C-A

Cite as 23 I&N Dec. 951 (BIA 2006) Interim Decision #3535

In re C-A-, Respondent
Published June 15, 20061
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) The members of a particular social group must share a common, immutable
characteristic, which may be an innate one, such as sex, color, or kinship ties, or a shared
past experience, such as former military leadership or land ownership, but it must be one
that members of the group either cannot change, or should not be required to change,
because it is fundamental to their individual identities or consciences. Matter of Acosta,
19 I&N Dec. 211(BIA 1985), followed.
(2) The social visibility of the members of a claimed social group is an important
consideration in identifying the existence of a “particular social group” for the purpose
of determining whether a person qualifies as a refugee.
(3) The group of “former noncriminal drug informants working against the Cali drug cartel”
does not have the requisite social visibility to constitute a “particular social group.”
FOR RESPONDENT: Michael D. Ray, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Maria M. Lopez-Enriquez,
Assistant Chief Counsel
BEFORE: Board Panel: HOLMES, HURWITZ, and MILLER, Board Members.
HOLMES, Board Member:

The respondents, a married couple and their two minor children, are natives
and citizens of Colombia. In their deportation proceedings, the lead
respondent requested asylum and withholding of deportation, claiming fear of
persecution in Colombia on account of an imputed political opinion and
membership in a particular social group. On July 31, 1997, an Immigration
Judge denied their claims for relief and granted voluntary departure. In a
decision dated March 20, 2002, we affirmed the Immigration Judge’s
decision.
On appeal, the United States Court of Appeals for the Eleventh Circuit
determined that the lead respondent was threatened with harm on account of
membership in a group composed of noncriminal informants. Castillo-Arias
1
The August 13, 2004, order in this case, which was affirmed by the United States Court
of Appeals for the Eleventh Circuit in Castillo-Arias v. U.S. Attorney General, 446 F.3d
1190 (11th Cir. 2006), is published with editorial changes consistent with our designation
of the case as a precedent.

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v. U.S. Atty. Gen. (11th Cir. 2003) (table). The court has remanded the case
for us to decide in the first instance whether noncriminal informants are a
“particular social group” as that term is used in the definition of a “refugee”
in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(42)(A) (2000). As discussed below, we find that the group of
noncriminal informants is not a “particular social group.”
I. BACKGROUND
A. Facts

The lead respondent provided the following account of events related to his
claim for asylum. He testified that he was born and raised in Cali, Colombia,
the headquarters of the Cali drug cartel. He lived with his wife and two
children in Cali, where he operated a bakery from 1990 to some time in 1995.
During this time, he was an acquaintance of A-D-, a former policeman in the
Cali Police Department who, after being fired for corruption, became the chief
of security for the Cali cartel. The respondent was also a good friend of
V-M-M-, the General Counsel for the city of Cali, who was responsible for
investigating and prosecuting drug traffickers in Cali.
Between 1990 and 1994, A-D- would visit the respondent’s bakery on
weekends and talk openly about his involvement with the Cali cartel. A-D-
identified people, places, and events related to the cartel’s exportation of
narcotics from Colombia to the United States and Europe. A-D- also
informed the respondent of his close ties with the Rodriguez brothers and
others involved in running the Cali drug cartel. The respondent passed the
information he learned from A-D- along to V-M-M-. He told V-M-M- about
A-D-’s statements that the Cali cartel had declared war against the
Government of Colombia and that they would kill politicians who opposed the
cartel. He also told V-M-M- what he had learned from A-D- about the
location and size of Cali cartel assets, including banks, bank accounts,
mansions, haciendas, villas, and other assets both within and outside of
Colombia.
On May 15, 1995, the respondent was with his son, who was riding a
bicycle, when a car suddenly blocked their path. Three men with pistols and
an automatic weapon attempted to force the respondent into the car. When he
resisted he was forced to the ground and beaten. The respondent’s son
screamed and one of the men hit him in the face with a pistol. The commotion
brought people in the neighborhood out of their houses and the men fled in
their car. As they departed, they warned the respondent that things would get
worse for him and his family and that they would also get V-M-M-. The

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respondent took his son to a clinic where he underwent reconstructive surgery
to repair his mouth and jaw.
After this attack, the respondents went to the lead respondent’s parents’
home in the northern section of Cali for the remainder of the month of May
1995. The respondent attempted to rent his bakery while he was away but
the lessees were intimidated and some lessees were harmed for failing to
disclose the whereabouts of the respondent. V-M-M- advised the respondent
to go into hiding and eventually to leave Colombia. The respondent’s parents
relocated in Cali in attempts to evade persons looking for their son. After the
respondent made two trips to the United States in 1995, the respondents
entered this country in February 1996 as visitors for pleasure with
authorization to remain until August, 8, 1996.
The respondent last spoke to A-D- in early 1995, and he has heard
unconfirmed reports that A-D- may have been killed. The Rodriguez brothers,
leaders of the Cali cartel, were prosecuted and served time in prison. The
respondent did not appear as a witness in the criminal proceedings against
members of the Cali cartel. V-M-M- left Colombia for Spain after attempts
against his life by the Cali cartel. In April 1997, the respondent’s parents and
two sisters left Colombia for Germany.
B. The Immigration Judge’s Decision

The Immigration Judge found the respondent’s testimony credible but
concluded that he had failed to establish either past persecution or a
well-founded fear of persecution on account of a protected ground under the
Act. The Immigration Judge reasoned that the assault and threats against the
lead respondent were based on retaliation or retribution because of his
voluntary decision to provide information to the Colombian Government
concerning the operations of the Cali cartel. Finding a lack of the required
nexus, the Immigration Judge denied the respondents’ applications for asylum
and withholding of deportation.
C. The Board’s Decision

On appeal to the Board, the lead respondent argued that he had suffered
past persecution and had a well-founded fear of persecution based on (1) a
political opinion imputed by the drug cartel and (2) membership in a particular
social group composed of noncriminal informants who had informed against
the Cali drug cartel. We rejected the first argument, holding that the people
who threatened the respondent did so “out of personal motives and not due to
any political opinion imputed to the respondent.”
We did not separately address the claim based on membership in a
particular social group but stated that we agreed with the Immigration Judge

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“that the record contains insufficient evidence that there was any motivation
behind the actions of the cartel members against the respondent, other than
revenge for the aid he provided to the government.” We therefore affirmed
the Immigration Judge’s decision and dismissed the appeal.2
D. The Eleventh Circuit’s Decision.

The Eleventh Circuit found that the evidence of record supported our
conclusion that the threats to the respondent were not on account of his
political opinion or imputed political opinion. The court found, however, that
it was unable to determine on the record before it whether the respondent had
been targeted because of his membership in a particular social group.
In addressing the particular social group issue, the court found that “[t]he
BIA implicitly acknowledged two possible bases for the action of the cartel
members: retribution, and [the respondent’s] status as an informant.” The
court found that the Board erred in concluding, based on the evidence in the
record, that the sole motive for the actions against the respondent was revenge
for the aid he provided to the Colombian Government. The court stated that
“[a]lthough there certainly is evidence to support the BIA’s conclusion that
revenge was a motive in the action of cartel members, a reasonable fact-finder
would be compelled to conclude that [the respondent] has produced evidence
from which it is reasonable to believe that the harm was motivated by his
membership in a group composed of noncriminal informants.”
Having found that the respondents were targeted because of their
membership in a group composed of noncriminal informants, the court
reversed the Board’s finding that the sole motive for harming the respondents
was retaliation or retribution. Because we had not addressed whether
noncriminal informants constitute a “particular social group” within the
meaning of the Act, the court has now remanded that question for our
consideration.

