M-E-V-G

Cite as 26 I&N Dec. 227 (BIA 2014) Interim Decision #3795

Matter of M-E-V-G-, Respondent
Decided February 7, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) In order to clarify that the “social visibility” element required to establish a
cognizable “particular social group” does not mean literal or “ocular” visibility, that
element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA
2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- &J-G-U-,
24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006),
clarified.
(2) An applicant for asylum or withholding of removal seeking relief based on
“membership in a particular social group” must establish that the group is
(1) composed of members who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society in question.
(3) Whether a social group is recognized for asylum purposes is determined by the
perception of the society in question, rather than by the perception of the persecutor.
FOR RESPONDENT: Martin Duffy, Esquire; Ayodele Gansallo, Esquire, Philadelphia,
Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Associate
Legal Advisor
AMICI CURIAE: American Immigration Lawyers Association; 1 National Immigrant
Justice Center; 2 United Nations High Commissioner for Refugees 3 and Williams
& Connolly, LLP;4 William S. Boyd School of Law, University of Nevada, Las Vegas5
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER
and GREER, Board Members.
GUENDELSBERGER, Board Member:

This case is before us on remand from the United States Court of
Appeals for the Third Circuit for further consideration of the respondent’s
applications for asylum and withholding of removal. The court declined to
1
Benjamin R. Casper, Esquire; Vikram K. Badrinath, Esquire
2
Charles Roth, Esquire; Ashley Huebner, Esquire; Lisa Koop, Esquire
3
Pamela Goldberg, Esquire
4
Ana C. Reyes, Esquire; Amy Mason Saharia, Esquire
5
Fatma E. Marouf, Esquire

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afford deference to our conclusion that a grant of asylum or withholding of
removal under the “particular social group” ground of persecution requires
the applicant to establish the elements of “particularity” and “social
visibility.” Upon further consideration of the record and the arguments
presented by the parties and amici curiae, we will clarify our interpretation
of the phrase “particular social group.” 6 We adhere to our prior
interpretations of the phrase but emphasize that literal or “ocular” visibility
is not required, and we rename the “social visibility” element as “social
distinction.” The record will be remanded to the Immigration Judge for
further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
Prior decisions of the Board and Third Circuit have set forth the
underlying facts of this case in detail. In short, the respondent claims that
he suffered past persecution and has a well-founded fear of future
persecution in his native Honduras because members of the Mara
Salvatrucha gang beat him, kidnaped and assaulted him and his family
while they were traveling in Guatemala, and threatened to kill him if he
did not join the gang. In addition, the respondent testified that the gang
members would shoot at him and throw rocks and spears at him about two
to three times per week. The respondent asserts that he was persecuted “on
account of his membership in a particular social group, namely Honduran
youth who have been actively recruited by gangs but who have refused to
join because they oppose the gangs.”
The Immigration Judge issued a decision on June 15, 2005, denying the
respondent’s applications for asylum, withholding of removal, and
protection under Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp.
No. 51, at 197, 198, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”). We summarily affirmed the Immigration Judge on February 27,
2006. On September 7, 2007, the Third Circuit granted the respondent’s
petition for review and remanded the case for further consideration of his
arguments regarding his membership in a particular social group.

6
On remand, both parties and amici curiae filed additional briefs, which we
acknowledge and appreciate. On December 11, 2012, a three-member panel of the Board
heard oral arguments from both parties and the United Nations High Commissioner for
Refugees (“UNHCR”).

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Valdiviezo-Galdamez v. Att’y Gen. of U.S. (“Valdiviezo-Galdamez I”), 502
F.3d 285 (3d Cir. 2007).
On remand, we issued a decision on October 22, 2008, which again
denied the respondent’s applications for asylum and withholding of
removal. We held that the respondent did not establish past persecution
“on account of a protected ground” and applied our intervening decisions
in Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), and Matter of E-A-G-,
24 I&N Dec. 591 (BIA 2008), in concluding that the respondent did not
show that his proposed particular social group possessed the required
elements of “particularity” and “social visibility.”
The case is now before us following a second remand from the Third
Circuit. Valdiviezo-Galdamez v. Att’y Gen. of U.S. (“Valdiviezo-Galdamez
II”), 663 F.3d 582 (3d Cir. 2011). The court found that our requirement
that a particular social group must possess the elements of “particularity”
and “social visibility” is inconsistent with prior Board decisions, that
we have not announced a “principled reason” for our adoption of that
inconsistent requirement, and that our interpretation is not entitled to
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Valdiviezo-Galdamez II, 663 F.3d at
608. Nevertheless, the court advised that “an agency can change or adopt
its policies” and recognized that the Board may add new requirements to, or
even change, its definition of a “particular social group.” Id. (quoting
Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)) (internal quotation
marks omitted).

