Rocio Henriquez-Rivas v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCIO BRENDA HENRIQUEZ-RIVAS, No. 09-71571

Petitioner,

Agency No.

v. A098-660-718

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

March 20, 2012—San Francisco, California

Filed February 13, 2013

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,

Susan P. Graber, M. Margaret McKeown, Kim McLane

Wardlaw, Raymond C. Fisher, Richard A. Paez, Marsha S.

Berzon, Jay S. Bybee, Carlos T. Bea, and N. Randy Smith,

Circuit Judges.

Opinion by Judge Bea;

Concurrence by Judge McKeown;

Dissent by Chief Judge Kozinski

2 HENRIQUEZ-RIVAS V . HOLDER

SUMMARY*

Immigration

The en banc court granted a petition for review of the

Board of Immigration Appeals’ denial of asylum to a native

and citizen of El Salvador who claimed a fear of persecution

on account of her membership in a social group as a person

who testified in a criminal trial against members of a gang

who killed her father.

The court held that in denying Henriquez-Rivas asylum

because of a lack of “social visibility,” the Board failed to

follow its own precedent on social group membership as

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

its progeny.

The court clarified the Board’s “social visibility” and

“particularity” criteria for social group membership without

reaching the ultimate question of whether the criteria

themselves were valid. The court explained that the “social

visibility” requirement does not require “on-sight” social

visibility, rather the key is whether the social groups are

“understood by others to constitute social groups.” The court

also explained that the particularity requirement considers

whether a 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.”

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HENRIQUEZ-RIVAS V . HOLDER 3

The court noted that the Board has not clearly specified

whose perspectives are most indicative of society’s

perception of a particular social group, but the court left it to

the Board to address this issue in the first instance. The court

observed that the perception of the persecutors may matter

the most, and that evidence of perceptions in society as a

whole is not the exclusive means of demonstrating social

visibility.

The court held that to the extent that Santos-Lemus v.

Mukasey, 542 F.3d 738 (9th Cir. 2008), Ramos-Lopez v.

Holder, 563 F.3d 855 (9th Cir. 2009), and related cases

mischaracterized the “social visibility” requirement by

requiring “on-sight” visibility, they are no longer good law.

The court also held that to the extent that Soriano v. Holder,

569 F.3d 1162, 1166 (9th Cir. 2009) and Velasco-Cervantes

v. Holder, 593 F.3d 975, 978 (9th Cir. 2010) make

considerations of diversity of lifestyle and origin the sine qua

non of “particularity” analysis, they are overruled.

Judge McKeown concurred in the result and the opinion,

except to the extent the majority counsels that the perception

of the persecutor “may matter the most” in analyzing social

visibility or claims that the persecutor’s view is “potentially

dispositive” of the question.

Dissenting, Chief Judge Kozinski, joined by Judge Bybee,

noted that the Supreme Court has admonished this court that

it is the Board who must decide whether a petitioner is a

member of a particular social group for purposes of asylum.

Judge Kozinski wrote that the majority engaged in a good

deal of first viewing, and in doing so deepened a circuit

conflict on an issue where national uniformity is vital, and

sowed uncertainty into our circuit law where previously there

4 HENRIQUEZ-RIVAS V . HOLDER

was clarity. Chief Judge Kozinski would vacate the order

taking the case en banc as improvidently granted and reinstate

the three-judge panel’s disposition.

COUNSEL

Saad Ahmad (argued), Fremont, California, for Petitioner.

Walter Manning Evans (argued), Jeffrey Lawrence Menkin,

United States Department of Justice, Civil Division/Office of

Immigration Litigation, Washington, D.C., for Respondent.

Kannon K. Shanmugam (argued), Williams & Connolly LLP,

Washington, D.C., for amicus curiae Center for Gender &

Refugee Studies.

OPINION

BEA, Circuit Judge:

Rocio Brenda Henriquez-Rivas petitions for review of a

decision of the Board of Immigration Appeals (“BIA”)

sustaining the government’s appeal of an Immigration

Judge’s (“IJ”) grant of asylum, and denying her applications

for withholding of removal and protection under the

Convention Against Torture. Henriquez-Rivas claims she is

entitled to asylum because, as a person who testified in a

criminal trial against members of a gang who killed her father

in El Salvador, she is a member of a particular social group,

on account of which she faces a well-founded fear of

persecution if she were to return to El Salvador. For the

reasons discussed below, we find that the BIA misapplied its

HENRIQUEZ-RIVAS V . HOLDER 5

own precedent in holding that witnesses who testify against

gang members may not constitute a particular social group

due to a lack of social visibility. Accordingly, we grant

Henriquez-Rivas’ petition for review and remand to the BIA

for further proceedings.

I. Statutory Framework

Under the Immigration and Naturalization Act (“INA”),

the Attorney General may grant asylum to a “refugee.”

8 U.S.C. § 1158(b)(1)(A). To qualify as a refugee, an alien

must prove that he is unwilling or unable to return to his

country of origin “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). “An applicant alleging past

persecution has the burden of establishing that (1) his

treatment rises to the level of persecution; (2) the persecution

was on account of one or more protected grounds; and (3) the

persecution was committed by the government, or by forces

that the government was unable or unwilling to control.”

Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.

2010).

“If past persecution is established, a rebuttable

presumption of a well-founded fear arises, 8 C.F.R.

§ 208.13(b)(1), and the burden shifts to the government to

demonstrate that there has been a fundamental change in

circumstances such that the applicant no longer has a well-

founded fear.” Tawadrus v. Ashcroft, 364 F.3d 1099, 1103

(9th Cir. 2004) (internal quotation marks omitted).

The term “particular social group” is ambiguous.

Donchev v. Mukasey, 553 F.3d 1206, 1215 (9th Cir. 2009).

6 HENRIQUEZ-RIVAS V . HOLDER

The BIA first interpreted the term “particular social group” in

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

on other grounds by Matter of Mogharrabi, 19 I. & N. Dec.

439 (BIA 1987). In Acosta, the alien argued that he was a

member of a particular social group comprising members of

a taxi driver cooperative in El Salvador. 19 I. & N. Dec. at

232. The BIA defined 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 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.

Id. at 233. Applying that definition in Acosta, the BIA

rejected the alien’s arguments because the identifying

characteristic of the group (working as a taxi driver) was not

immutable. Taxi drivers could change jobs at any time. Id.

at 234.

HENRIQUEZ-RIVAS V . HOLDER 7

In the years following Acosta, the BIA found that each of

the following were members of a particular social group:

former members of the Salvadoran national police;1

homosexuals in Cuba who were forced to register with the

government;2 young female members of a tribe in Togo who

had not undergone female genital mutilation and were

opposed to the practice;3 and Filipinos of mixed Filipino-

Chinese ancestry.4

We adopted the Acosta definition of “particular social

group” in Hernandez-Montiel v. INS, 225 F.3d 1084, 1092–93

(9th Cir. 2000), overruled on other grounds by Thomas v.

Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc).5 In

Hernandez-Montiel, we held that a particular social group “is

one united by a voluntary association, including a former

association, or by an innate characteristic that is so

fundamental to the identities or consciences of its members

that members either cannot or should not be required to

1

Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (noting that,

unlike the taxi drivers in Acosta who would have been persecuted only if

they continued being taxi drivers who would not cooperate with the

persecutors, being a former member of the police was a part of

respondent’s past, and was thus an “immutable characteristic, as it [was]

one beyond the capacity of the respondent to change”).

2

Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990).

3

In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996).

4

In re V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997) (en banc).

5

Prior to Hernandez-Montiel, we used different criteria to determine

particular social groups. In Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576

(9th Cir. 1986), for instance, we held that particular social groups were

defined by voluntary associational relationships.

8 HENRIQUEZ-RIVAS V . HOLDER

change it.” Id. at 1093 (emphasis in original). Applying that

framework to the facts of Hernandez-Montiel, we held that

male homosexuals with female sexual identities qualified as

a particular social group because they shared an immutable

characteristic “so fundamental to one’s identity that a person

should not be required to abandon [it].” Id. at 1093–94.

In 2006, the BIA refined the Acosta standard by stating

that an asylum applicant must also demonstrate that his

proposed particular social group has “social visibility” and

“particularity.” Matter of C-A-, 23 I. & N. Dec. 951, 957,

960 (BIA 2006). In C-A-, the BIA held that a group of

“noncriminal drug informants working against the

[Colombian] Cali drug cartel” was not a particular social

group because the group did not have “social visibility” or

“particularity.” Id. at 961. The BIA stated that, in so

holding, it was not departing from its prior precedent: “[W]e

continue to adhere to the Acosta formulation.” Id. at 956.

In C-A-, the BIA discussed some groups that are

“understood by others to constitute social groups,” id. at 959,

and other groups that are “highly visible and recognizable by

others in the country in question,” id. at 960. The BIA

rejected the proposed social group in C-A-, noting that “the

very nature of the conduct at issue is such that it is generally

out of the public view.” Id. at 960. The BIA said that

“[r]ecognizability or visibility is limited to those informants

who are discovered because they appear as witnesses or

otherwise come to the attention of cartel members.” Id.

