CA9 on Guatemala, Social Group: Pirir-Boc v. Holder

Court staff summary: "The panel granted a petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture, and remanded for further consideration in light of Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (2013) (en banc), Matter of W-G-R-, 26 I. & N. Dec. 208 (2014), and Matter of M-E-V-G-, 26 I. & N. Dec. 227 (2014).

Petitioner asserted a fear of persecution by gangs in Guatemala on account of his membership in a particular social group characterized as individuals “taking concrete steps to oppose gang membership and gang authority.” The panel first held that the Board’s recent decisions in Matter of W-G-R and Matter of M-E-V-G did not affect the construction of social group set forth by the en banc court in Henriquez-Rivas, with the qualification that the persecutors’ perception is not itself enough to make a group socially distinct, and persecutory conduct alone cannot define the group, rather, the persecutor’s perspective is one factor among others to be considered in determining a group’s social visibility. The panel noted that the critical issue in each of the new Board decisions is whether there is evidence to support social recognition of the proposed group, and the panel explained that to be consistent with its own precedent, the Board may not reject a group solely because it previously found a similar group in a different society to lack social distinction or particularity. Because the Board in this case did not perform the required evidence-based inquiry as to whether Guatemalan society recognizes petitioner’s proposed social group, the panel remanded to the Board for reconsideration in light of Henriquez-Rivas, Matter of W-G-R and Matter of ME-V-G.

The panel explicitly did not decide whether the Board’s requirements of “social distinction” and “particularity” constitute a reasonable interpretation of the term “particular social group.” The panel remanded petitioner’s CAT claim for the Board
to provide a reasoned explanation of the basis for its decision." - Pirir-Boc v. Holder, May 7, 2014.  [Hats off to Roger S. Green and Jenny Tsai!]