Tumaini Temu v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1192

TUMAINI GEOFREY TEMU,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued: October 29, 2013 Decided: January 16, 2014

Before KING, GREGORY, and AGEE, Circuit Judges.

Petition for review granted, order vacated, and case remanded
for further consideration consistent with this published
opinion. Judge Gregory wrote the majority opinion, in which
Judge King joined. Judge Agee wrote a dissenting opinion.

ARGUED: Katie Bukrinsky, Thomas Joseph Tynan, MCDERMOTT, WILL &
EMERY, LLP, Washington, D.C., for Petitioner. Woei-Tyng Daniel
Shieh, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Paul M. Thompson, Steven Hannes,
MCDERMOTT, WILL & EMERY LLP, Washington, D.C.; Stephen Dekovich,
CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, Washington, D.C., for
Petitioner. Stuart F. Delery, Acting Assistant Attorney
General, Civil Division, Francis W. Fraser, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Circuit Judge:

Tumaini Temu is a Tanzanian national who suffers from

severe bipolar disorder. In his home country, Mr. Temu was

tortured by nurses and prison guards because of his illness.

After entering the United States, he applied for asylum, arguing

that he was persecuted because of his membership in a particular

social group. The Board of Immigration Appeals (“BIA”) denied

his application, finding that Mr. Temu was not a member of a

social group under the Immigration and Nationality Act (“INA”),

and even if he was, Mr. Temu did not show that he was persecuted

because of membership in this group. Because we agree with

Mr. Temu that the BIA’s opinion rests on factual and legal

errors, we grant Mr. Temu’s petition for review, vacate the

BIA’s order, and remand for further proceedings consistent with

this opinion.

I.

The facts presented below are based on Mr. Temu’s

testimony, as well as testimony from two expert witnesses who

discussed Mr. Temu’s diagnosis and the conditions that

individuals with mental illness face in Tanzania. The IJ

credited the testimony of all three witnesses, and neither the

BIA nor the government dispute any of the facts presented.

2
 Mr. Temu’s troubles began during his final year at the

University of Dar es Salaam, when his mother died in a car

accident. This spurred a mental breakdown that forced Mr. Temu

to leave school, and he experienced a series of similar episodes

that were later diagnosed as manifestations of bipolar disorder.

During his manic episodes, Mr. Temu believes he has superhuman

powers. He is visibly erratic and often walks into busy

intersections to direct traffic because he thinks he has the

ability to prevent car accidents. This behavior caught the

attention of Tanzanian officials who took him to Muhimbili

Hospital in Dar es Salaam, Tanzania, in 2003.

Mr. Temu’s admission to Muhimbili Hospital kicked off years

in asylums and prisons during which Mr. Temu suffered violent

physical abuse. At his asylum hearing, an expert witness

testified that Tanzanians consider mental illness to be

shameful. In Tanzanian culture, severe mental illness with

visibly erratic behavior is seen as a manifestation of demonic

possession. Tanzanians even have a label for the group,

referring to those with visibly severe mental illness as “mwenda

wazimu,” which means demon-possessed. The expert witness

testified that even medical professionals in Tanzania believe

that severe mental illness accompanied by erratic behavior is

caused by demonic possession. Laymen and doctors alike believe

that demonic possession is contagious. For this reason, even

3
though friends and family visited Mr. Temu during his first

hospitalization, they deserted him within months.

The nurses at Muhimbili Hospital treated Mr. Temu with

violence and abuse. Nurses tied Mr. Temu’s hands and feet for

five to seven hours a day, four days per week. When Mr. Temu’s

condition worsened, his “treatment” became more inhumane, as he

was bound and beaten with leather straps for eight hours per

day, five or six days per week. Hospital stints turned into

prison stints, and the abuse continued. Prison guards beat

Mr. Temu with a club about his elbows and feet four days per

week. The beatings were so severe that he could not walk.

The record is unequivocal about what motivated the nurses’

and guards’ behavior. Throughout all his hospitalizations, the

nurses referred to Mr. Temu as “mwenda wazimu.” The record also

shows that while binding Mr. Temu and beating him with leather

straps, the nurses said on multiple occasions, “this is how we

treat people who are mentally ill like you.” J.A. 135. In

prison, the guards also referred to Mr. Temu as “mwenda wazimu.”

All prisoners were beaten, but Mr. Temu received worse beatings.

However, other prisoners who also suffered from severe mental

illness were beaten as much as Mr. Temu.

Upon coming to the United States, Mr. Temu applied for

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). 8 U.S.C. §§ 1158(b)(1)(A),

4
1231(b)(3)(A); 8 C.F.R. § 208.16. Mr. Temu argued that under 8

U.S.C. § 1101(a)(42), he faced severe persecution because of his

membership in the social group of individuals with bipolar

disorder who exhibit erratic behavior. The immigration judge

(“IJ”) denied Mr. Temu’s asylum and withholding claims. In a

finding adopted by the BIA, the IJ concluded that Mr. Temu’s

proposed group lacks the elements of immutability, particularity

and social visibility necessary to qualify as a particular

social group under the INA. In addition, both the IJ and BIA

concluded that even accepting Mr. Temu’s proposed group, he did

not show that he was persecuted because of his membership in

this group. However, the IJ granted Mr. Temu CAT relief. In

doing so, the IJ and BIA found that Mr. Temu was tortured by

nurses and prison guards because he was mentally ill.