2
With his appeal brief the respondent submitted documents marked Exhibits A and B in
support of his argument that internal relocation was not an option. The Exhibit A
documents concerned the respondent’s brother-in-law, a civic leader who worked against
the Cali cartel and who was shot in November 1998 after returning from a government
meeting. The Exhibit B document concerned threats to the surviving spouse of the
respondent’s brother-in-law. We did not reach the issue of internal relocation in our prior
decision and therefore did not address the additional evidence submitted with the appeal.
Nor do we now find that the information contained in these Exhibits would affect the
resolution of the particular social group issue, which we have been directed to address on
remand.

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II. ANALYSIS
A. Matter of Acosta Formulation

The starting point in defining the phrase “particular social group” is set
forth in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). There we explained
that “persecution on account of membership in a particular social group”
refers to
persecution that is directed toward an individual who is a member of a group of
persons all of whom share a common, immutable characteristic. The shared
characteristic might be an innate one such as sex, color, or kinship ties, or in some
circumstances it might be a shared past experience such as former military leadership
or land ownership. The particular kind of group characteristic that will qualify under
this construction remains to be determined on a case-by-case basis. However,
whatever the common characteristic that defines the group, it must be one that the
members of the group either cannot change, or should not be required to change
because it is fundamental to their individual identities or consciences. Only when this
is the case does the mere fact of membership become something comparable to the
other four grounds of persecution under the Act, namely, something that is beyond the
power of an individual to change or that is so fundamental to his identity or
conscience that it ought not be required to be changed. By construing “persecution
on account of membership in a particular social group” in this manner, we preserve
the concept that refuge is restricted to individuals who are either unable by their own
actions, or as a matter of conscience should not be required, to avoid persecution.

Id. at 233-34.
Under the standard established in Matter of Acosta, we have recognized
“particular social groups” in a number of cases. Matter of V-T-S-, 21 I&N
Dec. 792, 798 (BIA 1997) (Filipinos of mixed Filipino-Chinese ancestry);
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) (young women of the
Tchamba-Kunsuntu tribe of northern Togo who did not undergo female
genital mutilation as practiced by that tribe and who opposed the practice);
Matter of H-, 21 I&N Dec. 337 (BIA 1996) (members of the Marehan subclan
of Somalia who share ties of kinship and linguistic commonalities); Matter of
Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (persons identified as
homosexuals by the Cuban Government); Matter of Fuentes, 19 I&N Dec.
658 (BIA 1988) (former members of the national police of El Salvador).
The First, Third, Sixth, and Seventh Circuits have adopted our Acosta
formulation. See Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003)
(applying Acosta to find that “tattooed youth” were not a “particular social
group”); Lwin v. INS, 144 F.3d 505 (7th Cir. 1998) (finding that parents of
Burmese student dissidents shared a common, immutable characteristic
sufficient to comprise a particular social group); Fatin v. INS, 12 F.3d 1233,
1239-41 (3d Cir. 1993) (holding that a subgroup of Iranian feminists who

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refuse to conform to the government’s gender-specific laws and social norms
may constitute a particular social group); Ananeh-Firempong v. INS, 766 F.2d
621, 626 (1st Cir. 1985) (applying Acosta in determining that family relations
can be the basis of a particular social group).
The Ninth Circuit initially defined a “particular social group” as having a
“voluntary associational relationship” among its members, described as a
“collection of people closely affiliated with each other, who are actuated by
some common impulse or interest.” Sanchez-Trujillo v. INS, 801 F.2d 1571,
1576 (9th Cir. 1986). In a recent decision, however, the Ninth Circuit has
recognized that groups sharing immutable characteristics, such as a familial
relationship or sexual identity, could also be considered social groups within
the meaning of the refugee definition. Hernandez-Montiel v. INS, 225 F.3d
1084, 1093 (9th Cir. 2000) (holding that a “‘particular social group’ is one
united by a voluntary association, including a former association, or by an
innate characteristic that is so fundamental to the identities or consciences of
its members that members either cannot or should not be required to change
it”).
The Second Circuit follows the Ninth Circuit’s “voluntary associational
relationship” standard, but also requires that the members of a social group
must be externally distinguishable. Gomez v. INS, 947 F.2d 660, 664 (2d Cir.
1991) (explaining that “[l]ike the traits which distinguish the other four
enumerated categories–race, religion, nationality and political opinion–the
attributes of a particular social group must be recognizable and discrete).”
The United Nations High Commissioner for Refugees (“UNHCR”) has
recently adopted guidelines that combine elements of the Acosta immutable
or fundamental characteristic approach, as well as the Second Circuit’s “social
perception” approach. See UNHCR, Guidelines on International Protection:
“Membership of a particular social group” within the context of Article 1A(2)
of the 1951 Convention and/or its 1967 Protocol relating to the Status of
Refugees, U.N. Doc. HCR/GIP/02/02 (May 7, 2002), available at
http://www.unhcr.org/cgi-bin/texis/vtx/publ/opendoc.pdf?tbl=PUBL&id=3
d58de2da (“UNHCR Guidelines”). The UNHCR Guidelines define a
“particular social group” as
a group of persons who share a common characteristic other than their risk of being
persecuted, or who are perceived as a group by society. The characteristic will often
be one which is innate, unchangeable, or which is otherwise fundamental to identity,
conscience or the exercise of one’s human rights.

