BIA Addresses Asylum Claim Based on Past Status

The Board of Immigration Appeals has affirmed the denial of asylum to a former police officer, finding that the majority of the harm he experienced took place while he was a police officer, and thus, was not related to his status as a “former” officer.

“The respondent has not established that the FARC has any desire to punish or overcome his status as a former police officer, or any animus toward former police officers as a group. The respondent’s feared future harm is based on the physical assault and subsequent threat he received by the FARC when he was a then-serving police officer. The Immigration Judge found, and the respondent admitted, that the FARC targeted him because of his involvement in a law enforcement operation that confiscated military materials and cattle held by the rebel group and compromised their criminal enterprise—official actions that a former police officer would no longer be authorized to conduct.”

“Reprisals against former police officers as a class (for example, after a coup or revolution) may give rise to asylum eligibility. However, the respondent here established only that the FARC harmed him in the past and may harm him in the future to punish him because of official acts he took as a then-current police officer. Harm inflicted on account of specific conduct as a then-current police officer is distinct from harm inflicted on account of membership in a group of former police officers.”

“Where a particular social group is defined by ‘former’ status, Immigration Judges must ensure the persecutor’s conduct was based on a desire to overcome or animus toward the respondent’s membership in a group defined specifically by that former status, not retribution for conduct the respondent engaged in while a current member of the group.“

The full text of Matter of O-A-R-G- can be found here:

https://www.justice.gov/eoir/media/1396826/dl?inline

First Circuit Confirms that Social Distinction does not Require Ocular Visibility

The First Circuit has confirmed that the social distinction requirement for a particular social group does not equate with “ocular visibility.”

The full text of Alvarez Mendoza v. Bondi can be found here:

ttps://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1112P-01A.pdf

Ninth Circuit Reverses Denial of Asylum

The Ninth Circuit has reversed an agency’s denial of asylum, finding that the non-citizen had experienced harm rising to the level of persecution, by actors the government of Mexico was unable to control, on account of her family ties.

“The harms that Meza Diaz and her family suffered— murder, physical assault, kidnapping, a home invasion, and specific, years-long death threats—clearly rise to the level of persecution under our precedents.”

“The report contained the attackers’ statement to Meza Diaz that ‘your time has come’ and that she was going to die. The attackers’ statement that Meza Diaz’s ‘time ha[d] come’ links the home invasion and attack to the numerous death threats Meza Diaz received after her brother’s murder and husband’s kidnapping. Several of those death threats were made by callers who told Meza Diaz that they knew she was Ismar’s sister and that she did not want to meet his fate—namely, being murdered. The police report also notes that Ismar’s murderers were recently released from prison. And the report summarizes Meza Diaz’s family history, including her brother’s murder, her husband’s kidnapping, and the death threats and extortion attempts that Meza Diaz suffered after both events.” “In concluding that Meza Diaz had not presented any evidence of a link between the home invasion and her family history, the agency failed to consider the attackers’ statement or the additional evidence presented in the police report in making its nexus determination.”

“But although Meza Diaz provided the police with significant information regarding who might have a motive to harm her, the police explicitly told her that they could not guarantee her safety and recommended that she flee the country. Meza Diaz presented compelling evidence indicating that the police were either unable or unwilling to control her persecutors.” “The explicit admission by the police that they could not ensure Meza Diaz’s safety must be given substantial weight because the question on this step is whether the government both ‘could and would provide protection.”

The full text of Meza Diaz v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/08/23-973.pdf

An amended opinion, which does not evaluate whether the past harm rose to the level of persecution, can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/25/23-973.pdf

Ninth Circuit Rejects Mental Health-Based Asylum Claim

The Ninth Circuit has determined that “Mexicans with mental health disorders characterized by psychotic features who exhibit erratic behavior” is not a cognizable particular social group for asylum purposes.