Mr. Temu filed a timely appeal of the BIA’s decision,

arguing that it committed error in denying him asylum and

withholding of removal. We have jurisdiction to hear his case

under 8 U.S.C. § 1252.

II.

Individuals qualify for asylum if they were persecuted “on

account of . . . membership in a particular social group.”

5
8 U.S.C. § 1101(a)(42)(A). 1 This appeal raises two questions.

First, we must analyze whether Mr. Temu’s proposed group of

“individuals with bipolar disorder who exhibit erratic behavior”

qualifies as a “particular social group.” Second, we ask

whether Mr. Temu was persecuted because of membership in his

proposed group. Under Chevron, we give deference to the BIA’s

interpretation of the phrase “particular social group.” See

Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010) (citing

Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984)).

However, in reviewing whether a group meets the BIA’s definition

of “particular social group,” we overturn a denial of asylum if

it is “manifestly contrary to the law and an abuse of

discretion.” 8 U.S.C. § 1252(b)(4)(D); see Zelaya v. Holder,

668 F.3d 159, 165 (4th Cir. 2012); Crespin-Valladares v. Holder,

632 F.3d 117, 124–126 (4th Cir. 2011). We uphold factual

findings unless no rational factfinder could agree with the

BIA’s position. Crespin-Valladares, 632 F.3d at 124.

1
Because Mr. Temu was granted CAT relief, his right to
remain in the United States is not in dispute. However, by
granting Mr. Temu CAT relief but not asylum, the BIA placed him
“in an unusual legal status.” Zuh v. Mukasey, 547 F.3d 504, 508
(4th Cir. 2008). Without asylum, Mr. Temu is not allowed to
become a lawful permanent resident, nor is he allowed to work
without yearly authorization. Id. For these reasons, we have
expressed hesitation in placing immigrants in this “unusual
legal status,” which essentially amounts to immigration limbo.
Id.

6
 III.

We first consider the BIA’s conclusion that Mr. Temu was

not persecuted because of membership in his proposed group.

Because this is a factual finding, our task is not to decide how

we would rule in the first instance. Rather, we must uphold the

BIA’s finding unless no rational factfinder could reach the same

conclusion. See Crespin-Valladares, 632 F.3d at 124. In spite

of this stringent standard of review, we are compelled to vacate

because the BIA’s finding on nexus contains two logical

contradictions that no rational factfinder could hold.

First, it is impossible to square the BIA’s conclusion with

the undisputed facts of the case. The BIA credited Mr. Temu’s

testimony in its entirety, J.A. 151, and he testified not only

that nurses beat and bound him, but also that they explicitly

told him that “[t]his is how we treat people who are mentally

ill like you.” J.A. 135. Mr. Temu testified that in prison,

the guards beat all prisoners, but Mr. Temu was singled out for

worse beatings, and other prisoners with mental illness were

beaten as much as Mr. Temu. J.A. 137. Throughout his time in

prisons and hospitals, the nurses and guards referred to him as

“mwenda wazimu.” J.A. 135–37. We fail to see how a rational

factfinder could simultaneously credit these facts and also

conclude that Mr. Temu was not persecuted because of his mental

illness and its manifestations. It is difficult to imagine

7
evidence that is more persuasive and unequivocal than a

persecutor directly telling a victim, “[t]his is how we treat

mentally ill people like you.” J.A. 135.

Second, the BIA’s nexus finding and CAT finding are at

logical loggerheads. The BIA adopted the IJ’s finding that

“there is no nexus between the respondent’s mistreatment and his

defined particular social group, which is defined in part by

bipolar disorder.” J.A. 74. That is, even accepting Mr. Temu’s

proposed group, the BIA concluded that his beatings were due to

his erratic behavior, not his bipolar disorder per se. Mere

pages later, however, the IJ granted CAT relief, finding that

Mr. Temu “was singled out for more frequent beatings because he

was mentally ill.” J.A. 156. 2 We struggle to see how a rational

factfinder could conclude both that Mr. Temu was not persecuted

because of his membership in the group of individuals with

bipolar disorder who exhibit erratic behavior, and also that he

was singled out for beatings because of his mental illness. It

might be possible to reconcile these conflicting findings, but

2
We note that this finding was unnecessary to a grant of
CAT relief, which only requires that an individual establish
that “it is more likely than not” that he would be tortured in
his home country. 8 C.F.R. § 208.16(c)(2). The BIA found that
Mr. Temu is likely to be tortured upon return to Tanzania, and
then it went out of its way to find that this torture would
occur because of his mental illness. Thus, a grant of CAT
relief and a denial of asylum need not contradict one another,
but in this case, the BIA ensured that they did.

8
it would demand logical acrobatics, and the BIA makes no attempt

to explain how it can believe that Mr. Temu was not persecuted

because of his bipolar disorder but was tortured because he was

mentally ill.

We are mindful that reviewing courts should not substitute

their own judgment for the BIA’s in areas where the BIA is

entrusted with the power to adjudicate claims in the first

instance. See Zuh, 547 F.3d at 504. This is not a case of a

mere difference in judgment. When the very core of an opinion

is internally contradictory and advances diametrically opposed

conclusions within paragraphs, this is the very essence of

irrationality. Because the BIA’s nexus finding collapses under

the weight of its logical defects, we are compelled to vacate

the BIA’s finding.

IV.

