group” analysis remains the

existence of an immutable or

fundamental individual

characteristic in accordance with

Matter of Acosta. We never

declared, however, that the starting

32

point for assessing social group

claims articulated in Acosta was

also the ending point. The factors

we look to in this case, beyond

Acosta’s “immutableness” test, are

not prerequisites, and we do not

rule out the use of additional

considerations that may properly

bear on whether a social group

should be recognized in an

individual case. But these factors

are consistent with the operation of

the other four grounds for asylum

and are therefore appropriate, in

our judgment, for consideration in

the “particular social group”

context.

Id. at 918-20 (emphasis added).

While the BIA was deciding whether social groups

proposed by asylum applicants constituted a “particular social

group” under the INA, various courts of appeals were also

trying to make sense of the concept. In Fatin v. INS, supra, we

held that the BIA’s construction of the term “particular social

group” in Matter of Acosta was a permissible construction of

the Immigration and Nationality Act and, therefore, entitled to

33

Chevron deference.9 12 F.3d at 1240. Accordingly, we adopted

that construction.10 Id. Applying the Acosta construction, we

recognized as a “particular social group” a group “consist[ing]

of Iranian women who [found] their country’s gender-specific

laws offensive and [did] not wish to comply with them.” Id. at

1241. However, we affirmed the BIA’s denial of relief because

the alien had not established the requisite persecution. Id. at

1243.

Following our adoption of the Acosta construction, we

held that the group of former child soldiers who had escaped a

guerrilla organization’s army constitutes a “particular social

group” within the meaning of the INS. Lukwago v. Ashcroft,

329 F.3d 157, 178-79 (3d Cir. 2003). However, we held that

homeless street children in Honduras did not. Escobar v.

9

In INS v. Cardoza-Fonseca, 480 U.S. 421, 445-50

(1987), the Supreme Court held that the BIA’s interpretation

of the Refugee Act is entitled to deference pursuant to the

standards set out in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

10

Several other courts of appeals have adopted the

Acosta construction. See Niang v. Gonzales, 422 F.3d 1187,

1199 (10th Cir. 2005); Castellano-Chacon v. INS, 341 F.3d

533, 546-48 (6th Cir. 2003); Yadegar-Sargis v. INS, 297 F.3d

596, 603 (7th Cir. 2002); Hernandez-Montiel v. INS, 225 F.3d

1084, 1093 (9th Cir. 2000); Safaie v. INS, 25 F.3d 636, 640

(8th Cir. 1994); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir.

1993).

34

Gonzales, 417 F.3d 363, 367 (3d Cir. 2005). In Escobar, we

explained: “Poverty, homelessness and youth are far too vague

and all encompassing to be characteristics that set the perimeters

for a protected group within the scope of the [INA].” Id. at

367.

Other courts of appeals have used variations of the

Acosta interpretation of “particular social group.” The Court of

Appeals for the Ninth Circuit has defined it as:

[A] collection of people closely

affiliated with each other, who are

actuated by some common impulse

or interest. Of central concern is

the existence of a voluntary

associational relationship among

the purported members, which

imparts some common

characteristic that is fundamental to

their identity as a member of that

discrete social group.

Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986).11

11

The Ninth Circuit later recognized that groups

sharing immutable characteristics, such as familial identity or

sexual identity, could also be considered social groups within

the meaning of the INA. Hernandez-Montiel v. INS, 225 F.3d

1084, 1093 (9th Cir. 2000) (holding that a “‘particular social

group’ is one united by a voluntary association, including a

(continued...)

35

The Court of Appeals for the Second Circuit has defined the

grouping as one “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.” Gomez v. INS, 947 F.2d 660, 664

(2d Cir. 1991) (citations omitted). Under that definition, “the

attributes of a particular social group must be recognizable and

discrete.” Id.

Beginning in 2006, the BIA added additional

considerations to its definition of “particular social group” as

first articulated in Acosta. In In re C-A, 23 I. & N. Dec. 951

(BIA 2006), aff’d sub nom. Castillo-Arias v. Attorney General,

446 F.3d 1190 (11th Cir. 2006), the BIA held that the “social

visibility” of the members of a claimed social group is an

important consideration in identifying the existence of a

‘particular social group.’” Id. It also held that “particularity”

was an element in the particular social group analysis. Id. at

957. Accordingly, the group of “former noncriminal drug

informants working against the Cali drug cartel” was not a

“particular social group” because the group [did] not have

“social visibility.” Id. There, the BIA began its analysis with

the definition used in Acosta. Id. at 955. It then noted that

11

(...continued)

former association, or by an innate characteristic that is so

fundamental to the identities or consciences of its members

that members either cannot or should not be required to

change it.”), overruled on other grounds by Thomas v.

Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc).

36

some of its prior decisions involving particular social groups

“have considered the recognizability, i.e., the social visibility,

of the group in question. Social groups based on innate

characteristics such as sex or family relationship are generally

easily recognizable and understood by others to constitute social

groups. ” Id. at 959 (citing Matter of H-). However, and rather

inexplicably, the Board also noted that some of its other

decisions “involved characteristics that were highly visible and

recognizable by others in the country in question.” Id. at 960

(citing, inter alia, Matter of Kasinga; Matter of Toboso-

Alfonso; and Matter of Fuentes). Finally, the Board explained

that “the two illustrations of past experiences that might suffice

for social group membership in Matter of Acosta, i.e., “former

military leadership or land ownership,” are easily recognizable

traits. Id.

The BIA noted that because visibility is an important

element in identifying the existence of a particular social group,

confidential informants do not have that requisite social

visibility because the “very nature” of being a confidential

informant “is such that it is generally out of the public view. In

the normal course of events, an informant against the Cali cartel

intends to remain unknown and undiscovered.” Id. Thus, the

BIA found the proposed group did not qualify for relief as a

“particular social group” under the INA.

The BIA also considered whether the group was defined

with the requisite particularity, and concluded that the proposed

group of “noncriminal informants” was “too loosely defined to

meet the requirement of particularity.” Id. at 957.

37

In In re A-M-E & J-G-U, 24 I. & N. Dec. 69 (BIA 2007),

aff’d sub nom. Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir.

2007), the BIA returned to the concepts of social visibility and

particularity. There, the BIA opined that the “[f]actors to be

considered in determining whether a particular social group

exists include whether the group’s shared characteristic gives

the members the requisite social visibility to make them readily

identifiable in society and whether the group can be defined

with sufficient particularity to delimit its membership.” Id. at

69. The proposed group was affluent Guatemalans who, it was

alleged, are at a greater risk of crime in general or who are

subject to extortion or robbery in particular. The BIA found

that “there is little in the background evidence of record to

indicate that wealthy Guatemalans would be recognized as a

group that is at a greater risk of crime in general or extortion or

robbery in particular.” Id. at 74. The BIA noted that “violence

and crime in Guatemala appear to be pervasive at all socio-

economic levels.” Id. at 75. Because of the pervasive nature of

crime “even people with relatively modest resources or income

may possess sufficient land, crops, or other forms of wealth to

make them potential targets” of criminals. Id. Accordingly, the

BIA held that the proposed group of affluent Guatemalans “fails

the ‘social visibility’ test.” Id.

The BIA also found that the group did not satisfy the

requirement of “particularity:”

The terms “wealthy” and “affluent”

standing alone are too amorphous

to provide an adequate benchmark

for determining group membership.

Depending on one’s perspective,

38

the wealthy may be limited to the

very top echelon; [or] might

include small business owners and

others living a relatively

comfortable existence in a

generally impoverished country.

Because 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. . . . The

characteristic of wealth or

affluence is simply too subjective,

inchoate, and variable to provide

the sole basis for membership in a

particular social group.

Id. at 76.

As noted, the BIA has applied its “social visibility” and

“particularity” requirements to proposed groups who resisted

gang recruitment efforts. In Matter of S-E-G, 24 I. & N. Dec.

579 (BIA 2008)12 , one of the proposed groups was: “Salvadoran

12

On August 26, 2008, a petition for review was

docked with the Court of Appeals for the Eighth Circuit sub

nom. Gonzales-Mira v. Mukasey, No. 08-2925 (8th Cir.

2008). On July 28, 2009, the BIA reopened the case and

remanded, but it did not vacate the precedential decision. On

(continued...)

39

youth who have been subjected to recruitment efforts by MS-13

and who have rejected membership based on their own

personal, moral, and religious opposition to the gang’s values

and activities.” Id. at 579. There, the BIA explained that it was

guided by its recent holdings in Matter of A-M-E & J-G-U and

Matter of C-A and held that: “membership in a purported social

group requires that the group have particular and well-defined

boundaries, and that it possess a recognized level of social

visibility.” Id. at 582. The BIA believed that “[t]hese concepts

of ‘particularity’ and ‘social visibility’ give greater specificity

to the definition of a social group, which was first determined

in Matter of Acosta.” Id.