The full text of Uribe v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-1244.pdf

First Circuit Addresses Family-Based Social Group Claim

The First Circuit has remanded an asylum application, noting that there is was no other basis in the record for the persecution alleged than family ties. “The fact that the cattle thieves were motivated in targeting Pineda-Maldonado in part to protect themselves, because they feared Pineda-Maldonado would retaliate against them, is not disputed by the parties. Butt hat fact does not in and of itself suffice to end the inquiry into whether family status was ‘a central reason’ for their having targeted him, any more than the fact that the cattle thieves sought money in targeting Pineda-Maldonado due to his father's debt could end such an inquiry.”

The full text of Pineda-Maldonado v. Garland can be found here: http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

First Circuit Rejects Agency Circularity Analysis

The First Circuit has rejected the agency’s determination that an asylum applicant’s proposed social group was impermissibly circular simply because it referenced harm in its definition. “If an applicant's proffered social group, examined without consideration of the potentially circular language, shares independent socially distinctive characteristics, then neither the IJ nor the BIA may reject the group as legally invalid without further substantive analysis.”

The full text of Espinoza-Ochoa v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

BIA Narrows Relief for Family-Based Particular Social Groups

The Board of Immigration Appeals has again narrowed the circumstances in which an asylum applicant can establish the requisite nexus between persecution and the particular social group comprised of the applicant’s family. “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm. The question asked under the Fourth Circuit’s approach—why an applicant, and not others, is targeted—is relevant in evaluating the reasons for harm, but it is not the end of the analysis. When a persecutor targets multiple members of a single family, their family membership may be a reason for harming them, especially when non-family members are not similarly targeted. However, the fact that family membership is a reason for harm does not mean that it is necessarily one central reason. If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Likewise, when a persecutor’s threats to harm family members are contingent on one or more of the family members acting or failing to act in a certain way—such as failing to comply with demands for money or other property—family membership is unlikely to be one central reason for that harm and instead will be merely a means to another end.”

The full text of Matter of M-R-M-S- can be found here:

https://www.justice.gov/d9/2023-12/4068.pdf

Eighth Circuit Rejects "Guatemalan Children who are Witnesses to Gang Crime” as a PSG

The Eighth Circuit has rejected "Guatemalan children who are witnesses to gang crime” as a particular social group for asylum purposes. “The BIA rejected this proposed social group for lack of particularity because the term ‘children’ is ‘vague and amorphous.’ Indeed, ‘children’ could mean minor children of Guatemalan nationals, or it could mean individuals of any age who were born of Guatemalan parents. If Pacheco-Mota intended the former definition, he does not fall within its scope—he was eighteen at the time of his first hearing before the IJ. If Pacheco-Mota intended the latter definition—any person of any age who is the child of Guatemalan parents—it is far too amorphous and overbroad to satisfy the particularity requirement. Pacheco-Mota’s proposed social group also fails for lack of social distinction. If we grant Pacheco-Mota the benefit of the broader definition of ‘children,’ the proposed social group is, in effect, all Guatemalan ‘witnesses to gang crime.’ Pacheco-Mota did not introduce evidence establishing that Guatemalan society ‘in general perceives, considers, or recognizes persons sharing the particular characteristic’ of gang crime witnesses as a distinct group.”

The full text of Pachecho-Mota v. Garland can be found here: http://media.ca8.uscourts.gov/opndir/23/10/223651P.pdf

Ninth Circuit Clarifies Standard for Family-Based PSG Nexus

The Ninth Circuit has clarified that a petitioner does not need to show that his relatives experienced persecution on the basis of their family membership in order to show that he himself might experience persecution as their relative. In this case, the petitioner expressed fear of persecution because of his family ties to members of an Autodefensora group, and the Immigration Judge found that the uncles who were members of the group had experienced persecution because of the membership in the group, not because of their family ties. The Ninth Circuit found that reasoning unpersuasive. “Thus, even assuming all of Blancas Hermosillo’s uncles were harmed only because of their Autodefensa memberships and not their familial relationships, that does not foreclose the possibility that Blancas Hermosillo will experience persecution as a relative of the Autodefensa leader and other members.”