We next consider the BIA’s conclusion that Mr. Temu’s

proposed group does not qualify as a “particular social group”

under 8 U.S.C. § 1101(a)(42)(A). Through its case law, the BIA

has formulated a three-part test for what constitutes a

“particular social group.” See In re S-E-G-, 24 I & N Dec. 579

(BIA July 30, 2008). First, individuals in the group must

“share a common, immutable characteristic . . . that members of

the group either cannot change, or should not be required to

9
change.” Id. at 582–83 (internal citation and quotation

omitted). In addition, the group must have social visibility,

which means “the group should generally be recognizable by

others in the community.” Id. at 586. Finally, the group must

be defined with particularity, which means the group must have

concrete, identifiable boundaries that allow an observer to

distinguish members of a group from non-members. Id. at 584.

We must uphold the BIA’s conclusion that Mr. Temu’s group

does not qualify as a particular social group unless it is

“manifestly contrary to the law and an abuse of discretion.”

Zelaya, 668 F.3d at 165. Because the BIA’s opinion rests on

legal error, we must reverse. It is unclear from the BIA’s

opinion whether it misapplied its own standard or applied a new

standard without explanation, but in either case, the BIA’s

legal analysis is manifestly contrary to the law. Further, the

BIA’s opinion rests on factual error.

A.

We first consider the BIA’s social visibility analysis.

Social visibility does not mean ocular visibility: a group can

qualify as a social group even if one cannot identify members of

the group by sight. See, e.g., Henriquez-Rivas v. Holder, 707

F.3d 1081, 1087–88 (9th Cir. 2013); Rivera-Barrientos v. Holder,

666 F.3d 641, 652 (10th Cir. 2012). Rather, social visibility

speaks to whether a group is in fact recognized as a group. See

10
In re C-A-, 23 I. & N. Dec. 951, 959 (BIA 2006) (defining social

visibility as whether a group is “understood by others to

constitute” a social group). For example, in the United States,

“Vietnam veterans, . . . cancer survivors, blind people, Cajuns,

practitioners of Falun Gong and hippies” would likely be

identified as social groups, whereas “second-born children and

haters of broccoli” would not. Henriquez-Rivas, 707 F.3d at

1096–97 (Kozinski, J., dissenting). Thus, many groups have

qualified as socially visible under BIA case law, even though

their members are not visibly identifiable. See In re C-A-, 23

I. & N. Dec. at 959 (citing groups defined by kinship ties,

prior employment, and genital mutilation).

Mr. Temu’s group appears to have a strong case for social

visibility, but the BIA never applied a permissible legal

standard. The BIA found that while “Tanzanian society

unquestionably targets individuals who exhibit erratic behavior

for serious forms of mistreatment,” this mistreatment is not

“limited to those who have a diagnosis of bipolar disorder.”

J.A. 153. For example, the IJ noted that a visibly intoxicated

person might exhibit erratic behavior and get targeted for

mistreatment. Id. On its face, it might appear that the IJ’s

opinion conflates the nexus requirement with social visibility,

but in fact, the IJ’s argument is much more subtle. The IJ’s

argument is that a lack of nexus is evidence of a lack of social

11
visibility. Thus, if persecutors torture a wide swath of

victims indiscriminately, this not only suggests a lack of

nexus, but it also suggests that the persecutors did not even

consider any one victim’s particular social group. This, in

turn, suggests a lack of social visibility. In sum, because the

persecutors used erratic behavior as an overbroad proxy for

identifying victims, the persecutors did not view Mr. Temu’s

proposed group as a group in the first place.

This conclusion does not show that Mr. Temu’s group lacks

social visibility: it shows that Mr. Temu’s group lacks 20/20

visibility. The record is clear that Tanzanians view those with

severe, chronic mental illness who exhibit erratic behavior as a

group, since these individuals are singled out for abuse in

hospitals and prisons and are specifically labeled “mwenda

wazimu.” J.A. 137, 145. The nurses in this case explicitly

said that “this is how we treat people who are mentally ill like

you.” J.A. 135 (emphasis added). The fact that Tanzanians are

overbroad in assigning this label to individuals does not show

that social visibility is lacking. Though the persecution can

be poorly aimed in theory, Tanzanians still appear to view the

“mwenda wazimu” as a group, and that is all that social

visibility requires. See Henriquez-Rivas, 707 F.3d at 1089.

Another formulation of the social visibility test lends

further support to this point. Circuit courts and the BIA have

12
argued that a group is socially visible if it can show that it

is singled out for worse treatment than other groups. For

example, the BIA rejected a group of non-criminal informants as

lacking social visibility because “informants are not in a

substantially different situation from anyone who has crossed

[the persecutors] or who is perceived to be a threat to the

[persecutors’] interests.” In re C-A-, 23 I. & N. Dec. at 960–

61; see also In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 75 (BIA

2007); Ramos-Lopez v. Holder, 563 F.3d 855, 861 (9th Cir. 2009).

In this case, Mr. Temu meets that test easily. The undisputed

facts show that even though all prisoners were abused, Mr. Temu

was singled out for worse abuse, with the exception of other

prisoners with mental illness, who received the same increased

abuse as Mr. Temu.