Id. at ¶ 11.
Having reviewed the range of approaches to defining particular social
group, we continue to adhere to the Acosta formulation. Under Acosta, we do
not require a “voluntary associational relationship” among group members.

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Nor do we require an element of “cohesiveness” or homogeneity among group
members. As discussed below, we have considered as a relevant factor the
extent to which members of a society perceive those with the characteristic in
question as members of a social group.
B. Application of the Acosta Formulation

The Eleventh Circuit has directed us to consider whether “noncriminal
informants” are a particular social group in the context of this case. We find
that this group is too loosely defined to meet the requirement of particularity.
The group of “noncriminal informants” could potentially include persons who
passed along information concerning any of the numerous guerrilla factions
or narco-trafficking cartels currently active in Colombia to the Government
or to a competing faction or cartel. In considering whether informants are a
particular social group, it is important to know the persons between whom the
information is being provided, as well as the nature of the information passed
along.
Although “noncriminal informants” do not constitute a particular social
group, the respondent, in his initial appeal to the Board, referred to a subgroup
of “former noncriminal government informants working against the Cali drug
cartel.” On remand, the respondent also refers to “noncriminal drug
informants working against the Cali drug cartel.” We understand the Eleventh
Circuit’s directive on remand to require consideration of these potentially
narrower formulations of the particular social group within the larger group
of noncriminal informants. We therefore examine whether “noncriminal drug
informants working against the Cali drug cartel” constitute a particular social
group.
Nothing in the statute, the regulations, or case law provides a definitive
answer to this question. In its brief on remand, the Department of Homeland
Security refers to a Tenth Circuit decision rejecting a social group claim based
on alleged membership in a social group consisting of “persons who have
worked as informants for drug enforcement agencies of the United States and
who are in danger of being retaliated against upon return to [Mexico]” as “not
supported by case law” or “by the principles underlying the Act.” United
States v. Aranda-Hernandez, 95 F.3d 977, 980-81 (10th Cir. 1996). The
Tenth Circuit decision, however, mentions the social group argument only in
passing and sheds little light on the resolution of the issue in this case.3
3
The issue in United States v. Aranda-Hernandez, supra, was whether the respondent had
been prejudiced by the Immigration Judge’s rejection of his asylum claim. The Immigration
Judge had rejected the claim on the merits but had also found that the respondent was
ineligible because of aggravated felony drug convictions. It is not clear from the decision
(continued...)

