En banc Ninth Circuit decides Henriquez-Rivas, remands, but does not rule on validity of BIA’s social visibility standard; Kozinski dissentsFebruary 14, 2013
Yesterday, the en banc Ninth Circuit issued its long awaited opinion in Henriquez-Rivas v. Holder. The full court did not decide whether the BIA’s “social visibility” and “particularity” requirements are valid. The court clarified that social visibility cannot mean literal naked-eye visibility, but is rather some broader form of societal perception. It then criticized the Board for failing to identify whose perceptions within a society determine wither a group is visible, and strongly suggested that the persecutor’s own perceptions should be key in the analysis. On “particularity”, the court acknowledged that the BIA and Ninth Circuit had conflated this test with “social visibility,” but held that particularity is just one factor in the overall assessment of a proposed social group. The court overruled Soriano v. Holder, 569 F.3d 1162 (9th Cir. 2009) and Velasco-Cervantes v. Holder, 593 F.3d 975 (9th Cir. 2010), to th extent they found social groups of witnesses invalid because they lacked homogeneity. The court then granted the petition and remanded after holding Henriquez-Rivas’s particular social group of witnesses was visible and particular under BIA precedent. Judge Kozinski dissented and argued the majority had failed to apply proper Chevron deference, violated the normal remand rule, and left the Ninth Circuit’s own social group precedents in disarray.
ILCM issues updated practice advisory on “particular social group” litigationDecember 01, 2012
On November 28, 2012, ILCM litigation project co-directors Benjamin Casper and Kate Evans presented a CLE, Membership in a Particular Social Group: an update, preview of the year ahead, and legal strategies for your client. The event, held at William Mitchell College of Law, was sponsored by the Minnesota/Dakotas Chapter of the American Immigration Lawyers Association. In connection with the CLE, Casper and Evans issued this practice advisory featuring a complete circuit-by-circuit update of litigation challenging Matter of S-E-G-’s “social visibility” and “particularity” requirements.
BIA to hold oral argument in Third Circuit remand of Valdiviezo-Galdamez II; DHS submits brief advocating new “social distinction” testNovember 20, 2012
On December 11, 2012, the BIA will hold oral argument in Valdiviezo-Galdamez, on remand for the second time following the Third Circuit’s ruling in Valdiviezo-Galdamez v Att’y Gen., 663 F.3d 582 (3rd Cir. 2011). In addition to the parties, UNHCR will present oral argument as amicus curiae. In advance of argument, the parties filed supplemental briefs. Notably, the DHS supplemental brief calls on the BIA to adopt a new “social distinction” test in place of the controversial “social visibility” and “particularity” requirements. Several organizations have filed amicus briefs, including UNHCR, the National Immigrant Justice Center, the Center for Gender and Refugee Studies, UNLV, and the American Immigration Lawyers Association. Also, the BIA issued this set of questions for oral argument that it has asked to parties and UNHCR to address.
Supreme Court denies two gang-asylum petitions for certiorariNovember 01, 2012
On October 29, 2012, the Supreme Court denied certiorari in two prominent gang-asylum appeals. The first was the Eighth Circuit case Gaitan v. Holder, No. 11-1525 in which ILCM was co-counsel for the petitioner. The second appeal, out of the Eleventh Circuit, was Velasquez-Otero v. Holder, No. 11-1321.
ILCM and allies seek review of gang-asylum case at U.S. Supreme CourtJuly 30, 2012
In Gaitan v. Holder, 671 F.3d 679 (8th Cir. 2012), ILCM and co-counsel from Latham & Watkins and the Wilson Law Group unsuccessfully challenged the Board of Immigration Appeals’ controversial new requirements that asylum seekers claiming membership in a “particular social group” must demonstrate the proposed group possesses both particular and well-defined boundaries (“particularity”) and a recognized level of “social visibility,” as set forth in Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008). While the Eighth Circuit upheld the BIA in Gaitan, there is a clear circuit split on the validity of these new requirements, with the Seventh and Third circuits refusing to defer to the Board, Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), Valdiviezo-Galdamez v Att’y Gen., 663 F.3d 582 (3rd Cir. 2011), and the en banc Ninth Circuit reconsidering its prior approval of the S-E-G- standard. Henriquez-Rivas v. Holder, 670 F.3d 1033 (9th Cir. 2012). ILCM and our Gaitan co-counsel have now filed a petition for certiorari with the U.S. Supreme Court. Our case was recently highlighted by SCOTUS blog as a “petition to watch.” We expect the Court to consider our petition in the fall.