II. ISSUE
The question before us is whether the respondent qualifies as a
“refugee” as a result of his past mistreatment, and his fear of future
persecution, at the hands of gangs in Honduras. Specifically, we address
whether the respondent has established an asylum claim based on his
membership in a particular social group.

III. PARTICULAR SOCIAL GROUP
A. Origins

An applicant for asylum has the burden of establishing that he or she is
a refugee within the meaning of section 101(a)(42) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(42) (2012). This requires the applicant
to demonstrate that he or she suffered past persecution or has a
well-founded fear of future persecution on account of “race, religion,

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nationality, membership in a particular social group, or political opinion.”
Id.; see also INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992); INS
v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987) (recognizing that one of
Congress’ primary purposes in passing the Refugee Act of 1980,
Pub. L. No. 96-212, 94 Stat. 102, was to implement the principles agreed to
in the United Nations Protocol Relating to the Status of Refugees, opened
for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into
force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), as well
as the United Nations Convention Relating to the Status of Refugees,
adopted July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into
force Apr. 22, 1954), available at http://www.unhcr.org/3b66c2aa10.html
(“Convention”)).
The phrase “membership in a particular social group,” which is not
defined in the Act, the Convention, or the Protocol, is ambiguous and
difficult to define. Matter of Acosta, 19 I&N Dec. 211, 232–33 (BIA
1985); see also, e.g., Valdiviezo-Galdamez II, 663 F.3d at 594 (“The
concept is even more elusive because there is no clear evidence of
legislative intent.”); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993) (“Read
in its broadest literal sense, the phrase is almost completely open-ended.
Virtually any set including more than one person could be described as a
‘particular social group.’”).
Congress has assigned the Attorney General the primary responsibility
of construing ambiguous provisions in the immigration laws, and this
responsibility has been delegated to the Board. INS v. Aguirre-Aguirre, 526
U.S. 415, 424–25 (1999); see also section 103(a)(1) of the Act, 8 U.S.C.
§ 1103(a)(1) (2012) (providing that the “determination and ruling by the
Attorney General with respect to all questions of law shall be controlling”).
The Board’s reasonable construction of an ambiguous term in the Act, such
as “membership in a particular social group,” is entitled to deference. See
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
980 (2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. at 844.
We first interpreted the phrase “membership in a particular social
group” in Matter of Acosta. We found the doctrine of “ejusdem generis”
helpful in defining the phrase, which we held should be interpreted on
the same order as the other grounds of persecution in the Act. Matter
of Acosta, 19 I&N Dec. at 233–34. See generally CSX Transp., Inc.
v. Alabama Dep’t of Revenue, 131 S. Ct. 1101, 1113 (2011) (stating that the
canon “ejusdem generis” literally means “of the same kind”). The phrase
“persecution on account of membership in a particular social group” was
interpreted to mean “persecution that is directed toward an individual who
is a member of a group of persons all of whom share a common, immutable

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characteristic.” Matter of Acosta, 19 I&N Dec. at 233. The common
characteristic that defines the group 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.” Id.

