Argued and Submitted, February 10, 2014, San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A200-033-237.
Roger S. Green (argued) and Jenny Tsai, Green & Tsai, San Francisco, California, for Petitioner.
Dawn S. Conrad (argued), Sarah L. Vuong, and Kimberly A. Burdge, Trial Attorneys; Song Park, Senior Litigation Counsel; Tony West and Stuart F. Delery, Assistant Attorneys General; Emily Anne Radford, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.
Before: Stephen Reinhardt and Sidney R. Thomas, Circuit Judges, and William K. Sessions, District Judge.[*]
Oliverto Pirir-Boc (" Pirir-Boc" ) was granted asylum by the Immigration Judge (" IJ" ) based on his well-founded fear of persecution as a member of a particular social group characterized as individuals " taking concrete steps to oppose gang membership and gang authority." The Board of Immigration Appeals (" BIA" ) vacated the grant of asylum on the ground that Pirir-Boc's " purported social group lacks the requisite particularity and social visibility." Pirir-Boc filed a petition for review. After briefing was complete, this court issued the en banc decision, Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (2013) (en banc), holding that " witnesses who testify against gang members" may be cognizable as a particular social group for the purposes of asylum. We then ordered supplemental briefing in this case. Three days before oral argument, the BIA issued two published decisions designed to clarify its interpretation of the phrase " particular social group" : Matter of W-G-R-, 26 I. & N. Dec. 208 (2014), and Matter of M-E-V-G-, 26 I. & N. Dec. 227 (2014). We hold that these two decisions do not affect the validity of Henriquez-Rivas, and we remand Pirir-Boc's petition to the BIA for consideration in light of W-G-R-, M-E-V-G-, and Henriquez-Rivas .
The IJ granted Pirir-Boc asylum after finding his testimony credible. Pirir-Boc is a native and citizen of Guatemala who identifies as Cakchiquel, an indigenous minority ethnic group, and did not learn Spanish until age 10. He was recruited by the Mara Salvatrucha, a violent Central
American gang, but refused to join. His younger brother, however, joined the gang and pledged himself to it for life. Pirir-Boc viewed the Mara Salvatrucha as " criminals who rape women and rob people" and disapproved of his brother's decision to join. Within the hearing of members of the Mara Salvatrucha, Pirir-Boc told his brother that he must leave the gang. Pirir-Boc was eventually able to help his brother defect and move to their grandparents' village, three hours away.
After his brother left the gang, members of the Mara Salvatrucha came looking for Pirir-Boc at his home several times. He sent his wife and small child away and went into hiding in the cliffs. Gang members continued to look for him at all hours, but he evaded them by not returning home. When Mara Salvatrucha members had not come to his house for eight days, Pirir-Boc returned. Ten or eleven gang members caught him and beat him severely, telling him that " [he has] to die." He continues to suffer effects from that beating.
Out of the " fear of losing [his] life" and never being able to " sleep in [his] own house" again, Pirir-Boc fled Guatemala with his younger brother. His wife subsequently informed him that the Mara Salvatrucha ...