Significant Seventh Circuit Decision Regarding the Definition of "Particular Social Group"

On August 20, 2009 the U.S. Court of Appeals for the Seventh Circuit issued a precedential decision in which it criticized the “social visibility” analysis used by the Board of Immigration Appeals to determine whether a group constitutes a “particular social group” for asylum purposes.  Mr. Gatimi was a man from Kenya who feared persecution from the Mungiki sect because he had defected from the group.  The immigration judge denied Gatimi asylum and the Board affirmed, holding that the particular social group of former Mungiki was not cognizable under the INA because it was not socially visible.  The Seventh Circuit found that the Board’s social visibility analysis could not be squared with Seventh Circuit precedent regarding the particular social group definition, and moreover, that the Board’s analysis “makes no sense; nor has the Board attempted, in this or any other case, to explain the reasoning behind the criterion of social visibility.”  The Court determined that remand under Gonzales v. Thomas, 547 U.S. 183 (1996), was inappropriate because the Board had been inconsistent, rather than silent, regarding social visibility as a criterion for particular social group.  Although the Seventh Circuit stated that it had no quarrel with the rejection of the social groups in several gang-based asylum cases by other Circuit Courts, it noted that those groups would have failed the original social group test from Matter of Acosta.

Although the Gatimi decision contains language regarding gang-based asylum cases that could potentially harm those claims, the Court’s criticism of the Board’s social visibility analysis should provide beneficial language for many of NIJC’s asylum cases.  To read a more thorough analysis of the decision, please see NIJC's Litigation Updates.

Gatimi v. Holder, 2009 WL 2568952 (7th Cir. 2009).