B. Evolution of the Board’s Analysis of Social Group Claims

Matter of Acosta was decided based on whether a common immutable
characteristic existed. Matter of Acosta, 19 I&N Dec. at 233. We rejected
the applicant’s claim that a Salvadoran cooperative organization of taxi
drivers was a particular social group, because members could change jobs
and working in their job of choice was not a “fundamental” characteristic.
Id. at 234 (“[T]he internationally accepted concept of a refugee simply does
not guarantee an individual a right to work in the job of his choice.”).
Because there was no common immutable characteristic in Matter of
Acosta, we did not reach the question whether there should be additional
requirements on group composition.
At the time we issued Matter of Acosta, only 5 years after enactment of
the Refugee Act of 1980, relatively few particular social group claims
had been presented to the Board. Given the ambiguity and the potential
breadth of the phrase “particular social group,” we favored a case-by-case
determination of the particular kind of group characteristics that would
qualify under the Act. Id. at 233. This flexible approach enabled courts
to apply the particular social group definition within a wide array of
fact-specific asylum claims.
Now, close to three decades after Acosta, claims based on social group
membership are numerous and varied. The generality permitted by the
Acosta standard provided flexibility in the adjudication of asylum claims.
However, it also led to confusion and a lack of consistency as adjudicators
struggled with various possible social groups, some of which appeared to
be created exclusively for asylum purposes. See, e.g., Sepulveda
v. Gonzales, 464 F.3d 770, 772 (7th Cir. 2006) (“A social group has to have
sufficient homogeneity to be a plausible target for persecution. But under
Acosta this is not a demanding requirement . . . .”). In Matter of R-A-,
22 I&N Dec. 906, 919 (BIA 1999; A.G. 2001), we cautioned that “the
social group concept would virtually swallow the entire refugee definition
if common characteristics, coupled with a meaningful level of harm, were
all that need be shown.”7
7
Although our decision in Matter of R-A- was vacated by the Attorney General in 2001
and was explicitly limited to the facts of that case, its role in the progression of particular
social group claims analysis remains relevant.

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Over the years there were calls for the Board to state with more clarity
its framework for analyzing social group claims. E.g., Henriquez-Rivas
v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); Rojas-Perez v.Holder,
699 F.3d 74, 81 (1st Cir. 2012); Sanchez-Trujillo v. INS, 801 F.2d 1571,
1575 n.6 (9th Cir. 1986) (noting that there is “a dearth of judicial authority
construing the meaning of ‘particular social group’”). To provide
clarification and address the evolving nature of the claims presented by
asylum applicants, we refined the particular social group interpretation
first discussed in Matter of Acosta to provide the additional analysis
required once an applicant demonstrated membership based on a common
immutable characteristic.
In a series of cases, we applied the concepts of “social visibility” and
“particularity” as important considerations in the particular social group
analysis, and we ultimately deemed them to be requirements. See
Orellana-Monson v. Holder, 685 F.3d 511, 521 (5th Cir. 2012) (“[C]ase by
case adjudication is permissible and . . . such adjudication does not
necessarily follow a straight path. The BIA may make adjustments to its
definition of ‘particular social group’ and often does so in response to the
changing claims of applicants.”). Although we expanded the particular
social group analysis beyond the Acosta test, the common immutable
characteristic requirement set forth there has been, and continues to be, an
essential component of the analysis.
In Matter of C-A-, we recognized “particularity” as a requirement in the
particular social group analysis and held that the “social visibility” of the
members of a claimed social group is “an important element in identifying
the existence of a particular social group.” Matter of C-A-, 23 I&N Dec.
951, 957, 959–61 (BIA 2006) (holding that “noncriminal informants
working against the Cali drug cartel” in Colombia were not a particular
social group), aff’d sub nom. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d
1190 (11th Cir. 2006), cert. denied, 549 U.S. 1115 (2007). We
subsequently determined that a “particular social group” cannot be defined
exclusively by the claimed persecution, that it must be “recognizable” as a
discrete group by others in the society, and that it must have well-defined
boundaries. Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 74–76 (BIA
2007) (holding that “wealthy” Guatemalans were not shown to be a
particular social group within the meaning of the “refugee” description),
aff’d sub nom. Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007).
Finally, in 2008, we issued Matter of S-E-G- and Matter of E-A-G-, in
which we held that―in addition to the common immutable characteristic
requirement set forth in Acosta―the previously introduced concepts
of “particularity” and “social visibility” were distinct requirements for
the “membership in a particular social group” ground of persecution. In