BIA cases following C-A- further elaborated the meaning

of the additional criteria of “social visibility” and

“particularity.” In Matter of S-E-G-, the petitioners were

three siblings from El Salvador who were threatened by Mara

HENRIQUEZ-RIVAS V . HOLDER 9

Salvatrucha (“MS-13”) gang members after refusing gang

recruitment attempts. 24 I. & N. Dec. 579, 579–80 (BIA

2008). The BIA affirmed the IJ’s denial of asylum, finding

that the proposed social group of “Salvadoran youth who

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

have rejected or resisted membership in the gang based on

their own personal, moral, and religious opposition to the

gang’s values and activities” did not have “particularity” or

“social visibility.” Id. at 581, 583. The group lacked

“particularity” because the category was too “amorphous”

and the group membership was not easily definable. Id. at

584–85. The group was also not “socially visible”: “There is

little in the 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 . . . .” Id.

at 587; see also Matter of E-A-G-, 24 I. & N. Dec. 591, 594

(BIA 2008) (reversing IJ’s grant of asylum after defining

“social visibility” in terms of “social perception”:

“respondent 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”).

Following C-A- and subsequent BIA cases, we have

applied the “social visibility” requirement as one of general

social “perception” rather than of on-sight visibility. In

Santos-Lemus v. Mukasey, we concluded that the proposed

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

was not socially visible; there was no evidence that the

petitioner would be “perceived . . . to be a member of any

kind of anti-gang group.” 542 F.3d 738, 745–46 (9th Cir.

2008) (emphasis added). We similarly held in Ramos-Lopez

v. Holder that Honduran men who resisted recruitment into

the MS-13 were not “socially visible” because there was no

10 HENRIQUEZ-RIVAS V . HOLDER

evidence that they were “generally visible to society.”

563 F.3d 855, 862 (9th Cir. 2009).

Most circuits have accepted the BIA’s “social visibility”

and “particularity” criteria. See, e.g., Gaitan v. Holder,

671 F.3d 678, 681–82 (8th Cir. 2012); Rivera-Barrientos v.

Holder, 666 F.3d 641, 649–52 (10th Cir. 2012); Scatambuli

v. Holder, 558 F.3d 53, 59–60 (1st Cir. 2009). But the Third

and Seventh Circuits have rejected “social visibility” as an

unreasonable interpretation of the ambiguous statutory term.

See Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 606–07

(3d Cir. 2011); Gatimi v. Holder, 578 F.3d 611, 615–16 (7th

Cir. 2009). The Third Circuit also rejected “particularity” as

merely a “different articulation[] of the [‘social visibility’]

concept.” Valdiviezo-Galdamez, 663 F.3d at 608.

II. Factual Background and Proceedings Below

With this framework in mind, we turn now to the facts of

the case. Rocio Brenda Henriquez-Rivas is a native and

citizen of El Salvador. In 1998, when Henriquez-Rivas was

twelve years old, her father was murdered by four members

of the M-18 street gang. Two of the men were known as

“Chimbera” and “Popo.” Henriquez-Rivas saw the men enter

her house and assault her father. They told her father to ask

for forgiveness, which he did. Thinking the men were going

to attack her, Henriquez-Rivas fled. As she was running

away from the house, Henriquez-Rivas heard four gun shots.

She did not see who fired the gun, but her sister Mirabel told

her that Chimbera shot her father. When the police arrived,

they told Henriquez-Rivas that her father was dead.

Henriquez-Rivas identified two of the suspects in a lineup

behind protective glass. She also testified against them in

HENRIQUEZ-RIVAS V . HOLDER 11

court. Both Chimbera and Popo were present in court while

Henriquez-Rivas testified, and both were convicted.

Chimbera was sentenced to 7 years in prison because he was

a minor and Popo was sentenced to 25 to 30 years in prison.

After her father’s death, Henriquez-Rivas lived with her

half-sister, Olga. In 2000, when Henriquez-Rivas returned to

her father’s house to get some paperwork, a man by the name

of Julio told her not to return to the house. Julio explained

that some men had been at her house and mentioned to Julio

that they killed her father at the direction of someone else.

At her asylum hearing, Henriquez-Rivas testified that her

family members saw Chimbera, who had been released from

prison, about two times between 1999 and 2004. In 1999,

one of Henriquez-Rivas’ sisters saw Chimbera a block from

her house and called the police. The police arrived and

arrested Chimbera. Another time, Mirabel, Henriquez-Rivas’

younger sister who also witnessed the murder, saw Chimbera

on the bus working as a fare collector. Chimbera saw

Mirabel and stared at her. For this reason, Mirabel later came

to the United States. Henriquez-Rivas did not personally

encounter Chimbera.

In 2005, a man came to Henriquez-Rivas’ school and

asked if anyone knew “Rocio Henriquez.” She thought it was

strange that the man would ask for her, so she denied

knowing a Rocio Henriquez. Henriquez-Rivas then decided

to leave El Salvador. She believed that if she remained in El

Salvador the gang members would harm her for testifying

against them and because they were required to pay

restitution to her family. After Henriquez-Rivas left for the

United States, she learned that Chimbera had come to her

town asking for her.

12 HENRIQUEZ-RIVAS V . HOLDER

Henriquez-Rivas entered the United States, without

inspection, on January 16, 2006. The Department of

Homeland Security initiated removal proceedings against her

on the ground that she was “an alien present in the United

States without being admitted or paroled.” 8 U.S.C.

§ 1182(a)(6)(A)(I). She conceded removability, and filed an

application for asylum, withholding of removal, and

protection under the Convention Against Torture.

After a hearing, the IJ found Henriquez-Rivas’ testimony

credible. The IJ concluded that Henriquez-Rivas did not

establish she was persecuted on account of political opinion,

but concluded that Henriquez-Rivas did establish she was a

member of the particular social group of “people testifying

against or otherwise oppos[ing] gang members.” The IJ

found she had suffered past persecution in El Salvador

because her father was murdered, the gang members tried to

kill her when they killed her father, and she was threatened by

gang members after testifying against them in court. The IJ

also concluded that Henriquez-Rivas had established a well-

founded fear of future persecution, as there was “a reasonable

possibility of suffering such persecution [if] she were to

return to El Salvador.” The IJ further found that the

Salvadoran government is unable to control gang violence,

that the government did not prove changed country

conditions, and that internal relocation would not be

reasonable. The IJ granted asylum on that basis.

The BIA reversed the IJ’s decision. The BIA reversed the

determination that the group of “people testifying against or

otherwise [opposing] gang members” constitutes a particular

social group. The BIA concluded that the proposed group

lacked the requisite “social visibility” to qualify as a

particular social group. Henriquez-Rivas petitioned for

HENRIQUEZ-RIVAS V . HOLDER 13

review. A three-judge panel of our court initially denied

Henriquez-Rivas’ petition for review. We granted rehearing

en banc.

III. Standards of Review

We review questions of law de novo. Santos-Lemus,

542 F.3d at 742. We review the BIA’s factual findings for

substantial evidence. Id. The BIA’s construction of

ambiguous statutory terms in the INA through case-by-case

adjudication is entitled to deference under Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 844 (1984). INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999). If the BIA’s construction is reasonable, we must

accept that construction under Chevron, even if we believe

the agency’s reading is not the best statutory interpretation.

See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 980 (2005). The standard of review is

not necessarily “more searching” if the BIA’s decision

represents a change from prior agency policy. FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 514 (2009).

IV. Discussion

A.

Much of the inter-circuit disagreement over the “social

visibility” requirement relates to an ambiguity in the BIA’s

use of the term. Does it mean that the proposed particular

social group is “understood by others to constitute [a] social

group[]”? C-A-, 23 I. & N. Dec. at 959 (emphasis added).

Or, does it mean a bystander can literally see the difference

that makes that person a member of the group (so-called “on-

sight” or ocular visibility)? Cf. In re A-M-E- & J-G-U-, 24 I.

14 HENRIQUEZ-RIVAS V . HOLDER

& N. Dec. 69, 74 (BIA 2007) (citing C-A-, 23 I. & N. Dec. at

956) (in denying particular social group status to the proposed

group “affluent Guatemalans,” the BIA stated that “the shared

characteristic of the group should generally be recognizable

by others in the community”) (emphasis added). As Judge

Posner stated when writing for the Seventh Circuit in Gatimi:

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.”

578 F.3d at 615. The Third Circuit similarly criticized any

notion that “social visibility” was limited to persons who

could be identified as members of a group just by their

appearance:

Here, the government contends that

“social visibility” does not mean on-sight

visibility. 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

HENRIQUEZ-RIVAS V . HOLDER 15

“even-whether [the BIA] understands the

difference.”

Valdiviezo-Galdamez, 663 F.3d at 606–07 (alteration in

original) (footnote omitted).

We agree that a requirement of “on-sight” visibility would

be inconsistent with previous BIA decisions and likely

impermissible under the statute. However, we do not read

C-A- and subsequent cases to require “on-sight” visibility. To

be sure, it is difficult to articulate precisely what the BIA

meant by “social visibility” in C-A-. The BIA’s elaboration

in case-by-case adjudication subsequent to C-A- is somewhat

inconsistent, as discussed below. But an “on-sight” visibility

requirement would not make sense when coupled with the

discussion in C-A- of previous BIA decisions. See C-A-, 23

I. & N. Dec. at 959–60.6 Referencing Acosta’s examples of

“former military leadership or land ownership” during its

discussion of “social visibility,” the BIA called them “easily

recognizable traits.” Id. Those traits would not be “easily

recognizable” if the “social visibility” criterion required “on-

sight” visibility, since former military officers do not always

wear epaulets, nor do landowners wear T-shirts mapping their

holdings. Instead, the key in these older BIA cases, as well

as in C-A-, is whether the social groups are “understood by

others to constitute social groups.” Id. at 959 (emphasis

added).

