stating that the “ultimate question” in the particularity requirement “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” (internal quotation marks omitted)
How later courts described this case
- stating that the “ultimate question” in the particularity requirement “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” (internal quotation marks omitted)
- recognizing that “proposed social groups of those generally opposed to gangs or resistant to gang recruitment” may not constitute a particular social group “if the society in question does not perceive those with such views as constituting a distinct group of persons”
- stating that “social visibility” requires “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” (internal quotation marks omitted)
- holding that those who testify in court against cartel members fulfill the social-visibility prong because significant evidence showed Salvadoran society recognized such witnesses, including through the passage of legislation to protect them
Written by the judges who cited it.
The opinion
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-, 241. & 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 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, “[djefining 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.
. See USCIS, Asylum Officer Basic Training Course, Asylum Eligibility Part III: Nexus and the Five Protected Characteristics, 26 (Mar. 12, 2009), www.uscis.gov/USCIS/Humanitarian/ Refugees&Asylum/Asylum/AOBTCLesson Plans/Nexus-the-Five-Protected-Characteri stics-31augl0.pdf (emphasis added).