The full text of Hermosillo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/14/18-71220.pdf

Fifth Circuit Finds "Business Owners" are not Valid PSG

The Fifth Circuit has determined that “business owners” are not a valid particular social group because they lack an immutable characteristic.

The full text of Munoz-De Zelaya v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60505-CV0.pdf

Fifth Circuit Finds Asylum Applicant Must Demonstrate Social Distinctiveness of her Nuclear Family

The Fifth Circuit has determined that an asylum applicant has the obligation to provide some evidence of the social distinction of her nuclear family in her society when relying on that family as a particular social group for asylum purposes. The Court was also critical of the Biden Administration’s failure to promulgate proposed regulations on family-based particular social groups.

The full text of Garcia-Gonzalez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60501-CV0.pdf

Fourth Circuit Remands Family-Based PSG Withholding Claim

The Fourth Circuit re-affirmed its strong family-based particular social group case law, finding that “young male family members of [the applicant’s] cousin Emily” is a cognizable social group.

The full text of Santos Garcia v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

Fourth Circuit Sustains Appeal of Asylum Applicant Fearing "Revenge Killing"

The Fourth Circuit has sustained the appeal of an asylum applicant who fears he would be the victim of a revenge killing by gang members because his brother refused to cooperate with the gang.

The full text of Marvin A.G. v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

Eighth Circuit Rejects PSG of Witnesses who Cooperate with Law Enforcement

The Eighth Circuit has rejected the proposed particular social group comprised of “witnesses who cooperate with law enforcement,” finding no evidence that Guatemalan society recognizes these witnesses as a socially distinct group.

The full decision in Oxlaj v. Garland can be found here:

http://media.ca8.uscourts.gov/opndir/23/05/221734P.pdf

Sixth Circuit finds that "Honduran Rural Landownership" is Immutable Characteristic, Single Mothers Living Without Male Protection are Socially Distinct,

The Sixth Circuit has issued a decision with a number of favorable findings related to particular social groups in the context of gang persecution in Honduras. First, they found that “Honduran land ownership” is a characteristic so fundamental to the identities of the group members that it is immutable. Second, they found that “single mothers living without male protection” are socially distinct, citing a statement by a deputy commander in the Honduran police that such women are particularly vulnerable within society.

The full text of Turcios-Flores v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0094p-06.pdf

Ninth Circuit Remands for Agency to Determine if Imputed Sexual Orientation Qualifies as a PSG

The Ninth Circuit has remanded an asylum claim for the agency to address if women perceived to be lesbians qualify as a particular social group, noting that neither the Board of Immigration Appeals nor the Ninth Circuit have addressed imputed sexual orientation as a particular social group in a precedential decision.

The full text of Antonio v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/26/21-70624.pdf

Eighth Circuit Rejects Proposed PSG of "Witnesses who Cooperate with Law Enforcement”

The Eighth Circuit has rejected the proposed particular social group of “witnesses who cooperate with law enforcement,” finding that it lacks the required social distinction.

The full text of Lemus-Coronado v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/23/01/221015P.pdf

Fourth Circuit Rejects Gender- and Crime Witness-Based PSG

The Fourth Circuit has rejected the particular social group comprised of “Salvadorean women who are witnesses to gang criminal activity and targeted because they filed a police report.”

The full text of Morales v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/201305.P.pdf

Fourth Circuit Finds Asylum Seeker was Persecuted because of Land Ownership and not Family Ties

The Fourth Circuit has determined that an asylum seekers was persecuted because gang members believed she was the heir to her late common law spouse’s land, and not because of her family ties to him.

The full text of Madrid-Montoya v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/202072.P.pdf

First Circuit Remands for Further Consideration of Imputed Gang Members as a PSG

The First Circuit has remanded a withholding case for further consideration of whether imputed membership in a gang can establish membership in a particular social group (PSG). The court noted that the policy reasons for rejecting former gang members as a PSG (namely, not rewarding former gang members for bad behavior) are not present when the gang membership is only imputed.

The full text of Chavez v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1267P-01A.pdf