6

Registered homosexuals in Cuba would not necessarily be recognized

as such walking down the street. See Toboso-Alfonso, 20 I. & N. Dec. at

822. Former members of the Salvadoran national police would similarly

not be recognizable “on-sight.” See Fuentes, 19 I. & N. Dec. at 662.

16 HENRIQUEZ-RIVAS V . HOLDER

Further, the statement in C-A- that “the very nature of the

conduct at issue is such that it is generally out of the public

view” should be understood in the context of societal

understanding, not “on-sight” visibility. Id. at 960. It is true

that informants against criminal cartels generally take pains

to stay out of the public view. Those informants who are

discovered, however, are socially visible under C-A-:

“Recognizability or visibility is limited to those informants

who are discovered because they appear as witnesses or

otherwise come to the attention of cartel members.” Id. Thus,

anti-cartel informants, who might not be recognizable on-

sight as members of that group, would be socially

visible—particularly to revenge-seeking cartel members—if

their identity were discovered because they testified in court,

as Henriquez-Rivas did here.7

Subsequent BIA cases do not interpret C-A- as imposing

an “on-sight” visibility requirement. See S-E-G-, 24 I. & N.

Dec. at 587 (asking whether the proposed social group of

Salvadoran youth who had resisted recruitment efforts from

the MS-13 gang would be “perceived as a group” by society);

E-A-G-, 24 I. & N. Dec. at 594 (considering whether society

would recognize respondent, a Honduran youth, as having

resisted gang recruitment after defining “social visibility” as

7

W e emphasize that to render C-A-’s statements consistent with a proper

understanding of “social visibility,” the requirement that an applicant’s

conduct has “come to the attention of” his persecutors must not be

construed to exclude all conduct that occurs “out of the public view.” If

an applicant can demonstrate as a factual matter that he reasonably fears

persecution because some covert action that he has taken may “come to

the attention of” his persecutors, then it is irrelevant whether the action

would as a general matter not be discovered because of its covert nature.

HENRIQUEZ-RIVAS V . HOLDER 17

“the extent to which members of a society perceive those with

the characteristic in question as members of a social group”).8

Our own case law following C-A- has similarly declined

to impose an “on-sight” visibility requirement. Instead, we

have required that the shared characteristic “‘generally be

recognizable’” by other members of the community, or

evidence that members of the proposed group would be

“‘perceived as a group’ by society.” Santos-Lemus, 542 F.3d

at 746 (quoting S-E-G-, 24 I. & N. Dec. at 586–87).

Absent a requirement of on-sight visibility, “social

visibility” as detailed in C-A- is consistent with BIA

precedent prior to C-A-. It defines “social visibility” in terms

of perception by a society, not ocular recognition. So

construed, C-A- was merely a refinement of Acosta. So long

as the “social visibility” and “particularity” criteria are

applied in a way that did not directly conflict with prior

agency precedent, we would be hard-pressed to reject the new

criteria as unreasonable under Chevron. See Marmolejo-

Campos v. Holder, 558 F.3d 903, 914 (9th Cir. 2009) (en

banc).

Concluding that social visibility refers to “perception”

rather than “on-sight” visibility does not fully clarify the

requirement. Neither we nor the BIA has clearly specified

whose perspectives are most indicative of society’s

perception of a particular social group: the Petitioner herself?

8

W e also note that the government has taken the litigation position that

“social visibility” does not require “that members of a particular social

group must literally be visible to the naked eye.” Br. for Resp’t in Opp’n

12–13, Contreras-Martinez v. Holder, 130 S. Ct. 3274 (2010) (No. 09-

830), 2010 W L 1513110.

18 HENRIQUEZ-RIVAS V . HOLDER

Her social circle? Her native country as a whole? The

United States? The global community?9 Different audiences

will be more or less likely to consider a collection of

individuals as a social group depending on their own history,

course of interactions with the group, and the overall context.

Although we leave it to the BIA to decide this issue in the

first instance, we think that some observations may be in

order as it considers the issue anew.

Looking to the text of the statute, in the context of

persecution, we believe that the perception of the persecutors

may matter the most. Under the INA, a petitioner’s belief

that she has been persecuted does not alone prove

persecution; rather, she must show persecution or a well-

founded fear of future persecution on account of a protected

ground. 8 U.S.C. § 1101(a)(42)(A). The petitioner is

persecuted precisely because the persecutor recognizes the

object of his persecution. Further, the petitioner’s awareness

of her own group status is not a baseline requirement—for

example, an infant may not be aware of race, sex, or religion.

Society in general may also not be aware of a particular

religious sect in a remote region. However, a group may be

persecuted because of the persecutor’s perceptions of the

9

In Santus-Lemus, we quoted a BIA decision for the proposition that the

particularity requirement looks to “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.” 542 F.3d at 745 (quoting S-E-G-, 24 I. & N. Dec. at 584)

(emphasis added) (internal quotation marks omitted). The BIA has also

stated that “‘social visibility’ must be considered in the context of the

country of concern and the persecution feared,” but it has not specified

who in that country or in that society must perceive the petitioner as a

member of a particular social group. In re A-M-E- & J-G-U-, 24 I. & N.

at 74 (emphasis added).

HENRIQUEZ-RIVAS V . HOLDER 19

existence of those groups. Cf. Sanchez-Trujillo, 801 F.2d at

1576 (holding that the proposed group, “young, urban,

working class males of military age who had never served in

the military,” did not constitute a particular social group, we

suggested that “a persecutor’s perception of a segment of a

society as a ‘social group’” could be relevant to the particular

social group analysis).10 We do not mean to imply that an

alien should be required in every case to prove that his

persecutors perceived his social group to be socially visible.

When there is evidence that a social group is visible to

society, there is no need to prove that the petitioner’s

persecutors perceived that group as visible. See Matter of

R-A-, 22 I. & N. Dec. 906, 918 (BIA 1999) (en banc) (noting

that a “showing of how the characteristic is understood in the

alien’s society . . . may [help us to] understand that the

potential persecutors in fact see persons sharing the

characteristic as warranting suppression or the infliction of

harm.”).11 We mean only to suggest that evidence of

10

See also C-A-, 23 I. & N. Dec. at 960 (denying particular social group

status to informants working against the Cali drug cartel, the BIA stated

that “[r]ecognizability or visibility is limited to those informants who are

discovered because they appear as witnesses or otherwise come to the

attention of cartel members.” (emphasis added)).

11

In R-A-, the BIA held that the petitioner had not established a nexus

between the persecution she suffered and membership in the particular

social group: “Guatemalan women who have been involved intimately

with Guatemalan male companions, who believe that women are to live

under male domination.” 22 I. & N. Dec. at 925, 927. R-A- was later

vacated by the Attorney General in anticipation of new rules regarding

domestic violence and asylum law. In re R-A-, 22 I. & N. Dec. 906 (A.G.

Jan. 19, 2001). However, no final rule was issued, and the case was

remanded to the BIA. Nevertheless, litigants and other courts have relied

heavily upon its analysis. See, e.g., Valdiviezo-Galdamez, 663 F.3d at

604.

20 HENRIQUEZ-RIVAS V . HOLDER

perceptions in society as a whole is not the exclusive means

of demonstrating social visibility. When a particular social

group is not visible to society in general (as with a

characteristic that is geographically limited, or that

individuals may make efforts to hide), social visibility may be

demonstrated by looking to the perceptions of persecutors.

Such perceptions may be highly relevant to, or even

potentially dispositive of, the question of social visibility. Cf.

Sanchez-Trujullo, 801 F.2d at 810 & n.7.

By highlighting the perception of the persecutor, other

demographic divisions would become less relevant. One

would ask whether, as far as the persecutor is concerned,

there is a particular characteristic (such as male homosexuals

with female sexual identities, see Hernandez-Montiel v. INS,

225 F.3d 1084, 1093 (9th Cir. 2000)), that defines a finite

collection of individuals as a group. If the answer is yes, the

fact that those individuals may have a variety of other

characteristics, and belong to various other groups, would not

be a bar to potential relief.

We next consider the “particularity” requirement.

Admittedly, both BIA and our own precedent have blended

the “social visibility” and “particularity” analysis: “social

visibility” has been determined based on perception, as

discussed above, and “particularity” too has been based on

society’s perception whether a group has delimitable

boundaries. See, e.g., Ramos-Lopez v. Holder, 563 F.3d 855,

861 (9th Cir. 2009) (affirming the BIA’s determination that

petitioner, asserting membership in a particular social group

comprised of Honduran males who had resisted MS-13

recruitment efforts, failed the particularity requirement

because there was no indication that there was “any

perception that the males in question were members of a

HENRIQUEZ-RIVAS V . HOLDER 21

class”) (internal quotation marks omitted); S-E-G-, 24 I. & N.

Dec. at 584 (“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.” (emphasis added)). Consideration of the “plethora

of different lifestyles, varying interests, diverse cultures, and

contrary political leanings” among the members of the group

also seems to pertain to “social visibility” rather than

“particularity”: the point is that the diverse backgrounds of

members of the purported group may prevent them from

being perceived as belonging to the same group. Soriano v.

Holder, 569 F.3d 1162, 1166 (9th Cir. 2009) (quoting

Sanchez-Trujillo, 801 F.2d at 1577) (internal quotation marks

omitted).12 It is therefore unsurprising that, given the way the

BIA has applied the term, the Third Circuit has concluded

that “‘[p]articularity’ appears to be little more than a

reworked definition of ‘social visibility.’” Valdiviezo-

Galdamez, 663 F.3d at 608.

We will not go quite so far. The “particularity”

requirement is separate, and it is relevant in considering

whether a group’s boundaries are so amorphous that, in

practice, the persecutor does not consider it a group. The

ultimate question is whether a 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.” S-E-G-, 24 I. & N. Dec. at 584. If a

persecutor does not actually rely on specific boundaries or

definitions to identify the group, it may be more difficult to

12

In Soriano, we rejected petitioner’s proposed particular social group

of government informants against a Filipino gang in the United States.

569 F.3d at 1166.

22 HENRIQUEZ-RIVAS V . HOLDER

believe that a collection of individuals is in fact perceived as

a group. Ultimately, the “particularity” consideration is

merely one factor as to whether a collection of individuals is

considered to be a particular social group in practice.

We clarify the “social visibility” and “particularity”

criteria without reaching the ultimate question of whether the

criteria themselves are valid. The BIA could find that

Henriquez-Rivas’ proposed social group is cognizable under

either the Acosta immutability standard or the newer standard

that considers “social visibility” and “particularity.” Thus,

we need not decide, in this case, at this time, whether we

should align ourselves with the Third and Seventh Circuits

and invalidate these requirements.

B.

We now turn to reviewing the BIA’s application of its

particular social group precedent to the facts of this case. The

BIA concluded that the proposed social group of people who

testified against gang members “lacks the requisite ‘social

visibility’ to be considered a particular social group within

the meaning of the Act.” In so doing, the BIA did not fully

explain its position but cited many of the cases discussed

above, including Santos-Lemus v. Mukasey, Matter of

E-A-G-, Matter of S-E-G-, and Matter of C-A-. From E-A-G-,

the BIA derived the principle that the evidence must

“establish that members of society, or even gang members

themselves, would perceive those opposed to gang

membership as members of a social group.”

In denying Henriquez-Rivas asylum because of a lack of

“social visibility,” the BIA failed to follow its own precedent

HENRIQUEZ-RIVAS V . HOLDER 23

as stated in C-A- and its progeny.13 This case clearly falls

within the language in C-A- holding that those who testify

against cartel members are socially visible: “[V]isibility is

limited to those informants who are discovered because they

appear as witnesses or otherwise come to the attention of

cartel members.” 23 I. & N. Dec. at 960 (emphasis added).

Here, Henriquez-Rivas testified in open court against the

gang members who killed her father.14 What is more,

Chimbera and Popo were present in the courtroom while

Henriquez-Rivas testified. Further, Henriquez-Rivas testified

that Chimbera or other supposed MS members came to her

13

W hile we are aware that the BIA may refine or change its definition

of social visibility, it must provide a reasoned explanation for doing so.

See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). To

date, the BIA has not suggested or held in a published case that its

language in C-A- would not be sufficient to establish social visibility for

witnesses who are socially visible because they have testified in open

court. Rather, its subsequent decisions have focused on people opposed

or resistant to gangs and the lack of proven social visibility. See Matter

of S-E-G-, 24 I. & N. Dec. at 582 (rejecting Salvadoran youths who

resisted gang recruitment, or family members of such Salvadoran youth

as a social group, the BIA noted that it was guided by previous decisions

holding “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”); Matter of E-A-G-, 24 I. & N. Dec.

at 594 (rejecting young Honduran persons who are perceived to be

affiliated with gangs and persons resistant to gang membership as

members of a particular social group because of the purported group’s

failure to establish social visibility that would allow others to identify its

members as part of such a group).

14

W e by no means intend to suggest that the public nature of Henriquez-

Rivas’ testimony is essential to her eligibility for asylum. Because

Henriquez-Rivas did testify in open court, we need not address whether

she would be eligible for asylum if the conduct for which she fears

persecution had been less public— for instance, if she had testified behind

a protective screen so as to conceal her identity.

24 HENRIQUEZ-RIVAS V . HOLDER

home looking for Henriquez-Rivas and her sister. Thus,

under the terms of C-A-, the proposed social group of those

who testified in court against gang members “involve[s]

characteristics that [are] highly visible and recognizable by

others in the country in question.” Id. Because of C-A-’s

clear language about the “social visibility” of those

informants who testify in court, there is no substantial

evidence to support the BIA’s conclusion that Henriquez-

Rivas’ proposed particular social group lacks “social

visibility.”

Because the BIA erroneously assumed that the proposed

social group was not cognizable under its precedent, it failed

to consider significant evidence that Salvadoran society

recognizes the unique vulnerability of people who testify

against gang members in criminal proceedings, because gang

members are likely to target these individuals as a group. See

id. at 959 (considering whether the proposed group is

“generally easily recognizable and understood by others to

constitute [a] social group[]”). Notably, as Henriquez-Rivas

cited in her briefing before the BIA as well as in her opening

brief on petition for review, the Salvadoran legislature

enacted a special witness protection law in 2006 to protect

people who testify against violent criminal elements, such as

MS, in Salvadoran court. Decreto No. 1029/2006, Ley

Especial para la Protección de Víctimas y Testigos [“Special

Law for Victim and Witness Protection”], (May 11, 2006).15

15

The law states, in pertinent part: “Considering: . . . That the current

Salvadoran reality evidences the necessity that victims, witnesses and

others who are involved in . . . judicial proceedings, as well as their

families . . . should be protected to avoid violations of their rights . . . .”

Decreto No. 1029/2006, Ley Especial para la Proteccion de Victimas y

Testigos [“Special Law for Victim and W itness Protection”], (May 11,

200 6 ), at p. 60 3 , a va ila b le a t http://www.ute .gob.sv/c pp

HENRIQUEZ-RIVAS V . HOLDER 25

See U.S. Dep’t of State, Country Report on Human Rights

Practices: El Salvador at 6 (2006); see also MCA, Inc. v.

United States, 685 F.2d 1099, 1103 n.12 (9th Cir. 1982)

(noting that this court may take judicial notice of foreign laws

under Fed. R. Civ. P. 44.1 if the parties give written notice of

their intent to raise an issue of foreign law). It is difficult to

imagine better evidence that a society recognizes a particular

class of individuals as uniquely vulnerable, because of their

group perception by gang members, than that a special

witness protection law has been tailored to its characteristics.

Our prior cases denying asylum to those opposed to gangs

are distinguishable. Several of our previous cases considered

proposed social groups of those generally opposed to gangs

or resistant to gang recruitment. See Santos-Lemus, 542 F.3d

at 746; Ramos-Lopez, 563 F.3d at 861. Those cases did not

involve the very specific situation of testifying against gang

members in court, and considered only generalized opposition

to gangs and gang recruitment. The “opposition to gangs”

group might not be “socially visible” if the society in

question does not perceive those with such views as

constituting a distinct group of persons. But for those who

have publicly testified against gang members, their “social

visibility” is apparent. To the extent that Santos-Lemus,

Ramos-Lopez, and related cases mischaracterized the “social

visibility” requirement by requiring “on-sight” visibility, they

are no longer good law.

/index.php?option=com_content&task=view&id=193&Itemid=132. The

decree provides for ordinary and extraordinary protection measures,

Chapter III, Art. 10 and 11, which include changes of identity and

residence, even to foreign countries. Id. at pp. 607–08.

26 HENRIQUEZ-RIVAS V . HOLDER

It is not clear whether the BIA in this case held that

Henriquez-Rivas’ proposed particular social group lacked

“particularity.” The BIA merely stated, “defining the group

as persons opposing gang members is too amorphous.” This

was an incorrect statement of Henriquez-Rivas’ proposed

social group, which referred to those who had testified

against M-18 gang members in open court, and thus, “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.” S-E-G-, 24 I. & N. Dec. at 584.

Membership in Henriquez-Rivas’ proposed group can be

easily verified—and thus delimited—through court records

documenting group members’ testimony. The IJ found

Henriquez-Rivas’ testimony credible, and the government

does not dispute that Henriquez-Rivas actually testified in

court in El Salvador against members of the MS gang.

Our previous cases rejecting as a “particular social group”

those acting as government informants are arguably in

conflict with our holding today insofar as they require an

additional element of shared birth, racial or ethnic origin, or

some other innate aspect of homogeneity for the group to

qualify as a “particular social group.” In Soriano v. Holder,

petitioner contended that he had a well-founded fear of future

persecution in the Philippines because he had acted as a

police informant against a Filipino criminal gang while living

in Los Angeles. 569 F.3d at 1163. We denied his petition for

review, thus affirming the BIA’s denial of asylum for lack of

“particularity”:

A person who identifies as a “government

informant” can be anyone of any demographic

description who passes information to

government authorities for any purpose.

HENRIQUEZ-RIVAS V . HOLDER 27

There is no innate characteristic which is so

fundamental to the identities or consciences of

government informants that identifies them as

a particular social group. The purported

group, therefore, naturally manifests a

plethora of different lifestyles, varying

interests, diverse cultures, and contrary

political leanings.

Id. at 1166 (internal citation, quotation marks, and brackets

omitted); see also Velasco-Cervantes v. Holder, 593 F.3d

975, 978 (9th Cir. 2010) (rejecting a proposed group of

former material witnesses for the United States government

for lack of “particularity” because “any person of any origin

can be involuntarily placed in that role in any type of legal

proceeding” (emphasis added)).

These cases reflect the confusion between the

“particularity” and “social visibility” requirements. The

diversity of “lifestyles” and “origin” to which these cases

refer did not concern the “particularity” requirement per se,

nor are they relevant to our analysis, as we explain above.