With regard to “particularity,” the BIA wrote:

The essence of the particularity

requirement . . . is whether the

proposed group can accurately be

described in a manner sufficiently

distinct that the group would be

recognized, in the society in

question, as a discrete class of

12

(...continued)

September 9, 2009, the Court of Appeals for the Eighth

Circuit granted the government’s motion to dismiss for lack

of jurisdiction, and did not grant the petitioner’s request that

the court vacate the precedential opinion in light of the BIA’s

order reopening. Gonzales-Mira v. Holder, Nos. 08-2925, 09-

2678 (8th Cir. Sept. 9, 2009).

40

persons. While the size of the

proposed group may be an

important factor in determining

whether the group can be so

recognized, the key question is

whether the proposed description is

sufficiently particular, or is too

amorphous . . . to create a

benchmark for determining group

membership.

Id. at 584 (citation and internal quotation marks omitted). The

BIA held that the proposed group lacked particularity. The BIA

explained that the group “make[s] up a potentially large and

diffuse segment of society, and the motivation of gang members

in recruiting and targeting young males could arise from

motivations quite apart from any perception that the males in

question were members of a class.” Id.

The BIA held that the proposed group lacked “social

visibility” as well. It wrote:

The question whether a proposed

group has a shared characteristic

with the requisite “social visibility”

must be considered in the context

of the country of concern and the

persecution feared. The

[applicants] in this case are victims

of harassment, beatings, and threats

from a criminal gang in El

Salvador. There is little in the

41

background evidence of record to

indicate that Salvadoran youth who

are recruited by gangs but refuse to

join . . . would be perceived as a

group by society, or that these

individuals suffer from a higher

incidence of crime than the rest of

the population.

The [applicants] assert that the

have a specific reason (i.e., their

refusal to join the gang) to fear the

MS-13 would subject them to more

violence than the general

population. We do not doubt . . .

that gangs such as MS-13 retaliate

against those who refuse to join

their ranks. However, such gangs

have directed harm against anyone

and everyone perceived to have

interfered with, or who might

present a threat to, their criminal

enterprises and territorial power.

The [applicants] are therefore not

in a substantially different situation

from anyone who has crossed the

gang, or who is perceived to be a

threat to the gang’s interests.

Id. at 586-87.

42

The BIA denied relief because the proposed group

lacked “particularity” and “social visibility,” and was therefore,

not a “particular social group.”13

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

BIA held, inter alia, that Honduran males who resisted gang

recruitment did not constitute a “particular social group” within

the meaning of the INA. It explained:

[T]he particular social group

identified . . . as “persons resistant

to gang membership” lacks the

social visibility that would allow

others to identify its members as

part of such a group. Persons who

resist joining gangs have not been

shown to be part of a socially

visible group within Honduran

society, and the [applicant] does

not allege that he possesses any

characteristics that would cause

others in Honduran society to

recognize him as one who has

refused gang recruitment. Of

course, individuals who resist gang

13

In Santos-Lemus v. Mukasey, 542 F.3d 738, 744-747

(9th Cir. 2008), the court of appeals relied on Matter of S-E-G

and its own precedent in concluding that the proposed group

of “young men in El Salvador resisting gang violence” lacks

the “social visibility” and “particularity” to constitute a

“particular social group” within the meaning of the INA.

43

recruitment may face the risk of

harm from the refused gang. But

such a risk would arise from the

individualized reaction of the gang

to the specific behavior of the

prospective recruit. There is no

showing that membership in a

larger body of persons resistant to

gangs is of concern to anyone in

Honduras, including the gangs

themselves, or that individuals who

are part of that body of persons are

seen as a segment of the population

in any meaningful respect.

Id. at 594-95.

We include this rather lengthy summary of the legal

landscape surrounding claims of “a particular social group” in

order to address Valdiviezo-Galdamez’s argument that the BIA

erred by applying a new standard to adjudicate his claim. We

understand Valdiviezo-Galdamez to be arguing that the BIA

erred because it based its rejection of his claim on Matter of S-

E-G and Matter of E-A-G, which were decided on July 30,

2008, which he submits was past the time in which he could

have filed briefs addressing those decisions.14 However, the

14

On June 15, 2005, the IJ denied Valdiviezo-

Galdamez’s applications for relief. On February 27, 2006, the

(continued...)

44

concepts of “social visibility” and “particularity” discussed in

Matter of S-E-G and Matter of E-A-G did not originate in those

cases. Rather, as we have explained, both concepts arise from

In re C-A and In re A-M-E & J-G-U, which were decided prior

to our remand of Valdiviezo-Galdamez’s case on September 7,

2007.15 Thus, the BIA did not apply a new standard to

determine membership in a “particular social group.” Rather,

the BIA simply applied two other cases involving gang

recruitment-based social group claims in which the requirements

of “social visibility” and “particularity” were discussed and

applied.

B. The BIA erred by applying a new standard to

determine

membership in a “particular social group” without

providing Valdiviezo-Galdamez with notice or an

14

(...continued)

BIA summarily affirmed the IJ. On September 7, 2007, we

remanded to the BIA for a determination of whether

Valdiviezo-Galdamez’s proposed social group was a

“particular social group” within the meaning of the INA.

On April 9, 2008, the BIA issued a briefing schedule,

informing the parties that briefs were due by April 30, 2008.

It later extended the filing deadline to May 31, 2008. Two

months later, on July 30, 2008, the BIA decided Matter of S-

E-G and Matter of E-A-G.

15

In re C-A was decided on June 15, 2006 and In re A-

M-E & J-G-U was decided on January 31, 2007.

45

opportunity to be heard.

Valdiviezo-Galdamez submits that the BIA denied him

due process by applying Matter of S-E-G and Matter of E-A-G

to him without affording him notice of its intent to apply those

cases to decide his appeal or giving him an opportunity to file

a responsive brief. He contends that the BIA failed to send a

copy of its notice of briefing to his attorneys of record, Martin

P. Duffey and Ayodele Gansallo. See n.3, supra. He also

contends that the government certified that it served the notice

on Nicole Simon, who represented him in his first appeal to the

BIA. However, he claims that there is no reason to believe that

she received that notice because she had changed jobs and had

changed her address. This claim is meritless.

As noted, see n.3, supra, no one entered an appearance

with the BIA on Valdiviezo-Galdamez’s behalf on remand.

Thus, he had no attorney of record. Valdiviezo-Galdamez

appeared pro se and did not file a brief. Moreover, even if

Simon had changed her address, it was clearly her responsibility

to advise the BIA of that change. See 8 C.F.R. § 1003.2(b)(1).

Valdiviezo-Galdamez also contends that he was

deprived of due process because the BIA did not notify him that

it intended to apply Matter of S-E-G and Matter of E-A-G to his

case. This contention is also without merit. First, we know of

no authority that would require the BIA to have notified

Valdiviezo-Galdamez of the law it intended to apply to his case,

and he offers none that would support his claim. See Theagene

v. Gonzales, 411 F.3d 1107, 1112 (9th Cir. 2005) (finding that

the asylum applicant “cited no authority for the proposition that

46

an alien’s right to due process is . . . violated when the Board

applies controlling legal authority to a pending case without

informing the alien or providing an opportunity to respond”);

see also id. at 113 (“Though a tribunal often requests

supplemental briefs in such cases, applying new law to a

pending case without notice does not, under any authority cited

to us, offend due process.”). Second, the BIA is required to

apply new law to its review. Ortiz v. INS, 179 F.3d 1148, 1156

(9th Cir. 1999).

C. The BIA’s requirements of “social visibility” and

“particularity”

are contrary to the intent of the statute.

Valdiviezo-Galdamez submits that the requiring him to

prove “social visibility” and “particularity” was contrary to the

provisions of the INA. We interpret the argument as referring

to the term “particular social group” contained in the 8 U.S.C.

§ 1101(a)(42)(A). As we have explained, Congress there

defined the term “refugee” as used in the INA. However, his

argument that the two requirements are contrary to the intent of

the statute is problematic for reasons we explained in Fatin.

There, we observed that the statutory language “standing alone

is not very instructive” as to the meaning of the term “particular

social group,” and that “neither the legislative history of the

relevant United States statutes nor the negotiating history of the

pertinent international agreements sheds much light of the

meaning of the phrase ‘particular social group.’” 12 F.3d at

1239. That is why we looked to the BIA’s interpretation of the

phrase in Matter of Acosta, applied the Chevron analysis to that

interpretation, found the BIA’s interpretation permissible, and

47

held that the BIA’s interpretation was entitled to Chevron

deference.

