Benitez Ramos v. Holder (7th Cir. Dec. 15, 2009)
POSNER Rovner Cudahy
The Petitioner is a former member of the Mara Salvatrucha, who sought asylum because he had deserted the gang and become "born again." The BIA denied the claim for asylum and withholding on the basis that the proposed social group did not have social visibility. The 7th Cir reversed.
1. First under the authority of Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009) (contra Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009)), the CtApp rejected the idea that social visibility can be a requirement for an asylum claim - at least, if understood as requiring some externally identifiable criteria.
By this, the Government means * * * that you can be a member of a particular social group only if a complete stranger could identify you as a member if he encountered you in the street, because of your appearance, gait, speech pattern, behavior or other discernible characteristic.
This position has some judicial support, see, e.g., Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009), but we have rejected it in Gatimi and other cases, cited in Gatimi, as a misunderstanding of the use of “external” criteria to identify a social group; see the illuminating discussion in Castellano-Chacon v. INS, 341 F.3d 533, 546-49 (6th Cir. 2003). If society recognizes a set of people having certain common characteristics as a group, this is an indication that being in the set might expose one to special treatment, whether friendly or unfriendly. In our society, for example, redheads are not a group, but veterans are, even though a redhead can be spotted at a glance and a veteran can’t be. “Visibility” in the literal sense in which the Board has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the Board is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference. See, e.g., In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75 (BIA 2007).
2. The CtApp also rejected the argument that former gang members are too "amorphous" to constitute a particular social group - specifically noting that the way that society (or persecutors) treat members of the group may help establish the viability of the social group definition.
There may be categories so ill-defined that they cannot be regarded as groups—the “middle class,” for example. But this problem is taken care of by the external criterion—if a Stalin or a Pol Pot decides to exterminate the bourgeoisie of their country, this makes the bourgeoisie “a particular social group,” which it would not be in a society that didn’t think of middle class people as having distinctive characteristics; it would be odd to describe the American middle class as “a particular social group.” Ramos was a member of a specific, well-recognized, indeed notorious gang, the former members of which do not constitute a “category . . . far too unspecific and amorphous to be called a social group.” It is neither unspecific nor amorphous.
3. Secondly, as to the precise social group (former MS members), the CtApp found that while "gang membership" itself would not be cognizable as a particular social group (because we want people to cease being gang members), former gang membership is immutable.
Being a member of a gang is not a characteristic that a person “cannot change, or should not be required to change,” provided that he can resign without facing persecution for doing so. Arteaga v. Mukasey, supra, 511 F.3d at 945-46.
But if he can’t resign, his situation is the same as that of a former gang member who faces persecution for having quit—the situation Ramos claims to be in. A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group. On this ground we held in Gatimi v. Holder, supra, that a former member of a violent criminal Kenyan faction called the Mungiki was a member of a “particular social group,” namely former members of Mungiki. We relied on Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006), characteristically not cited in this case by either the Board or its lawyer, which holds that former subordinates of the attorney general of Colombia who had information about the insurgents plaguing that nation constituted a particular social group. One could resign from the attorney general’s office but not from a group defined as former employees of the office. See also Koudriachova v. Gonzales, 490 F.3d 255, 262- 63 (2d Cir. 2007) (former KGB agents); Cruz-Navarro v. INS, 232 F.3d 1024, 1028-29 (9th Cir. 2000) (former members of the police or military); Velarde v. INS, 140 F.3d 1305, 1311-13 (9th Cir. 1998) (former bodyguards of the daughters of the president); Chanco v. INS, 82 F.3d 298, 302-03 (9th Cir. 1996) (former military officers); In re Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (former members of the national police).
4. Moreover, the CtApp cited statutory provisions barring individuals from asylum and withholding if they are former persecutors, or committed a serious nonpolitical offense outside the country. It noted that if Benitez Ramos was found to have committed violent acts, he might well be barred from withholding, but the Board can address that on remand. (The Board could also deny asylum in the exercise of its discretion; but withholding is non-discretionary).
5. Finally, in passing, the CtApp disapproved of the IJ's citation to a State Dept letter which was sent to him only, and to which the Petitioner was never given a chance to respond.
N.b.: NIJC attorney Claudia Valenzuela argued the case for Benitez Ramos; his attorneys also included Roy Petty (Arkansas) and Mel Washburn of Sidley Austin.