Accordingly, to the extent that Soriano and Velasco-

Cervantes make considerations of diversity of lifestyle and

origin the sine qua non of “particularity” analysis, they are

overruled.

Because we grant the petition on the basis that the BIA

erred in applying its own precedents in deciding whether

Henriquez-Rivas was a member of a particular social group,

we need not reach the question whether the BIA erred when

it failed to consider Henriquez-Rivas’ argument that she was

persecuted on account of political opinion. Nor do we reach

28 HENRIQUEZ-RIVAS V . HOLDER

the issues of withholding of removal or protection under the

Convention Against Torture.

The petition for review is GRANTED, the BIA’s decision

is VACATED, and the case is REMANDED for further

proceedings.

McKEOWN, Circuit Judge, concurring:

I concur in the result and the opinion, except to the extent

the majority counsels that the perception of the persecutor

“may matter the most” in analyzing social visibility or claims

that the persecutor’s view is “potentially dispositive” of the

question. On this point, Chief Judge Kozinski has the better

argument. See Matter of E-A-G-, 24 I. & N. Dec. 591, 594

(BIA 2008) (describing “social visibility” as “the extent to

which members of a society perceive those with the

characteristic in question as members of a social group”)

(emphasis added); In re A-M-E-, 24 I. & N. Dec. 69, 74 (BIA

2007) (noting that the 2002 guidelines of the United Nations

High Commissioner for Refugees “endorse an approach in

which an important factor is whether the members of the

group are ‘perceived as a group by society’”) (emphasis

added). Consistent with using society’s perspective as a

baseline, training materials for asylum officers—who make

the first determination on eligibility for applicants

affirmatively seeking asylum—instruct that the social

visibility “requirement can be met by showing that members

HENRIQUEZ-RIVAS V . HOLDER 29

of the group possess a trait or traits that make the members

recognizable or distinct in the society in question.”1

Defining social visibility from the perspective of society

better comports with the case law; perhaps just as

importantly, it also makes common sense. As the Chief

Judge points out, “[d]efining a social group in terms of the

perception of the persecutor risks finding that a group exists

consisting of a persecutor’s enemies list.” See also Mendez-

Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010) (“The

relevant inquiry is whether the social group is visible in the

society, not whether the alien herself is visible to the alleged

persecutors.”). To the extent the BIA’s prior decisions are

ambiguous as to whose perspective is critical in assessing

social visibility, we should—as the majority

recognizes—leave that determination to the BIA in the first

instance. The BIA is not in need of our advisory opinion on

the subject.

Chief Judge KOZINSKI, with whom Judge BYBEE joins,

dissenting:

In summarily reversing us just six years ago, the Supreme

Court held that it’s the BIA, not we, who must decide

whether a petitioner is a member of a particular social group

for purposes of asylum. Gonzales v. Thomas, 547 U.S. 183

1

See USCIS, Asylum Officer Basic Training Course, Asylum

Eligibility Part III: Nexus and the Five Protected Characteristics, 26

(M ar. 12, 2009), www.uscis.gov/USCIS/Humanitarian/Refugees

& Asylum/Asylum/AOBTC Lesson Plans/Nexus-the-Five-Protected-

Characteristics-31aug10.pdf (emphasis added).

30 HENRIQUEZ-RIVAS V . HOLDER

(2006) (per curiam). The Court quoted approvingly the

Solicitor General’s cert petition for the proposition that “a

court’s role in an immigration case is typically one of

‘review, not of first view.’” Id. at 185 (internal quotation

marks omitted). The majority today forgets this admonition

and engages in a good deal of first viewing, in clear

contravention of Thomas and INS v. Orlando Ventura,

537 U.S. 12, 16–17 (2002). Along the way, it deepens a

circuit conflict on an issue where national uniformity is vital,

and sows uncertainty into our circuit law where previously

there was clarity. The far wiser course would be for us to

vacate the order taking the case en banc as improvidently

granted and reinstate the three-judge panel’s disposition.

1. Congress has given the Attorney General discretion to

grant asylum to certain limited classes of aliens—those who

have a well-founded fear of persecution in their home

countries “on account of race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). Of these,

persecution on account of membership in a particular social

group is by far the most amorphous. See Maj. op. at 5;

Stanley D. Radtke, Defining a Core Zone of Protection in

Asylum Law, 10 J. L. & Soc. Challenges 22, 29 (2008). Race,

nationality, religious affiliation and political opinion can

usually be determined by objective evidence, but what

constitutes a social group requires a judgment about shared

norms and perceptions in the society where the individual is

living.

The asylum statute uses the term “particular social group”

but gives no clue as to what it means. There are no

committee reports, hearing transcripts or floor statements that

shed light on that obscure phrase. See Maryellen Fullerton,

HENRIQUEZ-RIVAS V . HOLDER 31

A Comparative Look at Refugee Status Based on Persecution

Due to Membership in a Particular Social Group, 26 Cornell

Int’l L.J. 505, 513–14 (1993). What we do know is that the

language came from the 1951 United Nations Convention

Relating to the Status of Refugees, July 28, 1951,

189 U.N.T.S. 137, by way of the 1967 United Nations

Protocol Relating to the Status of Refugees, Jan. 31, 1967,

19 U.S.T. 6223, 606 U.N.T.S. 267, which the United States

ratified in 1968. See Sanchez-Trujillo v. INS, 801 F.2d 1571,

1575 (9th Cir. 1986). Congress intended that the Act’s

refugee definition “be interpreted in conformance with the

[1967] Protocol’s definition.” See INS v. Cardoza-Fonseca,

480 U.S. 421, 436–37 (1987). But, the term “social group”

was added to the Convention last minute and without

discussion, so there is little extrinsic evidence as to what it

means. Radtke, supra, at 32. Advice from the United

Nations has come only ex-post. See, e.g., U.N. High Comm’r

for Refugees, Guidelines on International Protection:

“Membership of a particular social group” within the context

of Article 1A(2) of the 1951 Convention and/or its 1967

Protocol relating to the Status of Refugees, U.N. Doc.

HCR/GIP/02/02 (May 7, 2002).

Because of this indeterminacy in the drafting process, the

United States, along with other developed countries, has had

to struggle to give meaning to a term that has little pedigree

of its own. The process has, of necessity, involved

case-by-case adjudication and called for periodic adjustment

as our understanding of the term has evolved in light of

experience.

What agglomeration of people a society recognizes as a

group is seldom written down and must typically be deduced

from inconclusive evidence as to how individuals sharing

32 HENRIQUEZ-RIVAS V . HOLDER

common characteristics are viewed by those around them.

Take as an example a society we know something about—the

United States. I’d guess most people consider the following

to be identifiable social groups: Vietnam veterans, male

homosexuals, college students, lawyers, Masons, cancer

survivors, blind people, Cajuns, practitioners of Falun Gong

and hippies. And the following groups of people who have

something in common would, nevertheless, probably not be

viewed as social groups: left-handed people, high school

dropouts, blondes, crime victims, disabled people, dog

owners, second-born children and haters of broccoli.

This leads to several observations: First, it’s debatable

whether some of the proposed groups should be on the first

or second list. Crime victims may be too broad to define a

social group, but what about victims of rape or domestic

violence, or families of persons who were killed or maimed

by drunk drivers? Second, the appropriate granularity of any

group definition is subject to debate. Are Vietnam veterans

a group on their own or are they merely part of the larger

group of combat veterans? Do male homosexuals make up a

separate social group or are they part of a larger social group

that includes female homosexuals and transgendered persons?

Third, many—perhaps most—people in some social groups

may not identify themselves as part of any such group.

Masons choose to be Masons, but not all homosexuals

identify themselves by their sexual orientation, and some may

wish to conceal their sexual identity. Nevertheless, if society

sees homosexuals as a distinct social group, individuals with

that sexual orientation will be treated as involuntary

members, if and when their sexual orientation is discovered.

HENRIQUEZ-RIVAS V . HOLDER 33

As these examples illustrate, determining whether

someone is a member of a social group, even within our own

society, is no mean task. The matter is further complicated

when the question is whether another society, with a culture

and language different from our own, considers some subset

of its population to be a social group. The question is quite

important, however, because any number of people sharing a

characteristic could be considered a social group. The group

may be as small as two and as large as a majority of the

population, paving the way for huge numbers of people to

obtain political asylum. Yet, Congress surely didn’t mean to

open the immigration floodgates to everyone in the world

who is oppressed. Indeed, the Guidelines to the U.N.

Protocol state quite clearly that “the social group category

was not meant to be a ‘catch all’ applicable to all persons

fearing persecution.” In re C-A-, 23 I. & N. Dec. 951, 960

(BIA 2006) (quoting U.N. High Comm’r for Refugees,

Guidelines on International Protection, supra).

The United States received 74,000 asylum applications

last year, half again as many as any other industrialized

nation. See U.N. High Comm’r for Refugees, Asylum Levels

and Trends in Industrialized Countries 3 (2011), available at

http://www.unhcr.org/4e9beaa19.html. Confronted with the

difficult and sensitive task of determining whether individuals

seeking asylum are persecuted on the basis of membership in

a large variety of proposed social groups,1 the BIA has

1

At various times, the BIA has dealt with claims of persecution on the

basis of the following claimed social groups: persons resistant to gang

membership, see In re E-A-G-, 24 I. & N. Dec. 591 (BIA 2008), women

opposed to arranged marriage, see In Re A-T-, 24 I. & N. Dec. 296 (BIA

2007), wealthy Guatemalans, see In re A-M-E- & J-G-U-, 24 I. & N. Dec.

