## Facts

- Rocio Brenda Henriquez–Rivas, a citizen of El Salvador, testified in open court against gang members who murdered her father.
- She fled to the United States and sought asylum, withholding of removal, and CAT relief, alleging a well-founded fear of gang retaliation because of her testimony.
- The Immigration Judge found her credible and granted asylum, concluding that individuals who testify against gang members in court can constitute a “particular social group.”
- The Board of Immigration Appeals reversed and denied relief, reasoning that the proposed group lacked “social visibility” (and related “particularity”) because it was not sufficiently recognized as a group in Salvadoran society.

## Issues

1. Whether the BIA misapplied its own “particular social group” precedents by treating “social visibility” as on-sight identifiability rather than social recognition.
2. Whether individuals who testify in open court against gang members in El Salvador can qualify as a cognizable “particular social group” under the INA, considering “social visibility” and “particularity.”
3. Whether the BIA’s conclusion that the proposed group was not cognizable was supported by substantial evidence on this record.

## Decision

- The Ninth Circuit (en banc) granted the petition for review and remanded to the BIA.
- The court held the BIA misapplied its own precedent in evaluating “social visibility” and did not support its conclusion with substantial evidence.
- The court rejected an approach that equates “social visibility” with literal, on-sight visibility and directed the agency to apply the correct standard on remand.
- The court indicated that a group defined as individuals who have testified in open court against gang members may satisfy “social visibility” and “particularity,” depending on record evidence.

## Legal Principles

- To qualify for asylum as a “refugee,” an applicant must show past persecution or a well-founded fear of persecution on account of a protected ground, and that the persecution is by the government or actors the government is unable or unwilling to control.
- For “membership in a particular social group,” the BIA’s “social visibility” inquiry concerns social recognition or distinction within the relevant society, not whether members are identifiable on sight.
- A public act such as testifying in open court can support social recognition of a group as distinct.
- “Particularity” requires a group to have discrete, definable boundaries; a group limited to persons who testified in open court against gang members can be sufficiently specific.
- Courts defer to the agency’s reasonable interpretations, but do not defer to a misapplication of agency precedent or findings unsupported by substantial evidence.

## Conclusion

The en banc Ninth Circuit set aside the BIA’s denial of asylum-related relief because the agency misapplied its own “social visibility” framework and lacked substantial-evidence support, and it remanded for reconsideration under a standard focused on societal recognition and a properly defined, discrete group of public witnesses.


Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc)