Asylum -- Social Visibility and Particularity Requirements

The Ninth Circuit Court of Appeals last month issued an important decision on asylum law in a case titled Henriquez-Rivas v. Holder. The opinion interests me (I am a Santa Clara County Immigration Lawyer with a practice based in San Jose, California) not only on its facts but for its divisiveness.

Rocio Brenda Henriquez-Rivas, a native and citizen of El Salvador, was twelve years old when her father was murdered by four members of a Salvadoran gang. Henriquez-Rivas testified against her father's killers in a criminal trial in a Salvadoran court. Her testimony led to the conviction and imprisonment of two of those responsible for killing her father. Even though El Salvadoran law protected witnesses like Henriquez-Rivas, the Salvadoran government was unable to control the gang, whose activities subsequent to the trial targeting Henriquez-Rivas made her decide to flee El Salvador and to seek asylum in the United States.

The immigration judge ("IJ") who considered Henriquez-Rivas's asylum application found that Henriquez-Rivas had suffered past persecution as a member of a social group who testified against or otherwise opposed gang members, and that the Salvadoran government was unable to protect Henriquez-Rivas from gang violence. The Board of Immigration Appeals (BIA) disagreed, rejecting the IJ's determination that Henriquez-Rivas, by virtue of her testifying in court, belonged to a member of a social group, since that group lacked social visibility and particularity. The Ninth Circuit Court of Appeals reversed the BIA's decision, holding that the BIA had erred in applying its own standards. According to the BIA's precedents, Henriquez-Rivas's activities in testifying against her father's killers in court rendered her socially visible and deserving of protection under the asylum law. The dissent authored by Chief Judge Kozinski accused the majority of judicial overreaching; he would have left the BIA's decision untouched.

Under the Immigration and Nationality Act (INA), a person seeking asylum as a refugee must prove that he is "unwilling or unable to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The Ninth Circuit takes the position that the statutory term "social group" is ambiguous. (What exactly does it mean to be a member of a "particular social group"?) The BIA has defined the term to embrace persecution directed at members who share a common, immutable characteristic which they cannot or should not be required to change. BIA precedents also require applicants to demonstrate that their proposed social group has "social visibility" and "particularity." While some circuits have accepted these terms, others, including the Third and Seventh Circuits, have criticized them as unreasonable.

The Ninth Circuit stopped short of dumping the "social visibility" and "particularity" criteria. It held that it was not necessary for Henriquez-Rivas's proposed social group (persons who have testified in court against gang members) to be visually recognizable as group members, so long as their persecutors could discover the witnesses' identities and single them out for revenge on that basis. In that sense, it is the perception of the persecutors that matters the most, though only when a proposed social group may not be visible to society as a whole. The Ninth Circuit further observed that the "particularity" requirement was a relevant factor to determine whether a pool of persons qualify as a social group "in practice."

The Court's holding means that persons applying for asylum within the jursidiction of the Ninth Circuit who have opposed gang members by testifying against them in court -- and who have suffered persecution or have a well-founded fear of persecution on that basis -- can claim to be members of a particular social group who are socially visible because they can be detected by their persecutors.