D. The BIA’s requirements of “social visibility” and

“particularity”

are not entitled to Chevron deference.

As we have noted, see n.9, supra, in INS v. Cardoza-

Fonseca, 480 U.S. 421, 445-50 (1987), the Supreme Court held

that the BIA’s interpretation of the Refugee Act is entitled to

Chevron deference. Therefore, in considering the BIA’s

interpretation of the Act, we ask “whether Congress has directly

spoken to the precise question at issue.” Chevron, 467 U.S. at

842. If it has not, we may not “simply impose [our] own

construction of the statute.” Id. at 843. “Rather, if the statute

is silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is based

on a permissible construction of the statute.” Id.

Valdiviezo-Galdamez contends that the BIA’s

requirement that a “particular social group” possess the elements

of “social visibility” and “particularity” is not entitled to

Chevron deference.

(i). “Social Visibility”

In In re C-A, 23 I. & N. at 959-60, the BIA referred to

“social visibility” alternatively as “recognizability.” In

attempting to refine the concept of “social visibility,” the Board

explained that in its other decisions recognizing “particular

social groups,” the groups “involved characteristics that were

48

highly visible and recognizable by others in the country in

question.” In In re A-M-U & J-G-U, 24 I. & N. at 74, the BIA

held that “social visibility” requires that the “shared

characteristic of the group should generally be recognizable by

others in the community” and that the “members of the group

are perceived as a group by society.”

Valdiviezo-Galdamez contends that this requirement of

“social visibility” is inconsistent with a number of the BIA’s

prior decisions and is therefore not entitled to deference under

Chevron. We agree.16

In the wake of Acosta, the BIA recognized a number of

groups as “particular social groups” where there was no

indication that the group’s members possessed “characteristics

that were highly visible and recognizable by others in the

country in question” or possessed characteristics that were

otherwise “socially visible” or recognizable. Indeed, we are

16

We do note, however, that the Court of Appeals for

the First, Second, Eighth, Ninth and Eleventh Circuits have

all approved the BIA’s “social visibility” requirement for a

“particular social group” and have accorded it Chevron

deference. See, e.g., Scatambuli v. Holder, 558 F.3d 53, 59-

60 (1st Cir. 2009); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74

(2nd Cir. 2007); Davila-Mejia v. Mukasey, 531 F.3d 624, 629

(8th Cir. 2008); Santos-Lemus v. Mukasey, 542 F.3d 738, 746

(9th Cir. 2008); Castillo-Arias, 446 F.3d 1190, 1196 (11th

Cir. 2006).

49

hard-pressed to understand how the “social visibility”

requirement was satisfied in prior cases using the Acosta

standard. By way of examples noted above, the BIA has found

each of the following groups to constitute a “particular social

group” for purposes of refugee status: women who are opposed

to female genital mutilation (Matter of Kasinga), homosexuals

required to register in Cuba, (Matter of Toboso-Alfonso), and

former members of the El Salvador national police (Matter of

Fuentes). Yet, neither anything in the Board’s opinions in those

cases nor a general understanding of any of those groups,

suggests that the members of the groups are “socially visible.”

The members of each of these groups have characteristics which

are completely internal to the individual and cannot be observed

or known by other members of the society in question (or even

other members of the group) unless and until the individual

member chooses to make that characteristic known.

If a member of any of these groups applied for asylum

today, the BIA’s “social visibility” requirement would pose an

unsurmountable obstacle to refugee status, even though the BIA

has already held that membership in any of these groups

qualifies for refugee status if an alien can establish that s/he was

persecuted “on account of” that group membership.

Although we afforded the BIA’s interpretation of

“particular social group” Chevron deference in Fatin, this did

not give the agency license to thereafter adjudicate claims of

social group status inconsistently, or irrationally. “Agencies are

not free, under Chevron, to generate erratic, irreconcilable

interpretations of their governing statutes . . . Consistency over

time and across subjects is a relevant factor [under Chevron]

50

when deciding whether the agency’s current interpretation is

‘reasonable.’” Marmolejo-Campos v. Holder, 558 F.3d 903, 920

(9th Cir. 2009) (Berzon, J., dissenting) (citing Cardozo-

Fonseca, 480 U.S. at 446 n.30) (emphasis in original). Since the

“social visibility” requirement is inconsistent with past BIA

decisions, we conclude that it is an unreasonable addition to the

requirements for establishing refugee status where that status

turns upon persecution on account of membership in a particular

social group.

We are not the only court of appeals to express concerns

about the BIA’s requirement of “social visibility.” In Gatimi v.

Holder, 578 F.3d 711 (7th Cir. 2009), Gatimi was a Kenyan and

a member of the Kikuyu tribe. That tribe dominated Kenyan

politics at the relevant times. In 1995, Gatimi joined a Kikuyu

group called the “Mungiki.” Tribal practices included

compelling women to undergo female genital mutilation.

Gatimi defected from the Mungiki in 1999. As a result, he was

subsequently kidnaped and tortured by members of the Mungiki

group. That group also repeatedly sought out Gatimi’s wife in

order to have her undergo female genital mutilation.

Ultimately, the family fled to United States and sought asylum.

An IJ denied Gatimi’s application for asylum, holding,

inter alia, that defectors from the Mungiki did not constitute a

“particular social group.” The BIA affirmed on that basis. On

Gatimi’s petition for review, the Court of Appeals for the

Seventh Circuit noted that in one of its prior decisions,

Sepulveda v. Gonzales, 464 F.3d 770 (7th Cir. 2006), it had

held that:

[F]ormer subordinates of the

51

attorney general of Colombia who

had information about the

insurgents plaguing that nation

were a “particular social group.”

They had been targeted for

assassination by the insurgents, and

many had been assassinated. While

an employee could resign from the

attorney general’s office, he could

not resign from a group defined as

former employees of that office;

once a former employee, always a

former employee (unless one is

reemployed by one’s former

employer).

Gatimi, 578 F.3d at 615. In adjudicating Gatimi’s petition for

review, the court reasoned: “[w]e cannot see how this case can

be distinguished from Sepulveda, which the [BIA] did not cite.”

Id. Instead, the court of appeals noted that the BIA had cited

cases “which hold that a group must have ‘social visibility’ to

be a member of a ‘particular social group[.]’” Applying the

“social visibility” formula, the BIA had found that:

there was no evidence that Gatimi possesses any

characteristics that would cause others in Kenyan

society to recognize him as a former member of

Mungiki. . . . There is no showing that

membership in a larger body of persons resistant

to Mungiki is of concern to anyone in Kenya or

that such individuals are seen as a segment of the

52

population in any meaningful respect.

Id.

The court of appeals concluded that “[t]his formula [i.e.,

“social visibility’] cannot be squared with Sepulveda.” Id.

Significantly for our purposes, the court of appeals went on to

say:

[social visibility] makes no sense; nor has the

Board attempted, in this or any other case, to

explain the reasoning behind the criterion of

social visibility. Women who have not yet

undergone female genital mutilation in tribes that

practice it do not look any different from anyone

else. A homosexual in a homophobic society will

pass as heterosexual. If you are a member of a

group that has been targeted for assassination or

torture or some other mode of persecution, you

will take pains to avoid being socially visible; and

to the extent that the members of the target group

are successful in remaining invisible, they will

not be “seen” by other people in the society “as a

segment of the population.” Those former

employees of the Colombian attorney general

tried hard, one can be sure, to become invisible

and, so far as appears, were unknown to

Colombian society as a whole.

Id. We agree.

53

The court then explained the distinction between

Gatimi’s situation and that which confronted the Supreme Court

in Gonzales v. Thomas, 547 U.S. 183 (2006):

We are mindful of the Supreme

Court’s admonition to the courts of

appeals in Gonzales v. Thomas . .

. , that the Board’s definition of

“particular social group” is entitled

to deference. The issue in that case

was whether a family could be a

particular social group, a difficult

issue on which the Board had not

opined; and the Court held that the

Board should have an opportunity

to do so. But regarding “social

visibility” as a criterion for

determining “particular social

group,” the Board has been

inconsistent rather than silent. It

has found groups to be “particular

social groups” without reference to

social visibility,

Id. (citing In re Kasinga, In re Toboso-Alfonso, In re Fuentes

and In re Acosta).

“When an administrative agency’s decisions are

inconsistent, a court cannot pick one of the inconsistent lines

and defer to that one, unless only one is within the scope of the

agency’s discretion to interpret the statutes it enforces or to

54

make policy as Congress’s delegate.” Id. at 616. The Gatimi

court noted that other courts of appeals had deferred to the

Board on this issue, but the mere fact that some appellate courts

disagreed with its analysis was not persuasive. As the court

explained: “We just don’t see what work “social visibility”

does; the candidate groups flunked the basic “social group” test

. . . declared in . . . Acosta (where the test originated).” 578 F.3d

at 616.