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Courts have recognized that informants in some situations may be able to
demonstrate persecution on account of political opinion. See, e.g., Grava v.
INS, 205 F.3d 1177 (9th Cir. 2000) (stating that threats against whistleblower
who reported corrupt behavior of government officials might be on account
of political opinion); Briones v. INS, 175 F.3d 727 (9th Cir. 1999) (holding
that death threats by a rebel group against confidential informer working for
the government were on account of political opinion); cf. Adhiyappa v. INS,
58 F.3d 261 (6th Cir. 1995) (finding that evidence supported our conclusion
that threats by terrorists were on account of status as a government informant
rather than based on political opinion). As far as we have found, no court has
held that government informants against a criminal enterprise such as a drug
cartel constitute a particular social group. We therefore examine, as a matter
of first impression, whether the respondent’s past acts–passing along
information concerning the Cali cartel to the Colombian Government–is the
kind of shared past experience that constitutes membership in a particular
social group.
1. Immutability Based on Past Experiences

The respondent asserts that the historical fact of having informed on the
Cali cartel is an immutable characteristic within the meaning of Acosta. A
past experience is, by its very nature, immutable, as it has already occurred
and cannot be undone. However, that does not mean that any past experience
that may be shared by others suffices to define a particular social group for
asylum purposes. For example, we do not afford protection based on social
group membership to persons exposed to risks normally associated with
employment in occupations such as the police or the military. Matter of
Fuentes, supra. In part, this is because persons accepting such employment
are aware of the risks involved and undertake the risks in return for
compensation. Similarly, a person who agrees to work as a government
informant in return for compensation takes a calculated risk and is not in a
position to claim refugee status should such risks materialize.
In Matter of Fuentes, supra, we stated that, although a former member of
the national police in El Salvador could not demonstrate persecution as a
member of a social group based on attacks by guerrillas while performing his
official duties as a police officer, his status as a former member of the national
police was “an immutable characteristic, as it is one beyond the capacity of the
respondent to change.” Id. at 662. Were a situation to develop in which

3
(...continued)
the extent to which Aranda’s social group argument may have been affected by his own
involvement in drug transactions.

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former police officers were targeted for persecution because of the fact of
having served as police officers, a former police officer could conceivably
demonstrate persecution based upon membership in a particular social group
of former police officers. On the other hand, if a former police officer were
singled out for reprisal, not because of his status as a former police officer, but
because of his role in disrupting particular criminal activity, he would not be
considered, without more, to have been targeted as a member of a particular
social group.
The respondent emphasizes in his brief on remand that he informed on the
Cali cartel, not for compensation or other quid pro quo, but out of a sense of
civic duty and moral responsibility. The question in this case becomes
whether the respondent’s civic motives for working as a government
informant distinguish his situation from that of informants employed by the
government. We find that the fact that the respondent acted out of a sense of
civic responsibility does not suffice to define a subgroup of uncompensated
informants who would be considered to constitute a particular social group.
Some persons employed as informants or otherwise receiving compensation
as informants, including police officers, also act partly out of a sense of civic
responsibility. Many such informants could plausibly claim that their primary
motivation was a sense of civic duty and the compensation alone would not
have provided sufficient incentive to undertake the risks involved. Therefore,
the distinction between informants who are compensated and those who act
out of civic motives is not particularly helpful in addressing the question of
who is deserving of protection under the asylum law.
2. Visibility

Our decisions involving social groups have considered the recognizability,
i.e., the social visibility, of the group in question. Social groups based on
innate characteristics such as sex or family relationship are generally easily
recognizable and understood by others to constitute social groups. In
considering clan membership in Matter of H-, supra, we did not rule
categorically that membership in any clan would suffice. Rather, before
concluding that membership in the Marehan subclan in Somalia constituted
membership in a particular social group, we examined the extent to which
members of the purported group would be recognizable to others in Somalia.
We found evidence in the record of “the presence of distinct and recognizable
clans and subclans in Somalia.” Id. at 343. Significantly, we found that the
various clans could be differentiated based on linguistic commonalities as well
as kinship ties. We noted that the former Immigration and Naturalization
Service’s Basic Law Manual also recognized that “clan membership is a

