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Tuesday, October 9, 2012

Gang Asylum-Withholding Cases

Our firm recently submitted an I-589 asylum/withholding appeal for a client that was involved in gangs while living in Guyana. Our BIA appeal centered on what is considered a "social group" for purposes of withholding. We argued that, "former gang members who have publically renounced their gang affiliation and taken substantive steps to effect the renunciation" are a discreet social group warranting protection.

This is the first of a two part posting on the topic. This first post covers current cases (we are located in the 4th (Federal) Circuit -- The 4th Circuit has upheld BIA’s definition process for social groups. Citing to the same cases outlined in the text below, the Court stated: “Neither the relevant statute nor its associated regulations specifically define the term "particular social group." We therefore defer to the BIA’s reasonable interpretation of the term.” (citing to Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir. 2009)). Lizama v. Holder, 629 F.3d 440 at 446-447 (4th Cir. 2011))


1. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) constitutes the over-arching case which controls the premise upon which “social groups” are defined. This case has not been overturned by any Federal Court, and BIA continues to refer to Matter of Acosta when considering matters pertaining to social groups.

2. To qualify for inclusion in a protected group, an individual must be a member of a group of persons all of whom share a common, immutable characteristic. (supra, at 233).

3. In Matter of C-A-, 23 I&N Dec. 951 (BIA, 2006), the Board updated its approach to defining social groups by expressing that one factor to be considered is the extent to which members of a society perceive those with the characteristics in question as members of a group. (supra, at 957, stating: “we have 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.”). This was strongly re-affirmed in 2008, when the Board summarized the “society perception” concept into one word: visibility. Matter of S-E-G-, 24 I&N Dec. 579, 586 (BIA, 2008).

4. Yet another key characteristic of defining a viable, social group acceptable for purposes of refugee, asylum, and withholding purposes is whether the group can be defined with sufficient particularity to delimit its membership. Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA, 2007). For the purposes of particularity, this case discusses whether “wealth”, “affluence”, or more generally monetary standing constitutes a sufficient discriminator for group definition; the Board held it did not, and discussed the need for specificity as a core characteristic of social group definition.

The respondents’ proposed social group is indeterminate, and not just at the margins, as will often be the case in describing group membership. Rather, when “wealth” is the sole criterion, group membership is difficult to delimit for a large swath of potential members. The characteristic of wealth or affluence is simply too subjective, inchoate, and variable to provide the sole basis for membership in a particular social group. (supra, at 76)

The essence of the “particularity” requirement, therefore, 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 person. Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA, 2008).

5. Two additional characteristics of social groups were teased out of the Matter of A-M-E & J-G-U case when the Board issued its decision in 2007. Specifically, that the level of harm incurred is relevant to group definition, and that all other factors must be taken in the context of the country in question (from which refugee, asylum or withholding is sought), and the type/nature of persecution alleged. Referring to the 2002 Guidelines of the United Nations High Commissioner for Refugees, the Board wrote: Although a social group cannot be defined exclusively by the fact that its members have been subjected to harm, we noted that this may be a relevant factor in considering the group’s visibility in society. Id. at 960 [reference to UNHCR report] (supra, 74).

Further clarifying the “social visibility” doctrine enunciated in Matter of C-A-, the Board explained: 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. (Matter of A-M-E & J-G-U, at 74, Social Visibility).

6. In summary, over the period of 1985 – 2008, the Board has established the following criteria for defining social groups :

Do you have an appeal (BIA or Federal case) that would benefit from a thorough review? Asylum/Withholding/CAT claims are tricky, and require experience to properly argue -- and even more so to win on appeal. While no appeal is guaranteed, there are key writing styles/approaches that can make a significant different. Contact us! We can help you ensure the highest possibility of success. When deportation or jail/detention is at stake -- it pays to have an expert help.


Sean R. Hanover, Esq
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