In Granados Gaitan v. Holder, NIJC filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit in support of Mr. Gaitan’s petition for rehearing. Mr. Gaitan is an asylum seeker from El Salvador. In El Salvador, MS-13 members attempted to recruit him, and threatened him and his family after he refused to join the gang. He fled to the United States in April 2002 when he was approximately 14 years old, and was placed in removal proceedings five years later. Mr. Gaitan was denied asylum, withholding, and CAT relief before the IJ and BIA. The Eighth Circuit then rejected Mr. Gaitan’s argument that young males recruited by MS-13, and who have resisted membership, constitute a particular social group.
NIJC argued that the BIA’s revised rule for establishing membership in a particular social group, as set forth in Matter of S-E-G-, ignores the principle of ejusdem generis, upon which the BIA’s earlier decision, Matter of Acosta, relied. Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008). Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). NIJC additionally argued that “particularity” and “social visibility” runs counter to the text and principle of the asylum statute. 8 U.S.C. § 1158. Lastly, NIJC argued that because the BIA has never reconciled its “immutability” test, Matter of Acosta, with its new “social visibility” and “particularity” test, Matter of S-E-G-, the agency is not entitled to Chevron deference. Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
On June 7, 2012, the court denied the the petition for rehearing. NIJC was represented by Claudia Valenzuela.