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Matter of S-E-G-, 24 I&N Dec. at 582, we stated that we were seeking to
provide “greater specificity to the definition of a social group” outlined in
Acosta by requiring an applicant to establish “particularity” and “social
visibility,” consistent with our prior decisions. In Matter of E-A-G-, we
noted that “we have issued a line of cases reaffirming the particular social
group formula set forth in Matter of Acosta . . . and providing further
clarification regarding its proper application.” Matter of E-A-G-, 24 I&N
Dec. at 594 (reaffirming the requirements of Acosta and the additional
requirements of “particularity” and “social visibility”).
Our articulation of these requirements has been met with approval in the
clear majority of the Federal courts of appeals. See Umana-Ramos
v. Holder, 724 F.3d 667, 671 (6th Cir. 2013); Henriquez-Rivas v. Holder,
707 F.3d at 1087–91 (clarifying the criteria while reserving assessment of
their validity); Orellana-Monson v. Holder, 685 F.3d at 521; Gaitan
v. Holder, 671 F.3d 678, 681 (8th Cir. 2012); Zelaya v. Holder, 668
F.3d 159, 165–66 & n.4 (4th Cir. 2012) (deferring to our particularity
requirement); Rivera-Barrientos v. Holder, 666 F.3d 641, 649–53 (10th Cir.
2012); Scatambuli v. Holder, 558 F.3d 53, 59–61 (1st Cir. 2009);
Ucelo-Gomez v. Mukasey, 509 F.3d at 74; Castillo-Arias v. U.S. Att’y Gen.,
446 F.3d at 1196–99. However, it has not been universally accepted.
See Valdiviezo-Galdamez II, 663 F.3d at 603–09; Gatimi v. Holder, 578
F.3d 611, 615–16 (7th Cir. 2009) (rejecting the social visibility
requirement); see also Cece v. Holder, 733 F.3d 662, 668–69 & n.1 (7th
Cir. 2013) (en banc).

C. Positions of the Parties

On appeal, the respondent and amici curiae argue that the Board should
disavow the requirements of “social visibility” and “particularity” and
should restore Matter of Acosta as the sole standard for determining a
particular social group.8 The Department of Homeland Security (“DHS”)
argues that “social visibility” and “particularity” are valid refinements to
the particular social group interpretation but that the two concepts should
be clarified and streamlined into a single requirement.

8
The UNHCR argues that if the Board does not return to solely utilizing Matter of
Acosta, we should adopt its alternative approach, in which a particular social group may
be established by the “protected characteristics” approach embodied in Matter of Acosta
or the “social perception” approach that was established in Australia. See A v Minister
for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Austl.), available at
http://www.refworld.org/docid/3ae6b7180.html.

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IV. ANALYSIS
We take this opportunity to clarify our interpretation of the phrase
“membership in a particular social group.” In doing so, we adhere to the
social group requirements announced in Matter of S-E-G- and Matter of
E-A-G-, as further explained here and in Matter of W-G-R-, 26 I&N Dec.
208 (BIA 2014), a decision published as a companion to this case.9 We
believe that these requirements provide guidance to courts and those
seeking asylum based on “membership in a particular social group,”
are necessary to address the evolving nature of claims asserted on
this ground of persecution, and are essential to ensuring the consistent
nationwide adjudication of asylum claims. See Matter of R-A-,
24 I&N Dec. 629, 631 (A.G. 2008) (“Providing a consistent, authoritative,
nationwide interpretation of ambiguous provisions of the immigration laws
is one of the key duties of the Board.”); see also FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515–16 (2009); 8 C.F.R. § 1003.1(d)(1)
(2013). In this regard, we clarify that the “social visibility” test was never
intended to, and does not require, literal or “ocular” visibility.

A. Protection Within the Refugee Context

The interpretation of the phrase “membership in a particular social
group” does not occur in a contextual vacuum. See Medtronic, Inc. v. Lohr,
518 U.S. 470, 484–85 (1996) (stating that although analysis of a statute
begins with its text, interpretation of the statutory language does not occur
in a contextual vacuum). Consistent with the interpretive canon “ejusdem
generis,” the proper interpretation of the phrase can only be achieved when
it is compared with the other enumerated grounds of persecution (race,
religion, nationality, and political opinion), and when it is considered
within the overall framework of refugee protection.10
The Act and the Protocol do not extend protection to all individuals who
are victims of persecution. They identify “refugees” as only those who face
persecution on account of “race, religion, nationality, membership in a
9
The Supreme Court has stated that administrative agencies may adopt a new or
changed interpretation as long as it is based on a “reasoned explanation.” FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515–16 (2009). Our decision in this case is not a
new interpretation, but it further explains the importance of particularity and social
distinction as part of the statutory definition of the phrase “particular social group.”
10
Ejusdem generis is a more specific application of the canon “noscitur a sociis,”
meaning that “a word is known by the company it keeps.” New Castle County DE
v. Nat’l Union Fire Ins. Co. of Pittsburg, 243 F.3d 744, 751 n.4 (3d Cir. 2001) (stating
that “noscitur a sociis is simply a broad form of ejusdem generis”).

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particular social group, or political opinion.” Section 101(a)(42) of the Act;
Protocol, supra, art. 1.
The limited nature of the protection offered by refugee law is
highlighted by the fact that it does not cover those fleeing from natural or
economic disaster, civil strife, or war. See Matter of Sosa Ventura, 25 I&N
Dec. 391, 394 (BIA 2010) (explaining that Congress created the alternative
relief of Temporary Protected Status because individuals fleeing from
life-threatening natural disasters or a generalized state of violence within a
country are not entitled to asylum). Similarly, asylum and refugee laws do
not protect people from general conditions of strife, such as crime and other
societal afflictions. See Konan v. Att’y Gen. of U.S., 432 F.3d 497, 506
(3d Cir. 2005); Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir. 2001)
(“[O]rdinary criminal activity does not rise to the level of persecution
necessary to establish eligibility for asylum.”); Singh v. INS, 134 F.3d 962,
967 (3d Cir. 1998) (“Mere generalized lawlessness and violence between
diverse populations, of the sort which abounds in numerous countries
and inflicts misery upon millions of innocent people daily around the
world, generally is not sufficient to permit the Attorney General to grant
asylum . . . .”) .
Unless an applicant has been targeted on a protected basis, he or she
cannot establish a claim for asylum. See Al Fara v. Gonzales, 404 F.3d
733, 740 (3d Cir. 2005) (“‘[G]enerally harsh conditions shared by many
other persons do not amount to persecution.’ . . . [H]arm resulting from
country-wide civil strife is not persecution ‘on account of’ an enumerated
statutory factor.” (quoting Fatin v. INS, 12 F.3d at 1240)); Matter of
N-M-A-, 22 I&N Dec. 312, 323, 326 (BIA 1998) (finding that an applicant
who faced “a variety of dangers arising from the internal strife in
Afghanistan” did not qualify for asylum).
The “membership in a particular social group” ground of persecution
was not initially included in the refugee definition proposed by the
committee that drafted the U.N. Convention; it was added later without
discussion. Matter of Acosta, 19 I&N Dec. at 232. The guidelines to the
Protocol issued by the United Nations High Commissioner for Refugees
(“UNHCR “) clearly state that the particular social group category was not
meant to be “a ‘catch all’ that applies to all persons fearing persecution.”
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, at 2, U.N. Doc. HCR/GIP/02/02 (May 7, 2002), available at
http://www.unhcr.org/3d58de2da.html (“UNHCR Guidelines”).
Societies use a variety of means to distinguish individuals based on
race, religion, nationality, and political opinion. The distinctions may be

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based on characteristics that are overt and visible to the naked eye or on
those that are subtle and only discernible by people familiar with the
particular culture. The characteristics are sometimes not literally visible.
Some distinctions are based on beliefs and characteristics that are largely
internal, such as religious or political beliefs. Individuals with certain
religious or political beliefs may only be treated differently within society if
their beliefs were made known or acted upon by the individual. The
members of these factions generally understand their own affiliation with
the grouping, and other people in the particular society understand that such
a distinct group exists.
Therefore these enumerated grounds of persecution have more in
common than simply describing persecution aimed at an immutable
characteristic. They have an external perception component within a given
society, which need not involve literal or “ocular” visibility. Considering
the refugee context in which they arise, we find that the enumerated
grounds all describe persecution aimed at an immutable characteristic that
separates various factions within a particular society.

B. Particular Social Group

Given the suggestions that further explanation of our interpretation
of the phrase “particular social group” is warranted, we now provide
such clarification based on the analysis set forth above. See, e.g.,
Henriquez-Rivas v. Holder, 707 F.3d at 1087–89; Rojas-Perez v. Holder,
699 F.3d at 81; Valdiviezo-Galdamez II, 663 F.3d at 603–09.
The primary source of disagreement with, or confusion about, our prior
interpretation of the term “particular social group” relates to the social
visibility requirement. See Umana-Ramos v. Holder, 724 F.3d at 672–73;
Henriquez-Rivas v. Holder, 707 F.3d at 1087; Valdiviezo-Galdamez II, 663
F.3d at 603–09. Contrary to our intent, the term “social visibility” has led
some to believe that literal, that is, “ocular” or “on-sight,” visibility is
required to make a particular social group cognizable under the Act.
See Valdiviezo-Galdamez II, 663 F.3d at 606–07. Because of that
misconception, we now rename the “social visibility” requirement as
“social distinction.” 11 This new name more accurately describes the
function of the requirement.

11
The term “social distinction” was proposed by the DHS on appeal. It argued for the
combination of the “social visibility” and “particularity” requirements into a single
“social distinction” requirement because of the close relationship between the two
concepts. While we acknowledge that there is some degree of overlap, combining the
requirements is not warranted because they serve distinct purposes. Thus, while we
(continued . . .)

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Thus, we clarify that an applicant for asylum or withholding of removal
seeking relief based on “membership in a particular social group” must
establish that the group is

(1) composed of members who share a common immutable characteristic,
(2) defined with particularity, and
(3) socially distinct within the society in question.

1. Overview of Criteria

The criteria of particularity and social distinction are consistent with
both the language of the Act and our earlier precedents. By defining these
concepts in Matter of C-A- and the cases that followed it, we did not depart
from or abrogate the definition of a particular social group that was set
forth in Matter of Acosta; nor did we adopt a new approach to defining
particular social groups under the Act. See Henriquez-Rivas v. Holder,
707 F.3d at 1084 (describing our refinement of the definition of a particular
social group). Instead, we clarified the definition of the term to give it
more “concrete meaning through a process of case-by-case adjudication.”
INS v. Aguirre-Aguirre, 526 U.S. at 425 (quoting INS v. Cardoza Fonseca,
480 U.S. at 448) (internal quotation marks omitted); see also
Orellana-Monson v. Holder, 685 F.3d at 521 (“[T]he BIA’s current
particularity and social visibility test is not a radical departure from prior
interpretation, but rather a subtle shift that evolved out of the BIA’s prior
decisions on similar cases and is a reasoned interpretation, which is
therefore entitled to deference.”); Mendez-Barrera v. Holder, 602 F.3d 21,
26 (1st Cir. 2010); Castillo-Arias v. U.S. Att’y Gen., 446 F.3d at 1197.
Our interpretation of the phrase “membership in a particular social
group” incorporates the common immutable characteristic standard set
forth in Matter of Acosta, 19 I&N Dec. at 233, because members of a
particular social group would suffer significant harm if asked to give up
their group affiliation, either because it would be virtually impossible to do
so or because the basis of affiliation is fundamental to the members’
_______________________________
adopt the term “social distinction,” our use of the term differs from that proposed by the
DHS on appeal and at oral argument. In addition, we recognize that the DHS’s proposed
test also included a separate requirement that the social group must exist independently of
the fact of persecution. However, this criterion is well established in our prior precedents
and is already a part of the social group analysis. See Matter of A-M-E- & J-G-U-,
24 I&N Dec. at 74; see also Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (“[A]
‘particular social group’ must exist independently of the persecution suffered by the
applicant for asylum.”).

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identities or consciences. Our interpretation also encompasses the
underlying rationale of both the “particularity” and “social distinction”
tests.
The “particularity” requirement relates to the group’s boundaries or, as
earlier court decisions described it, the need to put “outer limits” on the
definition of a “particular social group.” See Castellano-Chacon v. INS,
341 F.3d 533, 549 (6th Cir. 2003); Sanchez-Trujillo v. INS, 801 F.2d at
1576. The particular social group analysis does not occur in isolation, but
rather in the context of the society out of which the claim for asylum arises.
Thus, the “social distinction” requirement considers whether those with a
common immutable characteristic are set apart, or distinct, from other
persons within the society in some significant way. In other words, if the
common immutable characteristic were known, those with the characteristic
in the society in question would be meaningfully distinguished from those
who do not have it. A viable particular social group should be perceived
within the given society as a sufficiently distinct group. The members of a
particular social group will generally understand their own affiliation with
the grouping, as will other people in the particular society.12
Literal or “ocular” visibility is not, and never has been, a prerequisite
for a viable particular social group. See, e.g., Umana-Ramos v. Holder, 724
F.3d at 672 (interpreting social visibility “to refer to the social salience of
the group in a society, or in other words, whether the set of individuals with
the shared characteristic would be perceived as a group by society”); cf.
Valdiviezo-Galdamez II, 663 F.3d at 604; Gatimi v. Holder, 578 F.3d at
615. An immutable characteristic may be visible to the naked eye, and it is
possible that a particular social group could be set apart within a given
society based on such visible characteristics. However, our use of the term
“social visibility” was not intended to limit relief solely to those with
outwardly observable characteristics. Such a literal interpretation would be
inconsistent with the principles of refugee protection underlying the Act
and the Protocol.
In fact, we have recognized particular social groups that are clearly not
ocularly visible. See, e.g., Matter of Kasinga, 21 I&N Dec. 357, 365–66
(BIA 1996) (determining that young tribal women who are opposed to
female genital mutilation (“FGM”) constitute a particular social group);

