## Facts

- Nelson Alejandro Benitez Ramos, a native and citizen of El Salvador, joined the Mara Salvatrucha (MS-13) gang as a teenager and later left the gang before coming to the United States.
- In the United States, Ramos became a born-again Christian and asserted he could not rejoin MS-13 without violating his religious beliefs.
- Ramos claimed that if removed to El Salvador, MS-13 would kill him for refusing to rejoin, and that Salvadoran authorities would be unable or unwilling to protect him.
- Ramos did not seek asylum because he missed the one-year filing deadline and instead applied for withholding of removal, which requires a higher showing of likely persecution.
- An Immigration Judge denied withholding, concluding Ramos had not shown persecution “on account of” membership in a cognizable “particular social group.”
- The Board of Immigration Appeals affirmed, rejecting Ramos’s proposed social group based on his former gang membership and refusal to rejoin.

## Issues

1. Whether former membership in a violent street gang can qualify as “membership in a particular social group” for withholding of removal.
2. Whether the BIA erred by rejecting Ramos’s proposed group as categorically outside the statutory meaning of “particular social group.”

## Decision

- The Seventh Circuit granted the petition for review, vacated the BIA’s decision, and remanded.
- The court held that former gang membership can constitute a “particular social group” because the past fact of membership is immutable in the relevant sense.
- The court distinguished current gang membership (which is changeable and not protected) from former gang membership (which cannot be undone).
- The court required the agency to reconsider Ramos’s eligibility using a correct understanding of “particular social group,” without deciding that Ramos was automatically entitled to withholding.

## Legal Principles

- A “particular social group” may be defined by a shared characteristic that members cannot change, or should not be required to change because it is fundamental to identity.
- Current participation in a criminal gang is not an immutable trait and is not the type of “particular social group” contemplated for protection.
- Former membership in an organization may be immutable because it is a historical fact that cannot be erased, even if the applicant has renounced the organization.
- The agency may not categorically exclude a proposed group where the governing standard would treat the defining characteristic (here, former membership) as potentially immutable; individualized nexus and likelihood determinations remain for the agency on remand.

## Conclusion

The Seventh Circuit held that former gang membership may qualify as a “particular social group” for withholding of removal and vacated the BIA’s denial, remanding for further proceedings consistent with that interpretation.


Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009)