This formulation of social visibility also illustrates the

BIA’s legal misstep. Evidence that persecutors target an entire

population indiscriminately can be evidence of no social

visibility. Id. In that situation, the fact that members of a

particular social group get caught in the same net is

irrelevant. The BIA extended this reasoning to conclude that

any time a persecutor’s net is too large, social visibility must

be lacking. The folly of this legal conclusion can be

demonstrated with a hypothetical. Imagine that an anti-Semitic

government decides to massacre any Jewish citizens. Now,

13
imagine that in putting its policy into practice, the government

collects a list of surnames of individuals who are known to be

Jewish and then kills anyone with the same surname. Jews and

Gentiles alike might be murdered, but this does not change the

fact that Jews have social visibility as a group. Meanwhile,

under the BIA’s reasoning, the fact that persecutors might lump

non-group members with group members is, by itself, enough

evidence to find a lack of social visibility.

Similarly, an analogy to a group that qualifies as a

particular social group is helpful in illustrating why the BIA’s

analysis in this case is impermissible. There is no doubt under

BIA or federal case law that kinship ties can serve as the basis

for a particular social group. The BIA has identified “kinship

ties” as a paradigmatic example of a particular social group.

See Crespin-Valladares, 632 F.3d at 124–25 (citing In re C-A-,

23 I. & N. at 959; In re H-, 21 I. & N. Dec. 337, 342 (BIA

1996)). This Court and “every circuit court to have considered

the question” have reached the same conclusion. Crespin-

Valladares, 632 F.3d at 125 (collecting case law). Yet, under

the BIA’s reasoning in this case, if persecutors were using a

distinctive family trait like curly red hair to identify and

persecute individuals, then family ties would not qualify as a

particular social group, since persecution would not be “limited

to those” who are in the group. J.A. 153. These examples

14
illustrate why the BIA’s application of its social visibility

test is legally erroneous in this case. Requiring what amounts

to 20/20 visibility, rather than social visibility, would lead

to absurd conclusions that flout the case law of this Court,

other circuit courts, and the BIA itself.

There is no mechanical way to separate “haters of broccoli”

from “Vietnam veterans,” Henriquez-Rivas, 707 F.3d at 1096–97,

but one highly relevant factor is if the applicant’s group is

singled out for greater persecution than the population as a

whole. In re C-A-, 23 I. & N. Dec. at 960–61. Similarly,

evidence that a proposed group has a specific label in a society

is highly relevant. A group cannot be defined solely by the

fact of its persecution, Gatimi v. Holder, 578 F.3d 611, 616

(7th Cir. 2009), so evidence that members of a society have a

label for a proposed group helps suggest that the group has a

common thread outside of its victimhood, assuming of course that

the label is not something like “persecution victims.” In sum,

we vacate the BIA’s social visibility finding because it rests

on legal error.

B.

The BIA also commits legal error in concluding that

Mr. Temu’s group lacks particularity. Specifically, the BIA

erred because it broke down Mr. Temu’s proposed group into

pieces and rejected each piece, rather than analyzing his group

15
as a whole. Once again, the BIA applied an impermissible legal

standard because it rejected groups that Mr. Temu never

proposed.

A social group must have identifiable boundaries to meet

the BIA’s particularity element. For example, the group

“affluent Guatemalans” fails because the group changes

dramatically based on who defines it. See In re A-M-E-, 24 I. &

N. Dec. at 76. Affluent might include the wealthiest 1% of

Guatemalans, or it might include the wealthiest 20%. Therefore,

this group lacks boundaries that are fixed enough to qualify as

a particular social group.

In this case, the BIA found no particularity because

bipolar disorder is too broad and erratic behavior is too fuzzy.

First, bipolar disorder covers a wide range of severity. At its

least severe, the disorder can be so mild as to be outwardly

undetectable. Therefore, the disorder covers too broad a

spectrum of behavior to have identifiable boundaries. The other

component of Mr. Temu’s proposed group is erratic behavior, but

this, too, lacks particularity. The definition of erratic

behavior changes based on who defines it, and it is difficult to

put precise, identifiable boundaries on what constitutes erratic

behavior. Because each part of Mr. Temu’s proposed group lacks

particularity, the BIA concluded that the group as a whole

fails.

16
 The BIA’s opinion commits legal error by splitting

Mr. Temu’s group in two and rejecting each part, rather than

considering it as a whole. See Crespin-Valladares, 632 F.3d at

125. The BIA is correct that the label of mental illness can

cover a broad range of severity. On its own, it is possible—

though we do not decide—that the group of individuals with

bipolar disorder lacks particularity because of its breadth, but

that is not Mr. Temu’s proposed group. Rather, Mr. Temu limits

his group to those individuals with bipolar disorder who exhibit

outwardly erratic behavior. It may well be that mental illness

lacks particular boundaries, since the label covers a huge swath

of illness that ranges from life-ending to innocuous.

Mr. Temu’s group does not suffer from the same shortcoming,

because it is limited to a specific mental illness so severe

that individuals are visibly, identifiably disturbed.

Similarly, the BIA rejects erratic behavior as lacking

particularity. Erratic behavior is difficult to define and

subjective. We doubt that “individuals who exhibit erratic

behavior” would qualify as a particular social group, but again,

Mr. Temu proposed no such group. Rather, Mr. Temu’s group is

limited to individuals who exhibit erratic behavior and suffer

from bipolar disorder. Unlike “erratic behavior,” the term

bipolar disorder has well-defined, identifiable characteristics.

See generally American Psychiatric Association, Diagnostic and

17
Statistical Manual of Mental Disorders (5th Ed., 2013); World

Health Organization, International Statistical Classification of

Diseases and Related Health Problems V(F30)–(F39) (10th ed.,

2010). The BIA faulted Mr. Temu’s group because it lacks an

“adequate benchmark,” J.A. 4, but that is precisely what the

DSM-V supplies with regard to the other component of Mr. Temu’s

group. J.A. 4. Thus, erratic behavior has unclear boundaries

that the other component of Mr. Temu’s group supplies. In turn,

bipolar disorder covers a broad spectrum of behavior that is

sharply limited by the requirement of erratic behavior.

In essence, the BIA committed legal error because it missed

the forest for the trees. While each component of Mr. Temu’s

group might not satisfy the particularity requirement

individually, the BIA must consider Mr. Temu’s definition as a

whole. See Crespin-Valladares, 632 F.3d at 125 (“[The BIA’s

legal error] flowed from the fact that, as the Government

concedes, the BIA’s removal order rejected a group different

from that which the [applicants] proposed”). For example, we

have recently found that the “group consisting of family members

of those who actively oppose gangs in El Salvador by agreeing to

be prosecutorial witnesses” qualifies as a particular social

group. Id. at 120–121, 125–26. Each component of the group in

Crespin-Valladares might not have particular boundaries.

“Prosecutorial witnesses” might reach too broad a swath of

18
individuals; “those who actively oppose gangs” might be too

fuzzy a label for a group. Our case law is clear, however, that

the group as a whole qualifies. In this case, the BIA took

issue with the component parts of Mr. Temu’s group, but it never

reached the stage of assessing the particularity of Mr. Temu’s

group as a whole. Instead, it considered and rejected two

different groups that were based on pieces of Mr. Temu’s group.

Thus, the BIA’s particularity analysis was based on legal

error. The INA requires that an individual be persecuted

because of membership in a “particular social group.” 8 U.S.C.

§ 1101(a)(42). Nothing in the statute requires that if a group

is defined by a collection of traits, that each individual trait

must meet all the criteria for a “particular social group.”

Time and again, case law from this Court, other circuits, and

the BIA has accepted social groups that, as part of their

definitions, contain components that might not meet the BIA’s

legal standards. See Crespin-Valladares, 632 F.3d at 120–21

(accepting the group of “family members of those who actively

oppose gangs in El Salvador by agreeing to be prosecutorial

witnesses”); Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672

(7th Cir. 2005) (accepting the group of “educated, landowning

class of cattle farmers”); In re C-A-, 23 I. & N. at 960 (citing

favorably the group of “young women of a particular tribe who

were opposed to female genital mutilation” as a particular

19
social group) (citing In re Kasinga, 21 I. & N. Dec. 357, 365–66

(BIA 1996)). Notably, the BIA itself has accepted individuals

with bipolar disorder as a particular social group in the past,

albeit in cases that, like this one, were unpublished. In re

Daniel Francisco Lopez-Sanchez, 2010 Immig. Rptr. LEXIS 7882

(BIA 2010); In re -A-, (BIA May 31, 2007) (slip op.). In fact,

after oral arguments in this case, the BIA issued a decision

accepting the particular social group of individuals in Ghana

with severe mental illness, specifically bipolar disorder, who

are indigent and lack family support. In re --, (BIA Nov. 15,

2013) (slip op.). These cases illustrate that in making asylum

determinations, the BIA must consider an individual’s proposed

group as a whole. Once again, it is unclear whether the BIA

misapplied its own legal standard or advanced a new legal

standard that involves piecemeal analysis. Either way, the

BIA’s opinion is “manifestly contrary to the law.” Crespin-

Valladares, 632 F.3d at 126.

C.

Particular social groups must also be characterized by

immutability, and Mr. Temu’s proposed group easily satisfies

this final element. The BIA’s conclusion to the contrary rests

on factual error. The BIA opinion finds that “there is no cure

for bipolar disorder,” J.A. 154, so there is no doubt that

bipolar disorder is immutable. However, the BIA found no

20
immutability because Mr. Temu’s erratic behavior can be

controlled with medication. Id. However, in the same opinion,

the BIA also adopts the finding that “there is no consistent

access to the medications the respondent needs in Tanzania,” and

that because his family has abandoned Mr. Temu, he will not be

able to obtain what medications are available. J.A. 146. Once

again, the BIA’s opinion advances two factual findings that are

impossible to reconcile without violating fundamental rules of

logic. According to the BIA, Mr. Temu’s disorder will never be

cured and will only worsen. J.A. 146. He can only control his

behavior with medication, but he will not have access to this

medication in Tanzania. The inescapable conclusion from this

finding is that if he is returned to Tanzania, Mr. Temu will not

be able to control his behavior. In sum, Mr. Temu’s membership

in his proposed group is not something he has the power to

change.

The BIA’s position has been explicitly rejected by the

Seventh Circuit and by the BIA itself. In Kholyavskiy v.

Mukasey, the Seventh Circuit considered an asylum claim based in

part on the applicant’s mental illness. 540 F.3d 555, 572–74

(7th Cir. 2008). The BIA found no immutability because even if

the disease is incurable, the individual’s behavior could be

controlled through medication—medication that the applicant

would not have access to if returned to his home country. The

21
Seventh Circuit concluded that the BIA’s immutability argument,

which is identical to the one presented here, had no factual

basis. Id. at 573. Further, the BIA itself has found that

severe mental illness is immutable in two unpublished opinions,

explicitly ruling that “bipolar disorder [is] a chronic

psychiatric condition subject to treatment but not cure, and

thus it [is] an immutable characteristic.” In re -A-, (BIA May

31, 2007) (slip op.); In re --, (BIA Nov. 15, 2013) (slip op.)