69 (BIA 2007), women intimately involved with men who believe in male

domination, see In re R-A-, 22 I. & N. Dec. 906 (BIA 2001), tribe

34 HENRIQUEZ-RIVAS V . HOLDER

announced and refined the standard for dealing with such

issues. In In re Acosta, 19 I. & N. Dec. 211 (BIA 1985), the

BIA took a first pass at the issue by holding that persecution

on account of membership in a particular social group means

“persecution that is directed toward an individual who is a

member of a group of persons all of whom share a common,

immutable characteristic. . . . [This characteristic] 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.” Id. at 233. Acosta

made it clear that “[t]he particular kind of group characteristic

that will qualify under this construction remains to be

determined on a case-by-case basis.” Id. The BIA’s

decisions on this issue are entitled to Chevron deference, and

more. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25

(1999).

Over the years, the BIA has worked diligently and

thoughtfully to refine the definition of membership in a social

group. Along the way, it’s announced a series of criteria and

limitations, all designed to give the term “social group” a

concrete and consistent meaning that doesn’t give a free pass

into the United States to anyone and everyone who is

members, see In re Y-B-, 21 I. & N. Dec. 1136 (BIA 1998), Filipinos of

mixed Filipino-Chinese ancestry, see In re V-T-S-, 21 I. & N. Dec. 792

(BIA 1997), former members of the Guatemalan military, see In re

C-A-L-, 21 I. & N. Dec. 754 (BIA 1997), women fearing genital

mutilation, see In re Kasinga, 21 I. & N. Dec. 357 (BIA 1996), Marehan

subclan members in Somalia, see In re H-, 21 I. & N. Dec. 337 (BIA

1996), Haitians deported from the United States, see In re Y-G-, 20 I. &

N. Dec. 794 (BIA 1994), homosexual men, see In re Toboso-Alfonso, 20

I. & N. Dec. 819 (BIA 1990), Chinese persons opposed to the one-child

policy, In re Chang, 20 I. & N. Dec. 38 (BIA 1989), and taxi drivers, see

In re Acosta, 19 I. & N. Dec. 211 (BIA 1985).

HENRIQUEZ-RIVAS V . HOLDER 35

persecuted in his home country. These criteria include the

following:

• A past experience is an immutable characteristic because

“it has already occurred and cannot be undone.” C-A-,

23 I. & N. Dec. at 958. But not every kind of “past

experience that may be shared by others suffices to define

a particular social group for asylum purposes.” Id.; In re

S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008).

• The characteristic common to the proposed group must be

such that the society in which it’s situated recognizes

individuals having that characteristic as constituting a

distinct social group. See C-A-, 23 I. & N. Dec. at

959–60; S-E-G-, 24 I. & N. Dec. at 586. The BIA

sometimes refers to this as the “social visibility”

requirement. See C-A-, 23 I. & N. Dec. at 959.

• “[A] social group cannot be defined exclusively by the

fact that its members have been subjected to harm, . . .

[but] this may be a relevant factor in considering the

group’s visibility in society.” A-M-E-, 24 I. & N. Dec. at

74.

• It isn’t necessary to show a “voluntary associational

relationship among the group members . . . [nor] an

element of cohesiveness or homogeneity among group

members.” C-A-, 23 I. & N. Dec. at 956–57 (internal

quotation marks omitted).

• “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.” A-M-E-, 24 I. & N. Dec. at 74. The BIA has

36 HENRIQUEZ-RIVAS V . HOLDER

“considered as a relevant factor the extent to which

members of a society perceive those with the

characteristic in question as members of a social group.”

C-A-, 23 I. & N. Dec. at 957.

• The risk faced by the group in question must be specific

to the group and not one shared by society at large, see

A-M-E-, 24 I. & N. Dec. at 75, or by anyone who stands

in the way of the persecutors. See C-A-, 23 I. & N. Dec.

at 960–61; S-E-G-, 24 I. & N. Dec. at 587 (“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 respondents 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.”).

• “[M]embership in a purported social group requires that

the group have particular and well-defined boundaries

. . . .” S-E-G-, 24 I. & N. Dec. at 582. “The essence of

th[is] ‘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.”

Id. at 584.

• The persecution that petitioners seek to escape must be

motivated by their membership in the group in question

and not by factors that are “quite apart” from such

membership. Id. at 585. The BIA explains the difference

by giving this example:

HENRIQUEZ-RIVAS V . HOLDER 37

Were a situation to develop in which former

police officers were targeted for persecution

because of the fact of having served as police

officers, a former police officer could

conceivably demonstrate persecution based

upon membership in a particular social group

of former police officers. On the other hand,

if a former police officer were singled out for

reprisal, not because of his status as a former

police officer, but because of his role in

disrupting particular criminal activity, he

would not be considered, without more, to

have been targeted as a member of a particular

social group.

C-A-, 23 I. & N. Dec. at 958–59.

These requirements can be summarized as follows: In

order to establish eligibility for asylum based on persecution

for membership in a social group, a petitioner must show that

he’s part of a group that’s well-defined by a characteristic

other than the fact that its members have been subjected to

harm; is recognized within the society as a distinct group; is

described with sufficient particularity so that it’s possible to

determine with reasonable certainty who’s included in the

group; and whose members are targeted for persecution

because of their membership in the group, not on account of

some other, perhaps closely associated, trait.

2. We approved the BIA’s approach in Ramos-Lopez v.

Holder, 563 F.3d 855 (9th Cir. 2009). Petitioner in that case

was a Honduran national who had refused recruitment by the

Mara Salvatrucha gang, or MS-13, which subsequently

threatened to kill him. See id. at 856. He came to the United

38 HENRIQUEZ-RIVAS V . HOLDER

States and claimed asylum on account of persecution on the

basis of membership in a particular social group, namely

young Honduran men who have been recruited by MS-13, but

who refuse to join. Id. The BIA, relying on S-E-G-,

determined that there was no such particular social group. Id.

at 859–62.

Judge Tashima’s well-reasoned opinion in Ramos-Lopez

(unlike the majority today) starts with the framework set out

by the Supreme Court in Thomas: “‘The matter requires

determining the facts and deciding whether the facts as found

fall within a statutory term.’” Id. at 859 (quoting Thomas,

547 U.S. at 186). Ramos-Lopez also gives due deference to

our en banc opinion in Marmolejo-Campos v. Holder,

558 F.3d 903 (9th Cir. 2009) (en banc), (as the majority here

does not) and concludes that the BIA’s construction of

particular social group is entitled to Chevron deference.

Ramos-Lopez, 563 F.3d at 858–60 & n.4. Deferring to the

BIA, we noted that prior gang recruitment was a past

experience that couldn’t be changed, but that such “‘shared

past experience [does not necessarily] suffice[] to define a

particular social group for asylum purposes.’” Id. at 860

(quoting S-E-G-, 24 I. & N. Dec. at 584) (alterations in

original). Hewing closely to the BIA’s reasoning, we noted

that “‘gang violence and crime in El Salvador [and Honduras]

appear to be widespread, and the risk of harm is not limited

to young males who have resisted recruitment . . . but affects

all segments of the population.’” Id. at 860–61 (quoting

S-E-G-, 24 I. & N. Dec. at 587). Significantly, we relied on

the BIA’s observation “that those who have resisted

recruitment are ‘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. (quoting S-E-G-, 24 I. &

N. Dec. at 587).

HENRIQUEZ-RIVAS V . HOLDER 39

Most other circuits have deferred to the BIA’s

interpretation of particular social group. See Orellana-

Monson v. Holder, 685 F.3d 511, 521 (5th Cir. 2012); Gaitan

v. Holder, 671 F.3d 678, 680–82 (8th Cir. 2012);

Rivera-Barrientos v. Holder, 666 F.3d 641, 647–53 (10th Cir.

2012); Lizama v. Holder, 629 F.3d 440, 444–48 (4th Cir.

2011); Scatambuli v. Holder, 558 F.3d 53, 59–60 (1st Cir.

2009); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73–74 (2d Cir.

2007); Castillo-Arias v. U.S. Attorney Gen., 446 F.3d 1190,

1197 (11th Cir. 2006); Castellano-Chacon v. INS, 341 F.3d

533, 546 (6th Cir. 2003).

Two circuits have taken a contrary view. In an opinion

that pays lip service to Thomas but, in fact, usurps the role of

the BIA, the Seventh Circuit rejected the Board’s social

visibility requirement. Gatimi v. Holder, 578 F.3d 611,

615–16 (7th Cir. 2009). The court’s reasons for doing so are

obscure but, best I can tell, the Seventh Circuit confused

social visibility with on-sight visibility, and criticized the BIA

for requiring that social groups be identifiable on sight:

Women who have not yet undergone female

genital mutilation in tribes that practice it do

not look 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

40 HENRIQUEZ-RIVAS V . HOLDER

invisible, they will not be “seen” by other

people in the society “as a segment of the

population.”

Id. at 615.

This criticism is unfounded. As even the majority here

recognizes, the BIA’s social visibility requirement doesn’t

mean that the characteristics defining the group must be

recognizable on sight. Maj. op. at 13–18. The BIA has made

it perfectly clear that the social visibility test is designed to

determine whether the proposed group of which petitioner

claims to be a member is perceived as a group by the society

in question, not whether individual members of the group can

be identified on sight. See C-A-, 23 I. & N. Dec. at 959–61.

That’s why it’s called social visibility rather than just

visibility.