The court of appeals reiterated its criticism of the

Board’s handling of “particular social group” claims in Benitez

Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009). There, the BIA

had denied an alien’s application for relief from removal based

on his claim that he was entitled to refugee status as a “tatooed,

former Salvadoran gang member.” The petitioner had joined

the gang when he was fourteen, but subsequently came to the

United States and became a “born-again Christian.” He argued

that if returned to El Salvador, he would be recognized as a

gang member because of his tattoos and forced to engage in

practices which violated his religious scruples. The BIA

concluded that the group that he claimed to be a member of did

not constitute a “particular social group” under the INA. Id. at

429. On review before the court of appeals, the government

relied on past BIA decisions and argued “that to be a ‘particular

social group’ a group must have ‘social visibility.’” Id. at 430.

In rejecting that position, the court explained:

By this the government means –

and its lawyer was emphatic at

argument . . . that you can be a

member of a particular social group

55

only if a complete stranger could

identify you as a member if he

encountered you in the street,

because of your appearance, gait,

speech pattern, behavior or other

discernable characteristic.

This position has some judicial

support, . . ., but we have rejected it

in Gatimi and other cases cited in

Gatimi, as a misunderstanding of

the use of “external” criteria to

identify a social group . . . .

“Visibility” in the literal sense in

which the Board sometimes used

the term might be relevant to

whether there is persecution, but it

is irrelevant to whether if there is

persecution it will be on the ground

of group membership. Often it is

unclear whether the Board is using

the term “social visibility” in the

literal sense, or in the “external

criterion” sense, or even-whether it

understands the difference.

Id (citations omitted). .

Here, the government contends that “social visibility”

56

does not mean on-sight visibility.17 Rather, we are told that

“social visibility” is a means to discern the necessary element of

group perceptibility, i.e., the existence of a unifying

characteristic that makes the members understood by others in

society to constitute a social group or recognized as a discrete

group in society. We have a hard time understanding why the

government’s definition does not mean “on-sight visibility,” and

we join the Court of Appeals for the Seventh Circuit in

wondering “ even-whether [the BIA] understands the

difference.”

As the courts have noted, members of some persecuted

groups that have been recognized as a “particular social group”

would certainly take pains to avoid being identified in a society

where they would face persecution if government agents knew

they belonged to the group.18 Yet, by attempting to avoid

persecution by blending in to the society at large, the Boards’

rational would cause them to forfeit eligibility for asylum based

on the persecution they would experience if recognized as a

member of the particular social group in their society.

Thus, the government’s attempt to add gloss to the BIA’s

reliance on “social visibility” is at odds with the phrase itself as

17

The government makes this contention despite its

apparent concession to the contrary in Benitez Ramos, 598

F.3d at 430, cited supra.

18

See Matter of Kasinga, Matter of Toboso-Alfonso,

and Matter of Fuentes, discussed, supra.

57

well as the BIA’s definition in In C-A and In re A-M-U & J-G-

U. Indeed, rather than adding gloss to the BIA’s interpretation,

the government seems to be attempting to spackle over the

cracks in the way the BIA has approached social group cases.

The government’s position appears to be little more than an

attempt to avoid the tension arising from the BIA’s various

interpretations of that phrase, and the fact that the BIA’s present

interpretation would have excluded the asylum claims that were

granted in In re Kasinga, In re Toboso-Alfonso, and In re

Fuentes. As we have noted, in each of those cases, the aliens’

social group claim was successful, even though the group in

question was not “socially visible.” Thus, we reject the

government’s attempt to graft that requirement onto Valdiviezo-

Galdamez’s claim here. For similar reasons, the government’s

attempt to graft the requirement of “particularity” onto social

group claims fares no better.

(ii). “Particularity”

Valdiviezo-Galdamez also argues that the BIA’s

requirement of “particularity” should not be afforded Chevron

deference. In Matter of S-E-G, the BIA explained:

The essence of the particularity

requirement . . . is whether the

proposed group can accurately be

described in a manner sufficiently

distinct that the group would be

recognized, in the society in

question, as a discrete class of

persons. While the size of the

proposed group may be an

58

important factor in determining

whether the group can be so

recognized, the key question is

whether the proposed description is

sufficiently particular, or is too

amorphous . . . to create a

benchmark for determining group

membership.

24 I. & N. Dec. at 584 (citation and internal quotation marks

omitted). Valdiviezo-Galdamez, presumably focusing on the

second sentence in the definition of “particularity,” contends

that there is nothing in the statutory language that suggests that

Congress intended to place any numerical limitation on the

protected ground of a “particular social group.” He notes that,

in deferring to the BIA under Acosta, courts of appeals have

said that “particular social group” “ encompass[es] any group,

however populous, persecuted because of shared characteristics

that are either immutable or fundamental.” Gao v. Gonzales,

440 F.3d 62, 67 (2d Cir. 2006), vacated on other grounds sub

nom. Keisler v. Gao, 552 U.S. 801 (2007). Accordingly,

Valdiviezo-Galdamez submits that the BIA’s attempt to impose

a numerical limitation is not entitled to deference.

The government responds by arguing that the

“particularity” requirement is not an attempt to impose a

numerical limitation on the size of a “particular social group.”

According to the government, “particularity” merely functions

to assess whether a proposed group has definable boundaries so

that it can constitute a distinct group, or a discrete class of

persons. In the government’s view, “particularity” serves a

59

different function from “social visibility” in determining

whether the asylum applicant has described a cognizable social

group. Thus, according to the government, “social visibility”

assesses whether the applicant has identified a group with a

unifying characteristic that is perceived as discrete or set apart

by the society, while “particularity” examines whether the

proposed unifying characteristic for the proposed group is

definable, as opposed to being too diffuse or subjective. The

government argues that these two concepts are related, but

distinct and that they have complimentary functions.

We do not believe that the government is using

particularity to impose a numerical or size limitation on the

meaning of “particular social group.” However, we are hard-

pressed to discern any difference between the requirement of

“particularity” and the discredited requirement of “social

visibility.” Indeed, they appear to be different articulations of

the same concept and the government’s attempt to distinguish

the two oscillates between confusion and obfuscation, while at

times both confusing and obfuscating. Indeed, “Particularity”

appears to be little more than a reworked definition of “social

visibility” and the former suffers from the same infirmity as the

latter. The government’s use of “particularity” is inconsistent

with the prior BIA decisions discussed in the “social visibility”

portion of this opinion. We therefore hold that adopting a

“particularity” requirement is unreasonable because it is

inconsistent with many of the BIA’s prior decisions.

In sum, because the BIA’s requirements that a “particular

social group” possess the elements of “social visibility” and

“particularity” are inconsistent with prior BIA decisions, those

60

requirements are not entitled to Chevron deference. By holding

that the BIA’s addition of the requirements of “social visibility”

and “particularity” to the definition of “particular social group”

it announced in Acosta is not entitled to Chevron deference, we

do not suggest that the BIA cannot add new requirements to, or

even change, its definition of “particular social group.” Clearly,

“an agency can change or adopt its policies.” Johnson v.

Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002). However, an

agency “acts arbitrarily if it departs from its established

precedents without announcing a principled reason for its

decision.” Id. (citation and internal quotation marks omitted).

If an agency “departs from an announced rule without

explanation or an avowed alteration, such action could be

viewed as arbitrary, capricious [or] an abuse of discrection.” Id.

(citation and internal quotation marks omitted) (bracket in

original).19 Here, as we have explained, the BIA’s addition of

the requirements of “social visibility” and “particularity” to its

definition of “particular social group” is inconsistent with its

prior decisions, and the BIA has not announced a “principled

reason” for its adoption of those inconsistent requirements.

Accordingly, we will grant the petition for review and remand

to the BIA for further proceedings consistent with this opinion.

2. The BIA erred in holding that Valdiviezo-Galdamez

was not

19

Of course, the BIA must not only announce a

“principled reason” for any changes it makes to its definition

of “particular social group,” any announced changes must be

based on a permissible construction of the statute.

61

eligible for asylum based upon his political opinion.

When we previously remanded to the BIA, Valdiviezo-

Galdamez also contended that he was entitled to asylum based

on his political opinion. He asserted that “he was persecuted

‘on account of his inherently political anti-gang opinion’ as

evident by his refusal to join the Mara Salvatrucha gang.” App.

11. The BIA rejected this claim, finding that it was foreclosed

by INS v. Elias-Zacarias, 502 U.S. 479 (1992). There, the

Supreme Court held that a guerrilla organization’s attempts to

conscript a Guatemalan native into its military forces did not

necessarily constitute persecution on account of political

opinion.