(finding immutability because bipolar illness is permanent

regardless of medication). These cases reach the same

conclusion that is compelled by the facts of this case: when an

individual suffers from an incurable mental illness, it is of no

relevance that somewhere in the world, there exists medication

that can help him control the illness. If he cannot access the

medication, his behavior is as effectively immutable as if the

medication did not exist. Further, the underlying bipolar

disorder will never change. While it can be managed, this does

not mean that it can be cured. These facts compel the finding

that Mr. Temu’s group membership is immutable.

22
 V.

For the foregoing reasons, we grant the petition for

review, vacate the BIA’s order affirming the IJ’s decision, and

remand for further consideration consistent with this opinion.

PETITION FOR REVIEW GRANTED,
ORDER VACATED, AND CASE REMANDED

23
AGEE, Circuit Judge, dissenting:

Because I find the majority opinion errs in holding that

the Board of Immigration Appeals (“Board”) impermissibly

interpreted the Immigration and Nationality Act (“INA”) in

reviewing Temu’s application for asylum and withholding of

removal under the INA, I respectfully dissent. Specifically, I

conclude that the Board did not err as a matter of law in its

determination that Temu’s proposed social group lacked the

necessary characteristic of particularity.

I.

As the majority describes, the facts are not in dispute and

the immigration judge (“IJ”) found the evidence Temu presented—

including his own testimony about his treatment in Tanzania—to

be credible. The record demonstrates that, beginning in 2001 or

2002, Temu began displaying erratic behavior and was both

hospitalized and jailed following episodes where he would walk

onto a road and attempt to direct traffic. During his

hospitalizations and imprisonment, he was tied up and beaten.

The nurses and doctors indicated that they believed Temu was

mentally ill and referred to him by the term “mwenda wazimu,”

which roughly means “demon-possessed or deranged.” (A.R. 55,

24
136. 1) Upon Temu’s release, his family increasingly rejected

him as their efforts to rid him of his “evil spirit” failed.

(A.R. 56, 137.)

While lawfully in the United States on a temporary visa,

Temu was taken to the hospital after police observed him

standing in the middle of a street attempting to direct traffic.

Over time and after observation, medical professionals diagnosed

Temu with bipolar disorder. Temu’s visitor’s visa expired in

2006, but he nevertheless remained in the United States

unlawfully. Although he can be employed and function

independently while on medication, Temu has suffered relapses

when he does not take his medications. On two occasions during

such relapses, Temu was detained in psychiatric facilities after

police observed him in the middle of a street attempting to

control traffic.

In 2010, the Department of Homeland Security filed a notice

to appear against Temu charging him with eligibility for removal

based on overstaying his visitor’s visa without authorization.

He asserted eligibility for asylum and withholding of removal

under the INA based on his membership in a particular social

group, which he identified as “schizophrenic and bipolar

1
Citations to the adopted administrative record filed with
this Court are denoted by “A.R.”

25
individuals in Tanzania who exhibit outwardly erratic behavior.” 2

(A.R. 72, 153.)

The IJ concluded that Temu satisfied the requirements for

filing a late application for relief, and also determined that

he satisfied the criteria for relief under the Convention

Against Torture. As to Temu’s other claims, the IJ concluded

that Temu was ineligible for asylum or withholding of removal

under the INA because he failed to “demonstrate[] that the harm

he suffered was inflicted on account of his membership in a

cognizable particular social group as required by law.” (A.R.

72, 153.) She held that Temu’s proposed group lacked the three

characteristics for a particular social group that the agency

has determined the INA requires: particularity, immutability,

and social visibility. Alternatively, the IJ concluded that

Temu failed to demonstrate a nexus between his past persecution

and his membership in the proposed social group. The Board

adopted the IJ’s findings and conclusions, and dismissed Temu’s

appeal, agreeing that Temu’s proposed group did not satisfy the

requirements for a particular social group.

2
The alternate diagnosis of schizophrenia is no longer part
of Temu’s proposed social group.

26
 II.

The Court must uphold the denial of Temu’s application for

asylum unless the denial is “manifestly contrary to the law and

an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). Whether a

proposed group constitutes a particular social group under the

INA is a question of law that the Court reviews de novo. Lin v.

Mukasey, 517 F.3d 685, 691 (4th Cir. 2008). In so doing,

however, the Court accords Chevron 3 deference to the Board’s

reasonable interpretation of the INA. Id. at 691-92. Where, as

here, the Board adopts the IJ’s decision and includes its own

reasons for affirming, the Court reviews both decisions.

Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010).

To establish eligibility for the discretionary relief of

asylum, Temu had the burden of showing that he has a “well-

founded fear of persecution on account of . . . membership in a

particular social group . . . .” Naizgi v. Gonzales, 455 F.3d

484, 486 (4th Cir. 2006) (citing 8 U.S.C. § 1101(a)(42)(A); 8

C.F.R. § 1208.13(a). Temu faces a higher burden of proof to

establish eligibility for withholding of removal—he must

demonstrate “that it is more likely than not that [his] life or

freedom would be threatened . . . because of [his] . . .

3
Chevron v. Nat’l Res. Defense Counsel, 467 U.S. 837
(1984).

27
membership in a particular social group . . . .” Gomis v.

Holder, 571 F.3d 353, 359 (4th Cir. 2009) (citing 8 U.S.C. §

1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2)); see also Camara v.

Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).