The Seventh Circuit also criticized the BIA for

inconsistency with certain cases it had decided some two

decades earlier. Gatimi, 578 F.3d at 615–16. It blamed the

BIA for forging a new direction “without repudiating the

other line of cases.” Id. at 616. But, assuming the other cases

were inconsistent with the more recent ones—and I’m not

convinced they were—an agency is not bound to retain the

same interpretation in perpetuity; it may—indeed it

should—adapt its approach in light of experience. See FCC

v. Fox Television Stations, Inc., 556 U.S. 502, 514–15 (2009);

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 981 (2005). Nor is the agency required to

recite an incantation when it modifies an existing approach or

adopts a new one. It’s enough that the agency announces a

new policy, gives reasons for it and thereafter applies it

consistently. See Fox Television, 556 U.S. at 514–15; Brand

HENRIQUEZ-RIVAS V . HOLDER 41

X, 545 U.S. at 981. It’s when the agency treats some parties

before it one way while treating others, similarly situated,

differently that the problem of arbitrary enforcement arises.

The Seventh Circuit pointed to no such arbitrary enforcement

on the part of the BIA, so it’s hard to understand what the

Seventh Circuit was so grumpy about.

In Valdiviezo-Galdamez v. Attorney General of the United

States, 663 F.3d 582 (3d Cir. 2011), a divided panel struck

down the social visibility requirement, largely channelling the

Seventh Circuit’s opinion in Gatimi. Id. at 603–07. Doing

the Seventh Circuit one better, the Third Circuit also struck

down the BIA’s particularity requirement. Id. at 608.

According to the Third Circuit majority, “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.” Id. Judge Hardiman wrote separately,

recognizing the reasonableness of the social visibility and

particularity requirements and opining that the BIA was

entitled to adopt both on remand. Id. at 612, 615 (Hardiman,

J., concurring).

The Tenth Circuit considered the criticisms leveled at the

BIA by the Seventh Circuit and roundly rejected them in a

lucid opinion by Judge Tymkovich. Rivera-Barrientos,

666 F.3d 641. The Tenth Circuit noted that

the particularity requirement flows quite

naturally from the language of the statute,

which, of course, specifically refers to

membership in a ‘particular social group.’

[8 U.S.C.] § 1101(a)(42)(A) (emphasis

42 HENRIQUEZ-RIVAS V . HOLDER

added). . . . And as a matter of logic, it is

reasonable to read the statute as limiting its

recognition of ‘social groups’ to those that can

be defined with some specificity—to

encourage amorphous definitions would likely

yield inconsistent, arbitrary, and over broad

results.

Id. at 649; see also id. at 651–52 (expressly disagreeing with

the Seventh Circuit’s suggestion that social visibility requires

that “the relevant trait be visually or otherwise easily

identified” and giving examples from past BIA decisions).

Bravo to the Tenth!

3. Our circuit has given proper deference to the BIA’s

social visibility and particularity requirement in Ramos-Lopez

and numerous other cases. See, e.g., Donchev v. Mukasey,

553 F.3d 1206, 1216–17 (9th Cir. 2009); Soriano v. Holder,

569 F.3d 1162, 1165–66 (9th Cir. 2009); Santos-Lemus v.

Mukasey, 542 F.3d 738, 744–46 (9th Cir. 2008). The present

case involves a straightforward application of the principles

announced in those cases and so could have been decided in

an unpublished disposition—as, in fact, it was. Henriquez-

Rivas v. Holder, 449 F. App’x 626 (9th Cir. 2011). And there

it might have remained, but for a concurrence by the author

of the current majority opinion, joined by a visiting judge

who happened to be a member of the panel that issued the

misbegotten Seventh Circuit Gatimi opinion. The

concurrence quotes Gatimi approvingly, echoes the charges

of inconsistency and irrationality leveled by the Third and

Seventh Circuits, and calls for en banc re-evaluation of our

circuit law concerning political asylum based on membership

in a particular social group. Id. at 628–33. Not surprisingly,

the full court obliged, so here we are.

HENRIQUEZ-RIVAS V . HOLDER 43

This brings us to today’s opinion, which starts off well

enough but then quickly and deeply falls into error. The

majority first tackles the question of whether the social

visibility requirement calls for ocular recognition or

perception by society. Maj. op. at 13–18. The opinion goes

on for much longer than necessary but eventually reaches the

obvious—and right—conclusion that social visibility refers

to social perceptions, not to on-sight recognition. Id.

Thankfully, my colleagues avoid the pitfall of Gatimi, which

they quote prominently, id. at 13, but eventually forsake.2

The panel then goes on to make some serious mistakes of

its own. The first of these concerns “who must perceive the

petitioner as belonging to a particular social group.” Maj. op.

2

Though it eschews Gatimi’s conclusion, the majority does cast doubt

on our cases holding that the social visibility and particularity

requirements are entitled to Chevron deference. After speaking

approvingly about the Seventh and Third Circuit opinions, the majority

drops a heavy hint that we may soon follow suit: “Thus, we need not

decide, in this case, at this time, whether the ‘social visibility’ and

‘particularity’ criteria merit Chevron deference.” Maj. op. at 22. But we

have decided that these requirements are entitled to Chevron deference.

See Barrios v. Holder, 581 F.3d 849, 855 (9th Cir. 2009); Ramos-Lopez,

563 F.3d at 858–59; Arteaga v. Mukasey, 511 F.3d 940, 944–45 (9th Cir.

2007).

An en banc court can do many things, but it can’t simply declare a

question unsettled. If my colleagues wish to reconsider Ramos-Lopez,

they’re free to do so. But they have no authority to declare the issue open

when our circuit law has decided it. The majority’s provocative

suggestion that we may, in a future case, decide to deny Chevron

deference to the BIA’s social visibility and particularity requirements will

cause trouble down the road, as lawyers and judges puzzle about whether

today’s ruling was meant to clear the way for bringing Ninth Circuit law

into line with that of the Seventh and Third Circuits. It has not because it

cannot.

44 HENRIQUEZ-RIVAS V . HOLDER

at 17–18. Using circular reasoning, the opinion concludes

that “the perception of the persecutors matters the most.”

Maj. op. at 18. That’s three mistakes right there. See

generally Conc. op. (McKeown, J.). First, it’s not our call;

it’s the BIA’s. See id. at 29. If there’s any doubt whether the

BIA has decided the issue, the most we can do is point out the

problem and remand for the BIA to resolve the question in

the first instance. See Ventura, 537 U.S. at 16; Montes-Lopez

v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007). Only after

it does, can we decide whether that construction is

reasonable; never do we get to decide such a question of

interpretation in the first instance. By casting its conclusion

as mere “observation” or “suggest[ion],” the majority

attempts an end run around Ventura. Maj. op. at 18, 19. But

observations and suggestions that go on for more than six

hundred words and three footnotes amount to much more

than random thoughts. The message to the BIA is clear: We

have decided; please do us all the favor of falling in line now.

Second, the BIA has decided the question: “[W]e

referred to the 2002 guidelines of the United Nations High

Commissioner for Refugees, which endorse an approach in

which an important factor is whether the members of the

group are perceived as a group by society.” A-M-E-, 24 I. &

N. Dec. at 74 (internal quotation marks omitted) (emphasis

added); see also Conc. op. at 28 (McKeown, J.). The

majority’s determination that it’s the perception of the

persecutor that matters is contrary to the approach of the BIA.

This we may not do without first finding that the BIA’s

interpretation is incompatible with the language of the statute,

which of course it’s not.

Third, and worst of all, the majority’s conclusion that it’s

the perception of the persecutor that matters is at loggerheads

HENRIQUEZ-RIVAS V . HOLDER 45

with the BIA’s repeated admonition that “a social group

cannot be defined exclusively by the fact that its members

have been subjected to harm.” A-M-E-, 24 I. & N. Dec. at 74

(relying on the Guidelines of the U.N. High Commissioner

for Refugees); see also Conc. op. at 29 (McKeown, J.).

Defining a social group in terms of the perception of the

persecutor risks finding that a group exists consisting of a

persecutor’s enemies list. The BIA’s approach is to

determine whether petitioner has met his burden of showing

that the society in question recognizes him as a member of a

social group, and then to ask whether he is persecuted on

account of his membership in that group. We are bound to

follow the methodology adopted by the agency, not invent

our own.

But it gets worse. The majority vacates the BIA’s

determination that Henriquez-Rivas failed to show that she

was subjected to persecution on account of her membership

in the group of people testifying against gang members

because the proposed group lacks social visibility: “[P]eople

testifying against gang members is merely a shared

experience and not a particular social group within the

meaning of the Act.” Henriquez-Rivas, No. A098 660 718,

at 1 (BIA May 1, 2009). The BIA also held that “defining the

group as persons opposing gang members is too amorphous.”

Id.

My colleagues vacate the BIA’s social visibility

determination on the ground that it is, in their view,

inconsistent with the BIA’s “own precedent as stated in C-A-

and its progeny.” Maj. op. at 22–23. According to the

majority, “[t]his case clearly falls within the language in C-A-

holding that those who testify against cartel members are

socially visible: ‘[V]isibility is limited to those informants

46 HENRIQUEZ-RIVAS V . HOLDER

who are discovered because they appear as witnesses or

otherwise come to the attention of cartel members.’” Id. at 23

(quoting C-A-, 23 I. & N. Dec. at 960) (emphasis omitted).

The lone phrase from C-A-, which is the fulcrum of the

majority’s reasoning, simply will not bear the weight.