The foundation of Valdiviezo-Galdamez’s political

opinion argument is his contention that his refusal to join a gang

“was, by definition, the expression of a political opinion.”

Valdiviezo-Galdamez’s Br. at 41. He rests that argument upon

an unpublished decision in which an IJ held that a nineteen year

old Honduran male’s refusal to join Mara Salvatrucha was an

expression of political opinion. See Matter of D-V (San

Antonio, Texas Immigration Court, Sept. 2004). However,

Valdiviezo-Galdamez offers no higher authority to support his

contention that his refusal to join the Mara Salvatrucha was, by

definition, the expression of a political opinion.

Moreover, even if we assume that refusal to join a gang

is an expression of political opinion, there is no evidence that

his refusal to join was taken by the gang as an expression of that

political opinion. There is no evidence that he ever expressed to

the gang that he was opposed to membership in the gang

62

because of his claimed political opinion. To the extent that his

refusal to join the gang was based on his political opinion, his

refusal was based on an internally held political opinion which

cannot support a claim that he was persecuted on account of that

political opinion. Holding a political opinion, without more, is

not sufficient to show persecution on account of that political

opinion. Mendez-Barrera, 602 F.3d 21, 27 (1st Cir. 2010).

There must be evidence that the gang knew of his political

opinion and targeted him because of it. Id. However, there is

no such evidence here.

3. The BIA erred in denying Valdiviezo-Galdamez’s

application for relief under the CAT.

As noted, in denying Valdiviezo-Galdamez’s application

for relief under the CAT, the BIA first found that Valdiviezo-

Galdamez “failed to establish that it is more likely than not that

he will be subject[ed] to torture at the hands of the Mara

Salvatrucha gang.” App. 12. The BIA found that Valdiviezo-

Galdamez’s “numerous interactions” with the gang constituted

“harassment.” Id. It further found that the interactions “clearly

did not involve the degree of ‘severe pain and suffering’

contemplated as constituting torture.” Id. at 12-13. In sum, the

BIA found that Valdiviezo-Galdamez’s arguments regarding the

likelihood of torture “are speculative and not based on evidence

in the record.” Id. at 13.

The BIA also concluded that even if it is assumed

arguendo that it was more likely than not that he would be

tortured at the hands of the gang, Valdiviezo-Galdamez “failed

to establish that such torture would be “inflicted by or at the

63

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” Id.

(quoting 8 C.F.R. § 1208.18(a)(1)).

In this portion of his petition for review, Valdiviezo-

Galdamez contends that the BIA’s denial of his application for

relief under the CAT was error. We disagree.

Assuming arguendo that the treatment Valdiviezo-

Galdamez suffered at the hands of the Mara Salvatrucha

constituted torture, Valdiviezo-Galdamez must also show that

the torture was inflicted with the “acquiescence of a public

official or other person acting in an official capacity.” 8 C.F.R.

§ 208.18(a)(2). “Acquiescence to torture requires only that

government officials remain willfully blind to torturous conduct

and breach their legal responsibility to prevent it.” Silva-

Rengifo, 473 F.3d at 70.

Valdiviezo-Galdamez points to testimony that he sought

police protection on five different occasions, but the police were

either not able to help, or not willing to help by prosecuting the

gang members who were responsible. He testified that the

police would always tell him that they were investigating but

that at no point did he ever “see anything happen.” Instead,

Valdiviezo-Galdamez testified that he continued to suffer at the

hands of the gang.

In Valdiviezo-Galdamez’s view, the only reasonable

inference that can be drawn from these facts is that the police

were willfully blind to the gang’s torturous conduct and

breached their legal duty to prevent it. He rests his argument in

64

part upon In re O-Z & I-Z, 22 I. & N. Dec. 23, 26 (BIA 1998).

There, the asylum applicant had reported at least three incidents

of beatings and anti-Semitic threats, but the police took no

action other than writing a report. The BIA found that sufficient

to show that the government “was unable or unwillling to

control the [alien’s] attackers.” 20

However, as the government notes, Valdiviezo-

Galdamez’s proposed inference was not the only reasonable

inference that could be drawn here, and the BIA drew a

different, but equally reasonable inference from his testimony.

The Board explained:

We acknowledge that [Valdiviezo-

Galdamez] testified that he made

approximately five police reports

concerning his num erous

interactions with the gang, and that

the police indicated that they were

investigating the matter, but that he

never saw any progress. However,

the fact that [Valdiviezo-Galdamez]

was unaware of progress in the

investigation does not mean that the

20

As noted earlier, a claim that the government was

“unwilling or unable to control the the [alien’s] attackers” is

one which must be proven by an asylum applicant, not a

claimant for relief under the CAT. We assume that

Valdiviezo-Galdamez is citing to In re 0-Z & I-Z by way of an

analogy.

65

police were not taking measures to

deal with the problem in ways that

were not obvious to [Valdiviezo-

Galdamez]. Although [Valdiviezo-

Galdamez’s] testimony and the

background materials in the record

clearly reflect that criminal gangs

are a problem in Honduras, the

record also indicates that the

government seeks to combat the

problem and protect its citizens.

See, e.g., U.S. Department of State,

Honduras: Country Reports on

Human Rights Practices – 2004

( F e b r u a r y 2 0 0 5 ) (E x h . 4 )

(indicating the existence of joint

police and military patrols to

combat crimes and gangs, and the

existence of anti-gang legislation).

App. 13. Based upon that ambiguity in the testimony, and

applicable Counttry Reports, the BIA found that the government

of Honduras was not willfully blind to or did not acquiesce to

the gang’s activities.

We also reject Valdiviez-Galdamez’s contention that the

BIA could not rely on background materials in arriving at its

conclusion that the government was not willfully blind or did

not acquiese to the gang’s activities. He bases that contention

on a statement we made in a footnote in Valdiviezo-Galdamez

I. We wrote, inter alia:

66

We cannot accept the government’s

contention that the background

materials submitted at the hearing

support the IJ’s finding and denial

of the asylum claim. First, the IJ

did not address the relevant

question: whether the government

was “unwilling or unable” to

control the gang members. Second,

the materials referenced by the

government describe the general

negative attitude in Honduras

towards “street children” and

youths with tattoos, and do not

describe with any detail efforts by

the government to crack down on

gangs. The most relevant statement

in these materials is that: “During

the year, nearly half of all military

personnel were assigned for most

of the time to joint patrols with

police to prevent and combat high

levels of criminal and gang

violence.” This does not refute

Valdiviezo-Galdamez’s credible

testimony, which the IJ failed to

address, that the police took no

action in response to his complaints

that he was repeatedly attacked by

gang members. If anything, the

evidence that gang violence is a

67

serious problem in Honduras

provides additional support for

Valdiviezo-Galdamez’s claims.

502 F.3d at 289 n.2.

The “most relevant statement” we referred to in footnote

2 is taken from the findings of the United States Department of

State in Honduras: Country Reports on Human Rights

Practices, 2004 (Feb. 28, 2005). However, we do not believe

that this statement from Valdiviezo-Galdamez I precluded the

BIA from relying on country background materials on remand.

At the outset, we note that in Valdiviezo-Galdamez I we were

addressing whether the government was “unwilling or unable”

to control the gang members. As we have noted, that is an

appropriate inquiry in the context of an asylum claim. The

“unwilling or unable to” standard is not applicable to a claim for

relief under the CAT. Thus, the statement is dicta.

Moreover, even if the statement is interpreted as

precluding the BIA from relying on the Country Report itself,

the Country Report cited to other sources which dealt with the

Honduran government’s response to gang violence and activity.

For example, the Report described a 2002 law “outlawing gang

membership [and] prescrib[ing] prison terms from 3 to 12 years,

depending upon the individual’s level of involvement and

seniority.”

Moreover, the BIA did not rely solely on the Country

Report. It also considered media articles on the government’s

enforcement of its anti-gang law. App. 13. A September 2003

68

article noted that “Honduran police have been making a regular

practice in recent weeks of descending upon gang-ridden

neighborhoods at dawn,” and “hauling [young suspects] off to

jail.” App. 325. That same article noted that the Honduran

President asserted that the police focused “only on gang leaders,

with a goal of 2,000 arrests in the coming months.” App. 326.

It further noted that the President asserted that the “immediate

result [was] a 70 percent drop in homicides and an increase in

gang members looking to check into rehabilitation programs.”

App. 326

A February 2005 article cited a Presidential statement

that Honduras was “winning its fight against violence, mainly by

implementing” the anti-gang law. App. 332. In that same

article, the President stated that, over the last three years,

“Honduras has seen a 90 percent decrease in kidnappings and a

60 percent decrease in ‘maras’ activities, as 800 gang members

out of a total of almost 2,000 who were originally arrested were

now in jail.” App. 332.