The INA does not define “particular social group.” The IJ

and Board rely on prior Board opinions that interpreted this

phrase to mean a group that (1) “share[s] a common, immutable

characteristic” other than the fact that they are targeted for

persecution, (2) that “[has] particular and well-defined

boundaries,” and (3) that “possess[es] a recognized level of

social visibility.” 4 (A.R. 68.)

4
On appeal, Temu challenges the Board’s use of this three-
part test in addition to its application of it, asserting that
requiring “social visibility” is a marked departure from the
Board’s long-standing approach to defining a “particular social
group” and that this Court should not afford this criteria
Chevron deference. The Attorney General responds that Temu has
waived appellate review of the Board’s use of the social
visibility criteria because he failed to raise this issue in his
appeal to the Board and thus has not exhaust his administrative
remedies, as required by the INA.
The majority opinion does not address this issue and
proceeds instead directly to the Board’s application of the
social visibility criteria. I would expressly hold that the
Court lacks jurisdiction to consider this aspect of Temu’s
claim. The INA expressly requires exhaustion of administrative
remedies, 8 U.S.C. § 1252(d)(1), and as such there is no
futility exception to this requirement and it must be strictly
enforced. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).
And although this Court alone can resolve the question of
Chevron deference, the Board could have considered anew whether
its use of the three-part criteria was an appropriate
interpretation of the INA and cured its purported lack of an
(Continued)
28
 Temu challenges the IJ and Board’s application of the

three-part analysis of his proposed group and its conclusion

that it was not a cognizable “particular social group” under the

INA. As noted, the IJ and Board concluded that Temu’s proposed

group of bipolar individuals in Tanzania who exhibit outwardly

erratic behavior lacked all three characteristics necessary for

an alien to prove his or her “particular social group” status:

immutability, particularity, and social visibility. I conclude

that the Board’s decision can be upheld with respect to the

particularity requirement, and it is therefore unnecessary to

proceed further to deny Temu’s petition for review. See Zelaya

v. Holder, 668 F.3d 159, 167 (4th Cir. 2012) (affirming the

Board’s decision to deny asylum based on conclusion that the

proposed group lacks particularity without discussing the

remaining characteristics)

As its title suggests, a “particular social group” must

have “particular and well-defined boundaries,” id. at 166, such

that it is not “too amorphous . . . to create a benchmark for

determining group membership,” Matter of S-E-G-, 24 I. & N. Dec.

579, 584 (B.I.A. 2008). The majority concludes that the IJ and

Board’s determination that Temu’s proposed group lacks

explanation for why it was appropriate to use that construct had
Temu raised that issue for the Board’s consideration.

29
particularity is based on an error of law. Maj. Op. at 15-20.

Specifically, the majority opines that the IJ and Board

“commit[ted] legal error by splitting Mr. Temu’s group in two

and rejecting each part, rather than considering it as a whole.”

Maj. Op. at 17. I disagree.

At the outset, it is fundamentally important to review the

IJ and Board’s actual holdings. The IJ concluded that Temu’s

proposed social group lacked particularity “because the term

‘erratic behavior’ is too amorphous to ‘provide an adequate

benchmark for determining group membership.’” (A.R. 72.) It

explained that “[e]rratic behavior could range from eccentric

remarks to violent outbursts. Whether one perceives a

particular behavior to be ‘erratic’ is a question of

perspective, and as a result the respondent’s particular social

group lacks particularity.” (Id.) The Board, in turn, agreed

with the IJ’s conclusion that “‘erratic behavior’ is too

indeterminate to meet the requirement of particularity . . . as

the mentally ill . . . comprise a wide variety of different

individuals covering a broad range of functionality.” (A.R. 4.)

And in rejecting Temu’s argument that he satisfied the

particularity requirement “with evidence that individuals with .

. . bipolar disorder suffer from a discrete set of symptoms[]

that include[s] erratic behavior,” the Board also noted that

“erratic behavior is an amorphous characteristic, which does not

30
provide an adequate benchmark for determining group membership

or a concrete trait that would readily identify a person as

possessing such a characteristic.” (Id.)

As the above recitation suggests, the Board did not divide

Temu’s proposed group into two discrete subsections and consider

them entirely apart from each other. To the extent that the

underlying analysis focused on the component parts, however, it

was not an error of law to do so. If each component of a

proposed social group is amorphous and lacks particularity then

it will often be true – and I conclude is the case here – that

the group as a whole also lacks the requisite particularity.

Far from being an aberration in this Court’s or the Board’s

precedent, the IJ and Board’s approach in this case is one that

both the Board and this Court have used in the past. For

example, in Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011), the

Court upheld the Board’s conclusion that Lizama’s proposed

social group of “young, Americanized, well-off Salvadoran male

deportees with criminal histories who oppose gangs” lacked

particularity. Id. at 442. In so holding, the Court observed

that the component parts of this group were “all amorphous

characteristics that neither ‘provide an adequate benchmark for

determining group membership,’ nor embody concrete traits that

would readily identify a person as possessing those

characteristics.” Id. at 447 (internal citation omitted).

31
Indeed, Lizama specifically argued that the Board had erred by

“dissect[ing] [Lizama’s] social group into supbarts, and

fail[ing] to consider the group in its totality.” Id. Far from

recognizing that approach as legal error, the Court rejected the

argument for the simple reason that Lizama failed to “explain

how viewing the above-mentioned terms in conjunction with each

other makes the group any more particular[.] The truth remains

that, as a whole, the group described is not narrow or enduring

enough to clearly delineate its membership or readily identify

its members.” Id. at 447-48. If the approach taken by the

Board had been an error of law, Lizama would have recognized it

as such and would not have applied the same approach in

considering whether Lizama’s proposed group lacked

particularity.

