Rocio Henriquez-Rivas v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCIO BRENDA HENRIQUEZ-RIVAS, No. 09-71571 Petitioner, Agency No. v. A098-660-718

ERIC H. HOLDER, JR., Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted En Banc March 20, 2012—San Francisco, California

Filed February 13, 2013

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt, Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, Raymond C. Fisher, Richard A. Paez, Marsha S. Berzon, Jay S. Bybee, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

Opinion by Judge Bea; Concurrence by Judge McKeown; Dissent by Chief Judge Kozinski HENRIQUEZ-RIVAS V . HOLDER

SUMMARY*

Immigration

The en banc court granted a petition for review of the Board of Immigration Appeals’ denial of asylum to a native and citizen of El Salvador who claimed a fear of persecution on account of her membership in a social group as a person who testified in a criminal trial against members of a gang who killed her father.

The court held that in denying…

Opinion by Judge BEA; Concurrence by Judge McKEOWN; Dissent by Chief Judge KOZINSKI.

*1083 OPINION

Rocío Brenda Henriquez-Rivas petitions for review of a decision of the Board of Immigration Appeals (“BIA”) sustaining the government’s appeal of an Immigration Judge’s (“IJ”) grant of asylum, and denying her applications for withholding of removal and protection under the Convention Against Torture. Henriquez-Rivas claims she is entitled to asylum because, as a person who testified in a criminal trial against members of a gang who killed her father in El Salvador, she is a member of a particular social group, on account of which she faces a well-founded fear of persecution if she were to return to El Salvador. For the reasons discussed below, we find that the BIA misapplied its own precedent in holding that witnesses who testify against gang members may not constitute a particular social group due to a lack of social visibility. Accordingly, we grant Henriquez-Rivas’ petition for review and remand to the BIA for further proceedings.

I. Statutory Framework

Under the Immigration and Naturalization Act (“INA”), the Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158…

concurring:

I concur in the result and the opinion, except to the extent the majority counsels that the perception of the persecutor “may matter the most” in analyzing social visibility or claims that the persecutor’s view is “potentially dispositive” of the question. On this point, Chief Judge Kozinski has the better argument. See Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008) (describing “social visibility” as “the extent to which members of a society perceive those with the characteristic in question as members of a social group”) (emphasis added); In re A-M-E-, 241. & N. Dec. 69, 74 (BIA 2007) (noting that the 2002 guidelines of the United Nations High Commissioner for Refugees “endorse an approach in which an important factor is whether the members of the group are ‘perceived as a group by society ’ ”) (emphasis added). Consistent with using society’s perspective as a baseline, training materials for asylum officers — who make the first determination on eligibility for applicants affirmatively seeking asylum — instruct that the social visibility “requirement can be met by showing that members of the group possess a trait or traits that make the members recognizable or…

dissenting:

In summarily reversing us just six years ago, the Supreme Court held that it’s the BIA, not we, who must decide whether a petitioner is a member of a particular social group for purposes of asylum. Gonzales v. Thomas, 547 U.S. 183 , 126 S.Ct. 1613 , 164 L.Ed.2d 358 (2006) (per curiam). The Court quoted approvingly the Solicitor General’s cert petition for the proposition that “a court’s role in an immigration case is typically one of ‘review, not of first view.’ ” Id. at 185 , 126 S.Ct. 1613 (internal *1095 quotation marks omitted). The majority today forgets this admonition and engages in a good deal of first viewing, in clear contravention of Thomas and INS v. Orlando Ventura, 537 U.S. 12, 16-17 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002). Along the way, it deepens a circuit conflict on an issue where national uniformity is vital, and sows uncertainty into our circuit law where previously there was clarity. The far wiser course would be for us to vacate the order taking the case eri banc as improvidently granted and reinstate the three-judge panel’s disposition.

1. Congress has given the Attorney General discretion to grant asylum to certain limited classes of aliens-…