Third Circuit on social group, Chevron, exhaustion: Valdiviezo-Gamez II

Third Circuit on social group, Chevron, exhaustion: Valdiviezo-Gamez II

"In Lin v. Attorney General, 543 F.3d 114 (3d Cir. 2008), we held that “the BIA’s consideration of an issue is sufficient to provide us with jurisdiction over that issue" even if the petitioner fails to raise the issue before the BIA. 543 F.3d at 123 n.7. Here, the BIA held that the “particular social group” proposed by Valdiviezo-Galdamez did not qualify for asylum consideration because it lacked “particularty” and “social visibility.” Since the BIA raised the issue sua sponte, we have jurisdiction over Valdiviezo-Galdamez’s challenge to the BIA’s requiring “particularity” and “social visibility” as a condition precedent to qualifying for relief from removal. ... [B]ecause the BIA’s requirements that a “particular social group” possess the elements of “social visibility” and “particularity” are inconsistent with prior BIA decisions, those requirements are not entitled to Chevron deference. ... [T]he BIA’s addition of the requirements of “social visibility” and “particularity” to its definition of “particular social group” is inconsistent with its prior decisions, and the BIA has not announced a “principled reason” for its adoption of those inconsistent requirements. Accordingly, we will grant the petition for review and remand to the BIA for further proceedings consistent with this opinion." - Valdiviezo-Gamez v. Atty. Gen., Nov. 8, 2011.  [Hats off to Martin Duffey, Ayodele Gansallo and H. Elizabeth Dallam!]