Michelle Thomas David George Thomas Tyneal Michelle Thomas Shaldon Waide Thomas v. Alberto R. Gonzales, Attorney General

Michelle, David, Shaldon, and Tyneal Thomas, natives and citizens of South Africa, appeal the decision of the Board of Immigration Appeals (“BIA”), summarily affirming the Immigration Judge’s (“IJ’s”) denial of their application for asylum and withholding of removal.

We review this case en banc to reconcile our intracireuit conflict on the question of whether a family may constitute a “particular social group” for the purposes of 8 U.S.C. § 1101 (a)(42)(A). We hold that family membership may constitute membership in a “particular social group,” and thus confer refugee status on a family member who has been persecuted or who has a well-founded fear of future persecution on account of that familial relationship. We also overrule Estrada-Posadas v. U.S. INS, 924 F.2d 916 (9th Cir.1991), and its progeny, to the extent that they hold that a family may not constitute a “particular social group”; we defer to the BIA’s view of kinship ties as giving rise to social group membership, expressed in In re Acosta, 19 I. & N. Dec. 211 , 1985 WL 56042 (BIA 1985), and elsewhere; and we join the univocal view of our sister circuits that a family may make up a particular social group.

We have…

with whom O’SCANNLAIN, KLEINFELD, and BEA, Circuit Judges, join, concurring in part and dissenting in part:

I part company with the majority’s holding that the Thomas family constitutes a “particular social group” under 8 U.S.C. § 1101 (a)(42)(A), 1 because the issue wheth *1190 er a nuclear family, without more, is a “particular social group” has never been vetted by the Board of Immigration Appeals (BIA).

I agree with the majority that our- law on whether a family can be a “particular social group” for purposes of refugee status is in disarray. I also agree that, having taken the case en banc, we should wipe the slate clean. And I agree that, in light of the BIA’s decision in Matter of Acosta, 19 I. & N. Dec. 211 , 1985 WL 56042 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 , 1987 WL 108943 (BIA 1987), and in the absence of more specific guidance from the BIA, a family should not be foreclosed from being a “particular social group.”

However, I disagree that we should go further than to hold that a family may be a “particular social group.” The BIA has never considered whether a family such as the Thomas family is a “particular social…

409 F.3d 1177 Michelle THOMAS; David George Thomas; Tyneal Michelle Thomas; Shaldon Waide Thomas, Petitioners, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 02-71656. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc December 14, 2004. Filed June 3, 2005. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Errol I. Horwitz and Edward M. Bialack, Law Offices of Errol I. Horwitz, Woodland Hills, California, for the petitioners. Daniel Meron, Principal Deputy Assistant Attorney General, and Anne Murphy, Attorney, Department of Justice, Washington, D.C., for the respondent. Deborah Anker, Nancy Kelly, and John Willshire, Women Refugees Project, Harvard Immigration and Refugee Clinic, Boston, Massachusetts, for the amicus curiae. On Petition for Review of an Order of the Board of Immigration Appeals. Before: SCHROEDER, Chief Judge, REINHARDT, O'SCANNLAIN, RYMER, KLEINFELD, HAWKINS, SILVERMAN, GRABER, WARDLAW, PAEZ, and BEA, Circuit Judges. WARDLAW, Circuit Judge: 1 Michelle, David, Shaldon, and Tyneal Thomas, natives and citizens of South Africa, appeal the decision of the Board of Immigration Appeals ("BIA"), summarily affirming the…