These media reports clearly support the BIA’s finding

that the “government seeks to combat the [gang] problem and

protect its citizens.” Thus, the BIA’s conclusion that

Valdiviezo-Galdamez failed to show that it was “more likely

than not” that he would be tortured as a result of the alleged

“willful[] blind[ness]” by the Honduran government was

supported by substantial evidence. Accordingly, it did not err in

denying Valdiviezo-Galdamez’s application for relief under the

CAT.

69

VI. CONCLUSION

For all of the above reasons, we will grant the petition for

review and remand to the BIA for proceedings consistent with

this opinion, but will deny the petition for review on the claim

for relief under the CAT.

70

Valdiviezo-Galdamez v. Atty Gen USA

No. 08-4564

HARDIMAN, Circuit Judge, concurring in the judgment.

I agree with my colleagues that the BIA‘s decision in

this case raises concerns warranting remand, but I write

separately to express my understanding of the scope of the

BIA‘s discretion upon remand. In my view, the BIA is free to

adopt the additional requirements of ―particularity‖ and

―social visibility,‖ exactly as the Board has defined and

rationalized them over the last five years. The only problem

that I find with the BIA‘s evolving approach to ―particular

social group‖ cases is that the Board has failed to

acknowledge a change in course and forthrightly address how

that change affects the continued validity of conflicting

precedent. Accordingly, remand is necessary so the Board

can either choose between its reasonable new requirements

and its older but equally reasonable precedents, or reconcile

the two interpretations in a coherent way.

In addition, I am troubled by the BIA‘s factfinding in

this case. Should the BIA choose to adopt new requirements

for ―particular social group,‖ I believe that it must also

remand to the IJ for further factual development.

I

A

It is settled law that Chevron deference applies to BIA

interpretations of ―‗ambiguous statutory terms‘‖ in the INA.

Negusie v. Holder, 129 S. Ct. 1159, 1163–64 (2009) (quoting

INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)) (citing

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

1

U.S. 837, 842–43 (1984)). We have recognized that

―particular social group,‖ as used in the INA‘s definition of

―refugee,‖ 8 U.S.C. § 1101(a)(42)(A), is so ambiguous that

―[b]oth courts and commentators have struggled to define

[it],‖ and ―[r]ead in its broadest literal sense, the phrase is

almost completely open-ended.‖ Fatin v. INS, 12 F.3d 1233,

1238 (3d Cir. 1993). There should be no question, then, that

Chevron deference applies, as long as ―the agency‘s [reading

of the statute] is based on a permissible construction.‖

Chevron, 467 U.S. at 843.

The Supreme Court recognized in Chevron that ―[a]n

initial agency interpretation is not instantly carved into

stone.‖ 467 U.S. at 863. It is therefore possible for the BIA‘s

current interpretation of the statute to conflict with prior

decisions without constituting an ―impermissible‖ or

―unreasonable‖ reading of the INA. The BIA must, however,

provide ―explanation or an ‗avowed alteration,‘‖ or its change

―could be viewed as ‗arbitrary, capricious, [or] an abuse of

discretion.‘‖ Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir.

2002) (quoting INS v. Yang, 519 U.S. 26, 32 (1996)); see also

Administrative Procedure Act, 5 U.S.C. § 706(2)(A). We

have held that an agency may change course and reinterpret

statutes ―as long as it can justify its change with a ‗reasoned

analysis.‘‖ Horn v. Thoratec Corp., 376 F.3d 163, 179 (3d

Cir. 2004) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). In FCC v. Fox,

Television Stations, Inc., 129 S. Ct. 1800 (2009), the Supreme

Court described the ―reasoned analysis‖ requirement this

way:

To be sure, the requirement that an agency

provide reasoned explanation for its action

would ordinarily demand that it display

2

awareness that it is changing position. An

agency may not, for example, depart from a

prior policy sub silentio or simply disregard

rules that are still on the books. And of course

the agency must show that there are good

reasons for the new policy. But it need not

demonstrate to a court‘s satisfaction that the

reasons for the new policy are better than the

reasons for the old one; it suffices that the new

policy is permissible under the statute, that there

are good reasons for it, and that the agency

believes it to be better, which the conscious

change of course adequately indicates. This

means that the agency need not always provide

a more detailed justification than what would

suffice for a new policy created on a blank slate.

Sometimes it must—when, for example, its new

policy rests upon factual findings that contradict

those which underlay its prior policy; or when

its prior policy has engendered serious reliance

interests that must be taken into account. It

would be arbitrary or capricious to ignore such

matters. In such cases it is not that further

justification is demanded by the mere fact of

policy change; but that a reasoned explanation

is needed for disregarding facts and

circumstances that underlay or were engendered

by the prior policy.

129 S. Ct. 1800, 1811 (2009) (emphasis in original; citations

omitted).

3

B

I agree with my colleagues that the BIA‘s

―particularity‖ and ―social visibility‖ requirements are

changes in position from the longstanding test the BIA

articulated in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A.

1985), which for over twenty years—from 1985 until 20061—

provided the most widely-adopted definition of ―particular

social group.‖ See generally Castillo-Arias, 446 F.3d at 1196

(listing the six circuit courts of appeals, including the Third

Circuit, that ―deferred to the Acosta formulation,‖ and two

others that, ―while not expressly deferring[,] . . . viewed

Acosta favorably‖). In Acosta, the BIA stated the

requirements for establishing ―persecution on account of

membership in a particular social group‖ as follows:

[W]e interpret the phrase ‗persecution on

account of membership in a particular social

group‘ to mean persecution that is directed

toward an individual who is a member of a

group of persons all of whom share a common,

immutable characteristic. The shared

characteristic might be an innate one such as

sex, color, or kinship ties, or in some

circumstances it might be a shared past

experience such as former military leadership or

1

In re C-A- was originally decided in August 2004,

but it was not published or designated as precedent until June

2006. 23 I. & N. Dec. 951, 951 n.1 (B.I.A. 2006), aff’d sub

nom. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196

(11th Cir. 2006), cert. denied sub nom. Castillo-Arias v.

Gonzales, 127 S. Ct. 977 (2007).

4

land ownership. The particular kind of group

characteristic that will qualify under this

construction remains to be determined on a

case-by-case basis. However, whatever the

common characteristic that defines the group, it

must be one that the members of the group

either cannot change, or should not be required

to change because it is fundamental to their

individual identities or consciences.

19 I. & N. Dec. at 233. ―Particularity‖ and ―social visibility,‖

as the BIA currently defines them, were not independent

elements.2

The BIA introduced ―particularity‖ as a stand-alone

requirement in In re C-A-, finding that ―noncriminal

informants‖ is a group ―too loosely defined to meet the

requirement.‖ 23 I. & N. Dec. 951, 957 (B.I.A. 2006).

―Social visibility,‖ on the other hand, was first mentioned in

In re R-A- as a non-determinative factor—not a mandatory

requirement—in the ―particular social group‖ analysis. 22 I.

& N. Dec. 906, 918–19 (B.I.A. 1999) (using indefinite terms

like ―frequently,‖ ―generally,‖ ―less likely‖ to describe the

requirement and its justifications, and stating that ―[t]he

factors we look to in this case, beyond Acosta‘s

2

The word ―particular‖ in the phrase ―particular social

group‖ was given no independent or operative meaning under

the Acosta formulation. In my view, the BIA‘s recent

decisions elevating ―particularity‖ to its own requirement—

along with the traditional Acosta requirements and ―social

visibility‖—amounts to a change in the agency‘s

interpretation of ―particular social group,‖ as a term of art.

5

‗immutableness‘ test, are not prerequisites‖).3 Like

―particularity,‖ ―social visibility‖ was applied again in In re

C-A-, 23 I. & N. Dec. at 959–961, and both became absolute

requirements in In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69,

74 (B.I.A. 2007) (referring to ―the requirements of a

particular social group‖ and ―the requirement that the shared

characteristic of the group generally be recognizable to others

in the community.‖ (emphasis in original)), aff’d sub nom.

Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007). Since

In re A-M-E-, the BIA has treated these newly-minted

elements as established precedent. See In re A-T-, 24 I & N.

Dec. 296, 303 (B.I.A. 2007); Matter of S-E-G-, 24 I. & N.

Dec. 579, 582 (B.I.A. 2008); Matter of E-A-G-, 24 I. & N.

Dec. 591, 594–95 (B.I.A. 2008).

Although the BIA frames ―particularity‖ and ―social

visibility‖ as merely ―additional considerations‖ within the

Acosta framework, In re R-A-, 22 I. & N. Dec. at 920, or the

products of ―evolving case law,‖ Matter of E-A-G-, 24 I. & N.