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highly recognizable, immutable characteristic that is acquired at birth and is
inextricably linked to family ties.” Id. at 342.
Our other decisions recognizing particular social groups involved
characteristics that were highly visible and recognizable by others in the
country in question. See, e.g., Matter of V-T-S-, supra (Filipinos of mixed
Filipino-Chinese ancestry); Matter of Kasinga, supra (young women of a
particular tribe who were opposed to female genital mutilation); Matter of
Toboso-Alfonso, supra (persons listed by the government as having the status
of a homosexual); Matter of Fuentes, supra (former members of the national
police). The two illustrations of past experiences that might suffice for social
group membership provided in Matter of Acosta, supra, at 233, i.e., “former
military leadership or land ownership,” are also easily recognizable traits.
The recent Guidelines issued by the United Nations confirm that “visibility”
is an important element in identifying the existence of a particular social
group. The Guidelines explain that the social group category was not meant
to be a “catch all” applicable to all persons fearing persecution. UNHCR
Guidelines, supra, at ¶ 2. In this regard, the Guidelines state that “a social
group cannot be defined exclusively by the fact that it is targeted for
persecution.” Id. However, “persecutory action toward a group may be a
relevant factor in determining the visibility of a group in a particular society.”
Id. at ¶ 14 (emphasis added).
When considering the visibility of groups of confidential informants, the
very nature of the conduct at issue is such that it is generally out of the public
view. In the normal course of events, an informant against the Cali cartel
intends to remain unknown and undiscovered. Recognizability or visibility
is limited to those informants who are discovered because they appear as
witnesses or otherwise come to the attention of cartel members.
The respondent’s reliance on the distinction between informants who act
out of a sense of civic responsibility, rather than for compensation to limit the
membership in the relevant social group, would also tie group membership to
a factor not “visible” to the Cali cartel or to other members of society.
Notably, there has been no showing that whether an informant was
compensated is of any relevance to the Cali cartel. Nor would members of
society in general recognize a social group based on informants who act out
of a sense of civic duty rather than for compensation.
The record in this case indicates that the Cali cartel and other drug cartels
have directed harm against anyone and everyone perceived to have interfered
with, or who might present a threat to, their criminal enterprises. In this sense,
informants are not in a substantially different situation from anyone who has
crossed the Cali cartel or who is perceived to be a threat to the cartel’s
interests. In fact, the Department of State country reports indicate that
“[n]arcotics traffickers frequently resorted to terror in attempts to intimidate

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the Government and the general population.” Committees on Foreign Affairs
and Foreign Relations, 103d Cong., 2d Sess., Country Reports on Human
Rights Practices for 1993 393 (Joint Comm. Print 1994) (emphasis added).
The victims of the narcotics traffickers included “politicians, labor organizers,
human rights monitors, and–overwhelmingly–peasant farmers.” Committees
on International Relations and Foreign Relations, 104th Cong., 2d Sess.,
Country Reports on Human Rights Practices for 1995 362 (Joint Comm. Print
1996); Committees on Foreign Relations and International Relations, 104th
Cong., 1st Sess., Country Reports on Human Rights Practices for 1994 350
(Joint Comm. Print 1995). While these respondents present very sympathetic
personal circumstances, it is difficult to conclude that any “group,” as actually
perceived by the cartel, is much narrower than the general population of
Colombia.
Given the voluntary nature of the decision to serve as a government
informant, the lack of social visibility of the members of the purported social
group, and the indications in the record that the Cali cartel retaliates against
anyone perceived to have interfered with its operations, we find that the
respondent has not demonstrated that noncriminal drug informants working
against the Cali drug cartel constitute a “particular social group” as that term
is used in the definition of a “refugee” in section 101(a)(42)(A) of the Act.
III. CONCLUSION
For the reasons stated above, we conclude that the lead respondent has not
demonstrated that he was persecuted based on membership in a particular
social group within the meaning of the “refugee” definition. We will therefore
dismiss the respondents’ appeal.
ORDER: The respondents’ appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and in
accordance with our decision in Matter of Chouliaris, 16 I&N Dec. 168 (BIA
1997), the respondents are permitted to depart from the United States
voluntarily within 30 days from the date of this order or any extension beyond
that time as may be granted by the district director; and in the event of failure
so to depart, the respondents shall be deported as provided in the Immigration
Judge’s order.

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