To begin with, the sentence describes a necessary

condition for social visibility, but the BIA nowhere says it’s

sufficient. C-A- was one of the earliest cases where the BIA

elucidated the social visibility requirement by considering the

proposed group of non-criminal informants. In finding that

the proposed group isn’t socially visible, the Board disposed

of the case on the ground that the members of the group

weren’t identifiable at all, and thus couldn’t be the targets of

persecution. See C-A-, 23 I. & N. Dec. at 960–61.

But that’s not all the BIA said in C-A-. On the same page

where it used the language on which my colleagues rely, the

BIA set forth a further ground for rejecting the asylum

application:

The record in this case indicates that the Cali

cartel and other drug cartels have directed

harm against anyone and everyone perceived

to have interfered with, or who might present

a threat to, their criminal enterprises. In this

sense, informants are not in a substantially

different situation from anyone who has

crossed the Cali cartel or who is perceived to

be a threat to the cartel’s interests.

C-A-, 23 I. & N. Dec. at 960–61 (internal quotation marks

omitted); see also Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993). This rationale speaks directly to whether a petitioner

HENRIQUEZ-RIVAS V . HOLDER 47

is the subject of persecution on account of his group

membership. If someone is persecuted on grounds that are

closely associated with group membership but also apply to

many others in society, then the persecution is not on account

of membership in a particular social group. The BIA has

made it clear in subsequent cases that this is a limitation on

social visibility. See, e.g., A-M-E-, 24 I. & N. Dec. at 75.

When reviewing agency decisions for consistency, we

aren’t allowed to cherry-pick stray sentences from the

agency’s past opinions and ignore others. Nor may we insist

that the agency stand by its rulings in perpetuity. An agency

charged with administering an ambiguous statute is entitled

to change its mind. See Fox Television, 556 U.S. at 514–15.

Assuming that the BIA was at some point in the past

bound by the stray sentence on which the majority relies, the

agency has long since modified that position. In S-E-G-, for

example, the BIA dealt with a proposed social group

consisting of youths who resisted gang recruitment efforts.

24 I. & N. Dec. at 582. The gangs obviously knew who

refused their recruitment efforts, and the fear of retaliation

arose because of that knowledge. In that regard, the

petitioners in S-E-G- were in precisely the same position as

individuals who testified openly against gangs (like petitioner

here). Yet the Board held that this wasn’t sufficient to meet

the social visibility requirement: “[Y]outh who have been

targeted for recruitment by, and resisted, criminal gangs may

have a shared past experience, which, by definition, cannot be

changed. However, this does not necessarily mean that the

48 HENRIQUEZ-RIVAS V . HOLDER

shared past experience suffices to define a particular social

group for asylum purposes.” Id. at 584.3

4. Having found fault with the BIA’s determination that

petitioner’s proposed group lacks social visibility, the

majority goes on to make findings of its own. This is wrong.

We’ve been told time and again that we aren’t fact-finders;

we’re reviewers. See Ventura, 537 U.S. at 16. And, when it

comes to the difficult, sensitive and fact-intensive question as

to whether petitioner is a member of a particular social group,

“[t]he matter requires determining the facts and deciding

whether the facts as found fall within a statutory term.”

Thomas, 547 U.S. at 186. The proper course in such

circumstances is to apply the “ordinary ‘remand’ rule,” and

refer the matter back to the agency in light of whatever views

of the law we may express in our opinion. Id. at 187. Yet my

colleagues defy the Supreme Court on a point where we’ve

been summarily reversed twice before. Id. (citing Ventura,

537 U.S. 12). Pretty gutsy.

3

The majority also errs in reversing the BIA’s ruling as to particularity.

Maj. op at 27. The BIA held that “defining the group as persons opposing

gang members is too amorphous.” Henriquez-Rivas, No. A098 660 718,

at 1. The majority criticizes the BIA for misstating Henriquez-Rivas’s

position: “This was an incorrect statement of Henriquez-Rivas’ proposed

social group, which referred to those who had testified against M-18 gang

members in open court.” Maj. op. at 26. But the BIA was reviewing the

immigration judge, who had found that Henriquez-Rivas was a member

of a group consisting of “people testifying against or otherwise [opposing]

gang members.” Henriquez-Rivas, No. A098 660 718, at 1 (quoting Oral

Decision of the Immigration Judge at 1, In re Henriquez-Rivas, No. A 098

660 718 (May 7, 2007)). The BIA couldn’t just ignore that disjunctive

finding. It properly held that the group, as found by the immigration

judge, lacked particularity.

HENRIQUEZ-RIVAS V . HOLDER 49

Jumping head first into the fact-finding process, the

majority makes a mess of it. According to the opinion, the

BIA here

failed to consider significant evidence that

Salvadoran society recognizes the unique

vulnerability of people who testify against

gang members in criminal proceedings,

because gang members are likely to target

these individuals as a group. Notably, as

Henriquez-Rivas cited in her briefing before

the BIA as well as in her opening brief on

petition for review, the Salvadoran legislature

enacted a special witness protection law in

2006 to protect people who testify against

violent criminal elements, such as MS, in

Salvadoran court. It is difficult to imagine

better evidence that a society recognizes a

particular class of individuals as uniquely

vulnerable, because of their group perception

by gang members, than that a special witness

protection law has been tailored to its

characteristics.

Maj. op. at 24–25 (emphasis added) (internal citations

omitted). But the BIA did explicitly consider and reject

precisely this purported evidence: “We are unpersuaded by

the respondent’s apparent attempt to equate El Salvador’s

enactment of a witness protection law in that country to the

definition of refugee under United States immigration law.”

Henriquez-Rivas, No. A098 660 718, at 1–2.

Furthermore a class of individuals can be identified as

uniquely vulnerable and given legal protection, yet not

50 HENRIQUEZ-RIVAS V . HOLDER

constitute a social group. We have laws recognizing the

unique vulnerability of children, see, e.g., Child Abuse

Prevention and Treatment Act, 42 U.S.C. § 5101 et seq., yet

we don’t consider all children to constitute a particular social

group. We have laws protecting individuals who are

disabled—physically and mentally—see, e.g., Americans

with Disabilities Act, 42 U.S.C. § 12101 et seq., yet we

wouldn’t say that blind people, people in wheelchairs, those

who are hearing-impaired and those who have Down

syndrome or autism all make up a social group. We have

laws giving special protection to victims of crime, such as the

Victim and Witness Protection Act of 1982, Pub. L. No. 97-

291, 96 Stat. 1248 (1982), but all victims of crime don’t make

up a big social group. The list is endless.

This isn’t to say that legal protection never coincides with

group status; the legislature may well pass laws that protect

what’s otherwise recognized as a social group, such as

veterans or school teachers. But whether this is the case is a

question of fact. And, as my colleagues seem to have

forgotten, we aren’t fact-finders. When the majority says

“[i]t is difficult to imagine better evidence [of social

visibility],” maj. op. at 25 (emphasis added), it’s pretty much

conceding that that’s what it’s doing—and doing it in direct

contravention of the BIA’s own finding on the same issue.

The only way we could vacate the BIA’s decision on this

point is if we concluded that it’s “illogical, implausible, or

without support in inferences that may be drawn from facts in

the record.” Cf. United States v. Hinkson, 585 F.3d 1247,

1251 (9th Cir. 2009) (en banc).

Can we honestly say that there is no support in the record

for the BIA’s finding? Hardly. As the BIA has pointed out,

violence against anyone and everyone who interferes with

HENRIQUEZ-RIVAS V . HOLDER 51

gangs is endemic in El Salvador. Those who testify against

gang members, those who resist their recruitment, those who

inform against them to the government, those who cross them

in any way—they all get on the gangs’ enemies list and

become the targets of violence, as do many others in society

at large. That the government chooses to single out some

targets of violence for special protection doesn’t imply that

the society at large or the gangs themselves view them as a

particular social group. The government may well have

reasons independent of any group status for giving these

individuals special protection. The reason here is obvious:

The Salvadoran government has a strong interest in protecting

the integrity of its criminal justice system by giving witnesses

in criminal cases special protection. This is true in the United

States as well: We have various statutes that make it a

criminal offense to intimidate or otherwise interfere with

witnesses; we also have a witness protection program. But

this doesn’t mean that we consider witnesses in criminal

cases or even those who are in the witness protection program

to be members of a particular social group. The question is,

at the very least, debatable and my colleagues are wrong to

try to make the finding themselves. We are, as the Supreme

Court has told us, reviewers, not first viewers.

While the majority may believe its ruling is narrow, the

implications are actually vast. As pointed out earlier,

witnesses against gang members are not in a materially

different position from others who act in opposition to gangs.

C-A-, 23 I. & N. Dec. at 960–61. The BIA has consistently

adhered to this rationale, rejecting asylum applications in

numerous cases. See, e.g., S-E-G-, 24 I. & N. Dec. at 586–87;

A-M-E-, 24 I. & N. Dec. at 74–75. Today’s ruling casts doubt

on this entire body of caselaw and puts the BIA in the

untenable position of applying materially different law to

52 HENRIQUEZ-RIVAS V . HOLDER

asylum applicants who claim to be victims of gang violence

depending on whether their cases will be appealed to our

circuit or to one of the circuits that have approved the BIA’s

approach, such as the First, Second, Fourth, Fifth, Sixth,

Eighth, Tenth and Eleventh. Today’s opinion will thus force

precisely the kind of inconsistency and arbitrariness in the

agency’s rulings that the majority now purports to correct.

* * *

This case should never have been taken en banc. The

three-judge panel’s unpublished disposition says all that need

be said in this case. We should’ve left well enough alone.