Recent Ninth Circuit en banc Decision on Social Groups Cited My Research

The Ninth Circuit Court of Appeals certified the case of an El Salvadorian national who filed a claim for asylum relief based upon her fear of persecution on account of her testifying against gang-members who killed her father. Under asylum law, her claim fell within the nebulous group of membership in a particular social group. The case was rehear en banc with the intention of clarifying how such a claim of membership would be adjudicated, especially since any formulation of a particular social group fearing gang violence, retaliation, of coercion into a gang has been held not to constitute a social group. (See Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008).)[The presented social group of “a young man in El Salvador resisting gang violence unstoppable by the police,” did not have sufficient social visibility and particularity.]

In this case, the asylum seeker fled El Salvador after witnessing the murder of her father at the hands of M-18 street gang. She identified the two men who murdered her father and then testified in open court against them. At the conclusion of her Individual Hearing before the Immigration Judge, the IJ held that she had suffered past persecution and she did have a reasonable fear of future persecution if returned to her native country and that she was a member of a particular social group, "people testifying against or otherwise opposing gang members."

The government appealed the IJ's Oral Decision and the Board of Immigration Appeals reversed the IJ's decision. Henriquez-Rivas en banc review, which was granted.

In the decision, the Ninth Circuit rendered a very narrow opinion that held the BIA misapplied its own precedent in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) in holding that witnesses who testify against gang-members may not constitute a particular social group due to a lack of social visibility.

In the dissent, Chief Justice Kozinski, joined by Justice Bybee, cited my research on what constitutes membership in a particular social group. Defining a Core Zone of Protection in Asylum Law, 10 J.L. & Soc. Challenges 22 (2008) twice on page 11 of the decision.

Here is the full decision:

Henriquez-Rivas v. Holder -