Dec. at 593, in practice, they have become stringent

requirements that can be outcome-determinative in cases like

this appeal. Where, as here, an applicant seems to meet the

Acosta requirements but is denied asylum because he fails to

show ―particularity‖ and ―social visibility,‖ it appears that the

3

Although the opinion in In re R-A- was vacated by

Attorney General Janet Reno in 2001, it remains instructive

when considering the history of, and reasoned explanation

for, the ―social visibility‖ requirement. It is also worth noting

that the BIA explicitly limited In re R-A- to its facts, stating

that it ―d[id] not intend any categorical rulings as to

analogous social group claims arising under any other

conceivable set of circumstances.‖ 22 I. & N. Dec. at 914.

6

BIA has changed course from its earlier, less stringent Acosta

approach.

C

The Majority holds that: (1) because ―the requirement

of ‗social visibility‘ is inconsistent with a number of the

BIA‘s prior decisions[,] . . . [it] is therefore not entitled to

deference under Chevron‖ and ―is an unreasonable addition to

the requirements for establishing refugee status . . . [based on]

membership in a particular social group,‖ and (2) because

―‗[p]articularity‘ appears to be little more than a reworked

definition of ‗social visibility[,]‘ . . . it suffers from the same

infirmity as ‗social visibility.‘‖ Maj. Op. at 39, 41, 49. I

disagree. As discussed above, agencies are free to change

their interpretations of statutes, so the fact that there is a

conflict between ―social visibility‖ and prior BIA decisions

does not necessarily mean Chevron deference does not apply.

Nor does it mean that the BIA‘s definition of ―social

visibility‖ is ―unreasonable.‖

In keeping with Fox, I would hold that the BIA may

reinterpret ―particular social group‖ to include whatever new

requirements it sees fit—including ―particularity‖ and ―social

visibility,‖ defined exactly as they are in the line of cases

from In re R-A- through Matter of S-E-G- and Matter of E-A-

G-—as long as it ―display[s] awareness that it is changing

position‖ and ―provide[s] reasoned explanation for its action.‖

129 S. Ct. at 1811 (emphasis in original). In order to exhibit

such an awareness, I believe the Board must make a choice

between these new requirements and its prior decisions

granting ―particular social group‖ status to applicants who

would likely have been unable to show ―particularity‖ or

―social visibility.‖ The Majority is correct that ―the BIA‘s

7

present interpretation [of ‗particular social group‘] would

have excluded the asylum claims that were granted in‖ cases

decided in 1996, 1990, and 1988. Maj. Op. at 46. However,

the problem arises not because of that fact, but rather because

of the BIA‘s failure to recognize and address it.

I note that the BIA has, in my opinion, adequately

explained the utility of adding ―particularity‖ and ―social

visibility‖ to the Acosta test, and unlike the Majority, I am not

convinced that the two requirements are identical. According

to In re R-A-, requiring ―social visibility‖ allows the BIA to

limit asylum to those individuals whose ―potential persecutors

in fact see persons sharing the [applicant‘s ‗social group‘]

characteristic as warranting suppression or the infliction of

harm.‖ 22 I. & N. Dec. at 918. As the BIA noted, ―[i]f a

characteristic is important in a given society, it is more likely

that distinctions will be drawn within that society between

those who share and those who do not share the

characteristic.‖ Id. at 919. In addition, ―the social group

concept would virtually swallow the entire refugee definition

if common characteristics, coupled with a meaningful level of

harm, were all that need be shown.‖ Id. ―Social visibility‖

therefore serves to limit the scope of ―particular social group‖

to more closely match the other protected characteristics of

race, religion, nationality, and political opinion. Id. at 918.

Likewise, ―particularity‖ was explained in In re A-M-E- as

necessary to ―delimit . . . potential members‖ of the purported

―social group‖ and to allow the BIA to deny asylum claims

based on membership in groups, the defining characteristics

of which are ―simply too subjective, inchoate, and variable.‖

24 I. & N. Dec. at 76. If the Board were writing on a blank

8

slate, I would find that it has provided a reasoned explanation

for a permissible interpretation of the law.4

4

I have two lingering questions about the provenance

of ―social visibility‖ that the BIA might address on remand.

Although the BIA can sufficiently explain and justify ―social

visibility‖ without answering these questions, any light the

BIA can shed on these issues might help courts of appeals in

the future and alleviate some of the remaining doubt about the

reasonableness of these new requirements.

The most convincing justification for the ―social

visibility‖ requirement is that ―if the alleged persecutor is not

even aware of the [asylum applicant‘s] group‘s existence, it

becomes harder to understand how the persecutor may have

been motivated by the victim‘s ‗membership‘ in the group to

inflict the harm on the victim.‖ In re R-A-, 22 I. & N. Dec. at

919. This helps explain why ―social visibility‖ would be a

factor in determining whether persecution is ―on account of‖

membership in a group. It remains unclear, however, why

―social visibility‖ should be used to define the group in the

first place.

Another oft-used justification for ―social visibility‖ is

that it is derived from the United Nations High Commissioner

for Refugees‘s (UNHCR) interpretation of the INA. In re C-

A-, 23 I. & N. Dec. at 956, 960 (citing UNCHR, 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, U.N. Doc. HCR/GIP/02/02 (May 7, 2002),

(―UNHCR Guidelines‖)); In re A-M-E-, 24 I. & N. Dec. at 74

9

But the BIA‘s analysis comes undone when it states in

conclusory fashion that all of the groups recognized as

―particular social groups‖ in earlier cases would meet the

―particularity‖ and ―social visibility‖ requirements. See In re

C-A-, 23 I. & N. Dec. at 960 (listing ―young women of a

particular tribe who were opposed to female genital

mutilation,‖ ―persons listed by the government as having the

status of a homosexual,‖ ―former members of the national

police,‖ and ―former military leadership or land ownership‖

as ―social groups [that] involved characteristics that were

highly visible and recognizable by others in the country in

question‖). If this is true—that all of the groups that have

been recognized under the Acosta standard would be

recognized under the new approach—then the otherwise

reasonable definitions and applications of ―particularity‖ and

―social visibility‖ become, at best, muddled, and, at worst,

incoherent.

(same). The UNHCR Guidelines, however, treat ―social

visibility‖ as an alternative to Acosta as a way to establish a

―particular social group‖; it is not a requirement in addition to

Acosta. See In re C-A-, 23 I. & N. Dec. at 956 (―The

UNHCR Guidelines define a ‗particular social group‘ as ‗a

group of persons who share a common characteristic other

than their risk of being persecuted, or who are perceived as a

group by society.‖ (emphasis added) (quoting UNHCR

Guidelines at ¶ 11)). Why, then, has the BIA decided to turn

the Guidelines‘ disjunctive into a conjunctive, essentially

creating an ―Acosta-plus‖ test, rather than adopt the ―Acosta-

or‖ test endorsed by the UNHCR?

10

The BIA has said that ―[t]he essence of the

‗particularity‘ requirement . . . is whether the proposed group

can accurately be described in a manner sufficiently distinct

that the group would be recognized, in the society in question,

as a discrete class of persons.‖ Matter of S-E-G-, 24 I. & N.

Dec. at 584. This allows the BIA to weed out groups that are

―too subjective, inchoate, and variable.‖ In re A-M-E-, 24 I.

& N. Dec. at 76. In rejecting Galdamez‘s proposed group

based on a lack of particularity, though, the BIA described it

as ―‗potentially large and diffuse.‘‖ App. at 11 (quoting

Matter of S-E-G-, 24 I. & N. Dec. at 585). This suggests that

―particularity‖ also embodies some kind of numerical or

geographical limitation. If there are no such limitations, then

it is unclear why it matters how ―large‖ or ―diffuse‖ a

proposed group is. If such limits do exist, then it is unclear

how the BIA can be sure, without hearing any argument on

the matter, that ―young women of a particular tribe who were

opposed to female genital mutilation,‖ ―persons listed by the

government as having the status of a homosexual,‖ ―former

members of the national police,‖ and ―former military

leaders[] or land owners[]‖ are any less numerous or

widespread than ―Honduran youth who have been actively

recruited by gangs but have refused to join because they

oppose the gangs.‖

―Social visibility‖ has been defined as ―the extent to

which members of a society perceive those with the

characteristic in question as members of a social group,‖

Matter of E-A-G-, 24 I. & N. Dec. at 594, and requires that

―the group . . . generally be recognizable by others in the

community,‖ Matter of S-E-G-, 24 I. & N. Dec. at 586. It is

unclear whether this means that the group‘s shared

characteristic must be visible to the naked eye (i.e., pass the

11

―eyeball test‖) or just that the applicant‘s society must

understand individuals with the shared characteristic (visible

or invisible) to be members of a group. In In re C-A-, the

BIA suggested that ―social visibility‖ is an eyeball test when

it rejected a proposed social group because its shared

characteristic is one ―that is generally out of the public view.‖

In re C-A-, 23 I. & N. Dec. at 960. The BIA seemed to

reaffirm this approach in Matter of E-A-G-, when it found that

an applicant‘s proposed group lacked ―social visibility‖

because he ―d[id] not allege that he possesses any

characteristics that would cause others in [his] society to

recognize him‖ as a member. But if ―social visibility‖ is, or

somehow accounts for, an eyeball test, then it is unclear how

―young women of a particular tribe who were opposed to

female genital mutilation,‖ ―persons listed by the government

as having the status of a homosexual,‖ ―former members of

the national police,‖ or ―former military leaders[]‖ would

qualify.