As another example, in Zelaya v. Holder, 668 F.3d 159 (4th

Cir. 2012), Zelaya asserted that he was eligible for asylum and

withholding of removal based on his membership in the proposed

group of “young Honduran males who (1) refuse to join the Mara

Salvatrucha 13 gang (MS-13), (2) have notified the authorities

of MS-13’s harassment tactics, and (3) have an identifiable

tormentor within MS-13.” Id. at 162. In upholding the Board’s

denial of relief based on the conclusion that Zelaya’s group was

not cognizable under the INA, the Court held:

32
 The critical problem with Zelaya’s proposed social
group for purposes of seeking asylum is that it fails
the BIA’s particularity requirement. First, as we
have previously recognized, opposition to gangs is an
amorphous characteristic providing neither an adequate
benchmark for determining group membership nor
embodying a concrete trait that would readily identify
a person as possessing such a characteristic.
Resisting gang recruitment is similarly amorphous, and
the fact that Zelaya’s conduct in resisting
recruitment included complaining twice to the police
adds little to the particularity equation in the face
of the common sense proposition that MS-13 would look
unfavorably upon anyone who complained about its
harassment tactics to the police. Similarly, the
concept that a person who is victimized by one gang
member more than by other gang members somehow serves
to particularize all such persons into a targeted
social group is just nonsensical.

Id. at 166-67. The Court thus considered the group as a whole,

but in so doing addressed why its specific components lacked

particularity as part of that whole. Similarly, here, the Board

considered Temu’s proposed group and concluded that it consisted

of criteria that would not make that group “particular.” (Cf.

A.R. 4.) Far from being an error of law, that is precisely the

inquiry the IJ and Board are charged with undertaking.

I conclude that the IJ and Board’s determinations after

conducting that proper legal inquiry are not manifestly contrary

to the law or an abuse of discretion. No adequate benchmark

exists for determining whether an individual is a member of a

group defined as “bipolar individuals in Tanzania who engage in

erratic behavior.” Contrary to the majority’s claim, there is

nothing inherent in this group’s description that limits a

33
person’s erratic behavior to a diagnosis of bipolar disorder or

vice versa. More to the point, bipolar disorder covers a wide

spectrum of behaviors and tendencies, and “erratic behavior” is

inherently subjective and amorphous. There is no discernible

basis for readily identifying an individual as being part of the

proposed group or not. See, e.g., Mendoza-Alvarez v. Holder,

714 F.3d 1161, 164 (9th Cir. 2013) (per curiam) (rejecting the

proposed social groups of “all insulin-dependent diabetics or

all insulin-dependent diabetics who suffer from mental

illnesses” (whether the group contained the additional

characteristics of an inability to work, lack of medical

insurance, and a lack of money from other sources from which to

pay for essential medication or not) as lacking particularity

because the proposed group “include[s] large numbers of people

with different conditions and in different circumstances . . .

[and] [i]ndividuals may have these conditions separately or in

combination, and in varying degrees of severity” and thus are

“far from a particular, discrete social group”); Matter of S-E-

G-, 24 I. & N. Dec. at 585 (concluding that “male children who

lack stable families and meaningful adult protection, who are

from middle and low income classes, who live in territories

controlled by the MS-13 gang, and who refuse recruitment” lacks

particularity because “these characteristics remain amorphous

34
[given that] ‘people’s ideas of what those terms mean can

vary’”).

The majority is correct that the IJ and Board must consider

the scope of the group the petitioner actually proffers. See

Maj. Op. at 18. And it is conceptually true that the INA does

not require “that each individual trait must meet all the

criteria for a ‘particular social group’” in order for the

proposed group considered as a whole to satisfy the

particularity requirement. See Maj. Op. at 19. But where none

of the proposed group’s parts satisfy the requirement, then it

will most frequently be the case that the whole cannot satisfy

it either.

The majority’s reliance on Crespin-Valladares v. Holder,

632 F.3d 117 (4th Cir. 2011), is, I believe, misplaced because

there the petitioners’ proposed group consisted in part of

family members, a trait that had previously been recognized as

being a discrete group that was well-defined. Id. at 125. The

Board’s error in that case was ignoring that component of the

proposed group in conducting its original analysis and then re-

characterizing the group on remand beyond its proposed scope.

Id.; see also Zelaya, 668 F.3d at 166 (noting Crespin-

Valladares’s holding that “the self-limiting nature of the

family unit satisfied the particularity requirement”). Neither

the IJ nor the Board engaged in similar conduct here; instead,

35
they considered Temu’s proposed group according to each

component he urged and found that this proposed group lacked the

requisite particularity. For the reasons described above, I

would hold that their analysis was not manifestly contrary to

the law or an abuse of discretion.

III.

Because I would uphold the Board’s decision with respect to

particularity, it follows that Temu’s proposed group would fail

to satisfy all the required characteristics of a particular

social group, and his claim would fail as a matter of law. Cf.

Zelaya, 668 F.3d at 167. As such, I do not find it necessary to

consider Temu’s remaining arguments. I would deny Temu’s

petition for review, thereby affirming the Board’s decision to

deny Temu’s application for asylum and withholding of removal

under the INA. I therefore respectfully dissent.

36