12
Although members of a particular social group will generally understand their own
affiliation with the group, such self-awareness is not a requirement for the group’s
existence. See, e.g., Henriquez-Rivas v. Holder, 707 F.3d at 1089 (“[F]or example, an
infant may not be aware of race, sex, or religion.”). Nevertheless, as a practical matter,
this point is of little import because the applicants in removal proceedings are generally
professing their membership in these groups in the process of seeking asylum.

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Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822–23 (BIA 1990) (holding
that homosexuals in Cuba were shown to be a particular social group);
Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988) (holding that former
national police members could be a particular social group in certain
circumstances). Our precedents have collectively focused on the extent to
which the group is understood to exist as a recognized component of the
society in question. See Matter of E-A-G-, 24 I&N Dec. at 594 (describing
social visibility as “the extent to which members of a society perceive those
with the characteristic in question as members of a social group”).

2. “Particularity”

While we addressed the immutability requirement in Acosta, the term
“particularity” is included in the plain language of the Act and is consistent
with the specificity by which race, religion, nationality, and political
opinion are commonly defined. 13 The Tenth Circuit recently noted that
“the particularity requirement flows quite naturally from the language of
the statute, which, of course, specifically refers to membership in a
‘particular social group.’” Rivera-Barrientos v. Holder, 666 F.3d at 649.
A particular social group must be defined by characteristics that provide
a clear benchmark for determining who falls within the group. Matter of
A-M-E- & J-G-U-, 24 I&N Dec. at 76 (holding that wealthy Guatemalans
lack the requisite particularity to be a particular social group). It is critical
that the terms used to describe the group have commonly accepted
definitions in the society of which the group is a part. Id. (observing that
the concept of wealth is too subjective to provide an adequate benchmark
for defining a particular social group).
The group must also be discrete and have definable boundaries—it
must not be amorphous, overbroad, diffuse, or subjective. See Ochoa
v. Gonzales, 406 F.3d 1166, 1170–71 (9th Cir. 2005) (stating that a
particular social group must be narrowly defined and that major segments
of the population will rarely, if ever, constitute a distinct social group). The
particularity requirement clarifies the point, at least implicit in earlier
case law, that not every “immutable characteristic” is sufficiently precise
to define a particular social group. See, e.g., Escobar v. Gonzales, 417
F.3d 363, 368 (3d Cir. 2005) (finding the characteristics of poverty,

13
However, there is a critical difference between a political opinion or religious belief,
which may in theory be entirely personal and idiosyncratic, and membership in a
particular social group, which requires that others in the society share the characteristics
that define the group.

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homelessness, and youth to be “too vague and all encompassing” to set
perimeters for a protected group within the scope of the Act).

3. “Social Distinction”