Eighth Circuit hears argument in first direct challenge of "social visibility" requirementMay 13, 2011
Yesterday, the Eighth Circuit (Wollman, Bye, Shepherd) heard oral argument in in the gang recruitment case, Granados-Gaitan v. Holder, No. 10-1724. This is the first direct challenge of Matter of S-E-G-'s social visibility test to be submitted in the circuit and the court scheduled extended argument of 20 minutes per side. Lori Alvino McGill of Latham & Watkins argued for petitioner. David Wilson briefed the case and UNHCR filed this amicus brief. The Court appeared inclined to remand for further agency explanation of the visibility test. Judge Wollman stated at one point to government counsel that he would "tip his hand", then went on to ask whether the government's brief actually conceded remand was necessary, and, if not, what exactly the court would need to do to justify a remand to the BIA.
Listen to the argument here
Read the government'a brief here.
Francis Gatimi granted asylum following BIA remandApril 01, 2011
On March 29, 2011, an IJ in Kansas City granted asylum to Francis Gatimi, the petitioner in the important Seventh Circuit case, Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009). Following the Seventh Circuit's remand, which derided the Board's social visibility test, the BIA received this amici curiae brief, joined by several organizations including ILCM. Then, on November 22, 2010, the BIA entered this order remanding in turn to the IJ, finding the Seventh Circuit's opinion compelled a grant of asylum relief. Notably, the BIA declined the request of amici to reconsider and abandon the social visibility requirement. Perhaps even more notable, Board member Roger Pauley dissented, arguing that the Seventh Circuit left the BIA free "to more thoroughly explain our social visibility test in this case." Pauley did not offer a further explanation of social visibility in his dissent, but stated the Board's action, "leaves the law in disarray and is inconsistent with [...] our obligation to provide uniform guidance."
Fourth Circuit recognizes social group of "family members who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses"February 20, 2011
On February 16, 2011, the Fourth Circuit published Crespin Valladares v. Holder, No. 09-1423, holding that "family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses" is a valid social group. The court reasoned that family ties are a paradigmatic characteristic unifying social groups under Acosta and that the Board has previously declared family ties to be socially visible in cases including Matter of C-A-. For this reason, among others, the court rejected as manifestly contrary to law the BIA's determination that the proposed social group lacked social visibility under Matter of S-E-G-. The Fourth Circuit also reversed the finding that MS-13 death threats against Crespin-Valladares' family did not establish his well founded fear of persecution, and it remanded for further clear error review the questions (1) whether Crespin-Valladares proved nexus, and (2) whether the government of El Salvador is unable or unwilling to control the MS-13 gang.
When will Third Circuit decide Valdiviezo-Galdamez II?January 27, 2011
February 3, 2011 will mark a full year since the Third Circuit held oral argument in the consolidated cases, Valdiviezo-Galdamez v. Holder, No.08-4564, and Mejia Fuentes v. Holder, No. 08-2783. The brutal comments of the panel judges--calling the social visibility concept "gobbeldy gook" and voicing their strong agreement with the Seventh Circuit's rejection of it--suggest they may be poised to reject Matter of S-E-G- . This would create a much sharper circuit split over S-E-G- and could increase the viability of any new certiorari petitions at the Supreme Court.
This is Valdiviezo-Galdamez's second petition for review and turns on his claim of persecution on account of membership in the social group of “young Honduran men who have been actively recruited by gangs and who have refused to join the gangs”. Four years years ago the Third Circuit remanded his gang-recruitment claim to the Board in Valdiviezo-Galdamez v. U.S. Atty. Gen., 502 F.3d 285 (3d Cir. 2007), commenting that it appeared valid under Acosta and other pre-S-E-G- precedents. The Board sat on the remanded asylum application until it decided Matter of S-E-G-, then denied it on social visibility / particularity grounds, leading to the current round of litigation.
Fourth Circuit avoids ruling on validity of social visibility criterion but still denies social group of "young, Americanized, well-off, Salvadoran male deportees with criminal histories who oppose gangs."January 27, 2011
The Fourth Circuit in Lizama Mejia v. Holder, No. 09-2027 (January 19, 2011) dismissed Lizama's asylum claim as untimely then rejected his proposed social group in analyzing his withholding claim. The court noted the Seventh Circuit's decisions rejecting the social group requirement but avoided taking a side in the current circuit split, concluding that Lizama's proposed group is otherwise invalid both because his Americanized dress and speech are not immutable characteristics under Acosta, and because Americanization, wealth and gang opposition are "amorphous" characteristics that do not satisfy the separate requirement of particularity. The court concluded, "as a whole, the group described is not narrow or enduring enough to clearly delineate its membership or readily identify its members."