Announcing a new interpretation while at the same

time reaffirming seemingly irreconcilable precedents suggests

that the BIA does not recognize, or is not being forthright

about, the nature of the change its new interpretation

effectuates. It also unfairly forces asylum applicants to shoot

at a moving target.5 It is up to the BIA to bring some stability

5

Although the BIA noted in Acosta that ―[t]he

particular kind of group characteristic that will qualify under

th[e Acosta] construction remains to be determined on a case-

by-case basis,‖ 19 I. & N. Dec. at 233, I assume that the BIA

was referring to case-by-case evaluation of individual

applicants‘ proposed groups and whether they meet the

established legal standard. If the BIA is permitted to engage

12

to its interpretation of the law by committing either to the

Acosta line of cases or to the ―particularity‖ and ―social

visibility‖ requirements, both of which are permissible and

reasonable.

I agree with the Majority that the BIA ―can[] add new

requirements to, or even change, its definition of ‗particular

social group,‘‖ Maj. Op. at 49, but I also note that the BIA‘s

change can be the adoption of ―particularity‖ and ―social

visibility.‖ Were it not for the seemingly irreconcilable

conflict with prior decisions that the BIA has not yet

disavowed, I would see no ―reasonableness‖ problem with the

―particularity‖ and ―social visibility‖ requirements. Thus, the

BIA may, upon further review, decide to jettison Acosta and

its progeny or open them up to reconsideration. Conversely,

the BIA may decide that its precedent should remain intact, in

which case, ―particularity‖ and ―social visibility‖ must be

refined or eliminated.6 It is not for us to make this choice

in case-by-case ad hoc revisions of the entire legal

framework—without acknowledgement or explanation—then

it would be free to arbitrarily pick and choose whatever

statutorily-permissible construction of ―particular social

group‖ it finds agreeable at the moment.

6

I acknowledge that there may also be some way for

the BIA to reconcile its new interpretation and its precedent,

and I do not mean to suggest that such a reconciliation

automatically renders the BIA‘s explanation defective. My

point is simply that more analysis is needed before I can

conclude that the BIA has provided a reasoned explanation of

how its new rules fit—or, it appears, do not fit—with the old

ones.

13

between new requirements and precedent, nor is it our place

to impose our own readings of the statute in an attempt to

reconcile the two. Rather, the BIA should address these

issues on remand, and we should defer to whatever

conclusion it reaches—even if it is to reject precedent and

move ahead with ―particularity‖ and ―social visibility‖ in

their current forms—provided it explains itself in a way that

exhibits expert consideration and logical, reasonable,

permissible interpretations of the INA. See N.L.R.B. v. Curtin

Matheson Scientific, Inc., 494 U.S. 775, 800 (1990)

(Blackmun, J., dissenting) (―Confronted with a court‘s

conclusion that two of its policy pronouncements are

inconsistent, the agency may choose for itself which path to

follow, or it may attempt to explain why no contradiction

actually exists.‖); Gatimi, 578 F.3d 611, 616 (7th Cir. 2009)

(―When an administrative agency‘s decisions are inconsistent,

a court cannot pick one of the inconsistent lines and defer to

that one, unless only one is within the scope of the agency‘s

discretion to interpret the statutes it enforces or to make

policy as Congress‘s delegate. Such picking and choosing

would condone arbitrariness and usurp the agency‘s

responsibilities.‖ (citations omitted)).

II

I also write separately to take issue with the BIA‘s

factfinding. We first remanded this case in 2007 ―so the

agency [could] address the issues that it did not reach . . .

[including] whether the group identified by Galdamez is a

‗particular social group‘ within the meaning of the Act.‖

Valdiviezo-Galdamez v. Att’y Gen. of the U.S., 502 F.3d 285,

291 (3d Cir. 2007) (Valdiviezo-Galdamez I). We did not

authorize the BIA to usurp the IJ‘s role as factfinder.

14

According to 8 C.F.R. § 1003.1(d)(3)(iv), ―[e]xcept for

taking administrative notice of commonly known facts such

as current events or the contents of official documents, the

[BIA] will not engage in factfinding in the course of deciding

appeals.‖ See also Negusie, 129 S. Ct. at 1168 (―If the BIA

decides to adopt a standard that [differs from the existing

standard], it may be prudent and necessary for the

Immigration Judge to conduct additional factfinding based on

the new standard.‖ (emphasis added)); Padmore v. Holder,

609 F.3d 62, 67 (2d Cir. 2010) (―[W]hen the BIA engages in

factfinding in contravention of 8 C.F.R. § 1003.1(d)(3)(iv), it

commits an error of law, which we have jurisdiction to

correct.‖); Hashmi v. Att’y Gen. of the U.S., 531 F.3d 256,

262 (3d Cir. 2008) (―[T]o the extent that the BIA‘s decision

rests in the alternative on its own finding of fact . . ., it erred.‖

(footnote omitted)).

As of June 2005, when the IJ first heard Galdamez‘s

case, the only BIA decision discussing ―social visibility‖ was

In re R-A-, and that opinion had been vacated in early 2001.

In re C-A-, with its enhanced definition of ―particularity‖ and

application of the ―social visibility‖ requirement, was not

published as precedential until June 15, 2006, exactly one

year after the IJ rejected Galdamez‘s petition. Thus,

Galdamez had no reason to present evidence or argue facts

relating to, for instance, whether ―he possesses any

characteristics that would cause others in Honduran society to

recognize him as one who has refused gang recruitment‖ or

whether his proposed group is too ―large and diffuse‖ to be

considered ―particular.‖ Nor did the IJ have any reason to

make factual findings on these points.

On remand from our 2007 decision, the BIA papered

over the lack of factual development by relying on factual

15

findings made in Matter of S-E-G- and Matter of E-A-G-,

both of which also post-dated Galdamez‘s hearing before the

IJ. The only ―evidence‖ to which the BIA cited for its

―particularity‖ and ―social visibility‖ findings were quotations

from those cases, coupled with conclusory statements that the

same facts apply to Galdamez‘s case. For instance, the BIA

quoted Matter of E-A-G- at length for propositions such as:

―[T]here is no showing that membership in a larger body of

persons resistant to gangs is of concern to anyone in

Honduras, including the gangs themselves.‖ Id. (quoting

Matter of E-A-G-, 24 I. & N. Dec. at 594–95). I pass no

judgment on the truth of this statement or its application in

Matter of E-A-G-, but I do not accept its blanket application

to Galdamez‘s case, where the evidentiary record was not

developed with any notion of ―particularity‖ or ―social

visibility‖ requirements. It remains to be seen whether

Galdamez might be able to produce testimony, affidavits, or

some other evidence not presented by the applicants in Matter

of S-E-G- or Matter of E-A-G-.

Under 8 C.F.R. § 1003.1(d)(3)(iv), the IJ is the

factfinder. Here, the BIA implicitly determined that

Galdamez is identically situated to the asylum applicants in

Matter of S-E-G- and Matter of E-A-G-, and that he would be

unable to show ―particularity‖ and ―social visibility‖ because

those two earlier applicants were unable to do so. That may

be true, but that decision is for the IJ in the first instance. If,

on remand, the BIA does change course and adopts new rules

for asylum applicants, it must also remand Galdamez‘s case

to the IJ for additional factfinding. Galdamez‘s appeal before

the BIA should not be limited by an evidentiary record

compiled under an outdated law, or by the facts and

arguments raised by other applicants in cases other than his

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own. He should have the opportunity to present evidence

with an eye towards the law under which his case is being

decided.

III

In sum, I agree with the Majority that a remand is in

order. The BIA now has a choice of either remaining faithful

to its precedents or adopting new requirements that would

likely produce different outcomes for future applicants

claiming to be members of the same ―particular social

groups‖ as were recognized in earlier Board decisions. If it

chooses the latter course, I would also instruct the BIA to

remand the matter to the IJ so Galdamez can have a full and

fair opportunity to be heard under the new legal standards.

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