Our definition of “social visibility” has emphasized the importance of
“perception” or “recognition” in the concept of “particular social group.”
See Matter of H-, 21 I&N Dec. 337, 342 (BIA 1996) (stating that in Somali
society, clan membership is a “highly recognizable” characteristic that is
“inextricably linked to family ties”). The term was never meant to be read
literally. The renamed requirement “social distinction” clarifies that social
visibility does not mean “ocular” visibility—either of the group as a whole
or of individuals within the group—any more than a person holding a
protected religious or political belief must be “ocularly” visible to others in
society. See, e.g., Henriquez-Rivas v. Holder, 707 F.3d at 1087–89. Social
distinction refers to social recognition, taking as its basis the plain
language of the Act—in this case, the word “social.” To be socially
distinct, a group need not be seen by society; rather, it must be perceived
as a group by society. Matter of C-A-, 23 I&N Dec. at 956–57 (citing
UNHCR Guidelines, supra). Society can consider persons to comprise a
group without being able to identify the group’s members on sight.
The examples in Matter of Kasinga, Matter of Toboso-Alfonso, and
Matter of Fuentes, illustrate this point. It may not be easy or possible to
identify who is opposed to FGM, who is homosexual, or who is a former
member of the national police. These immutable characteristics are
certainly not ocularly visible. Nonetheless, a society could still perceive
young women who oppose the practice of FGM, homosexuals, or former
members of the national police to comprise a particular social group for a
host of reasons, such as sociopolitical or cultural conditions in the country.
For this reason, the fact that members of a particular social group may
make efforts to hide their membership in the group to avoid persecution
does not deprive the group of its protected status as a particular social
group. See Rivera-Barrientos v. Holder, 666 F.3d at 652 (stating that the
social distinction requirement “does not exclude groups whose members
might have some measure of success in hiding their status in an attempt to
escape persecution”).
The Third Circuit has indicated that it was “hard-pressed to discern
any difference between the requirement of ‘particularity’ and the
discredited requirement of ‘social visibility.’” Valdiviezo-Galdamez II, 663
F.3d at 608. We respectfully disagree. As recognized by other courts,
there is considerable overlap between the “social distinction” and
“particularity” requirements, which has resulted in confusion. See, e.g.,

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Henriquez-Rivas v. Holder, 707 F.3d at 1090 (“Admittedly, both BIA and
our own precedent have blended the ‘social visibility’ and ‘particularity’
analysis . . . .”). “Particularity” remains essential in the interpretation of the
phrase “particular social group,” especially in the analysis of broadly
defined social groups.
The “social distinction” and “particularity” requirements each
emphasize a different aspect of a particular social group. They overlap
because the overall definition is applied in the fact-specific context of an
applicant’s claim for relief. While “particularity” chiefly addresses the
“outer limits” of a group’s boundaries and is definitional in nature, see
Castellano-Chacon v. INS, 341 F.3d at 549, this question necessarily occurs
in the context of the society in which the claim for asylum arises, see
Matter of S-E-G-, 24 I&N Dec. at 584 (inquiring whether the group can
be described in sufficiently distinct terms that it “would be recognized,
in the society in question, as a discrete class of persons”). Societal
considerations have a significant impact on whether a proposed group
describes a collection of people with appropriately defined boundaries and
is sufficiently “particular.” Similarly, societal considerations influence
whether the people of a given society would perceive a proposed group as
sufficiently separate or distinct to meet the “social distinction” test.
For example, in an underdeveloped, oligarchical society, “landowners”
may be a sufficiently discrete class to meet the criterion of particularity, and
the society may view landowners as a discrete group, sufficient to meet the
social distinction test. However, such a group would likely be far too
amorphous to meet the particularity requirement in Canada, and Canadian
society may not view landowners as sufficiently distinct from the rest of
society to satisfy the social distinction test. In analyzing whether either of
these hypothetical claims would establish a particular social group under
the Act, an Immigration Judge should make findings whether “landowners”
share a common immutable characteristic, whether the group is discrete or
amorphous, and whether the society in question considers “landowners” as
a significantly distinct group within the society. Thus, the concepts may
overlap in application, but each serves a separate purpose.

4. Society’s Perception

The Ninth Circuit has recently observed that neither it nor the Board
“has clearly specified whose perspectives are most indicative of society’s
perception of a particular social group.” Henriquez-Rivas v. Holder, 707
F.3d at 1089 (suggesting that “the perception of the persecutors may matter
the most” in determining a society’s perception of a particular social
group); see also Rivera-Barrientos v. Holder, 666 F.3d at 650–51

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(referencing the relevant society as both “citizens of the applicant’s
country” and “the applicant’s community”). Interpreting “membership in a
particular social group” consistently with the other statutory grounds within
the context of refugee protection, we clarify that a group’s recognition for
asylum purposes is determined by the perception of the society in question,
rather than by the perception of the persecutor.
Defining a social group based on the perception of the persecutor is
problematic for two significant reasons. First, it is important to distinguish
between the inquiry into whether a group is a “particular social group” and
the question whether a person is persecuted “on account of” membership
in a particular social group. In other words, we must separate the
assessment whether the applicant has established the existence of one of
the enumerated grounds (religion, political opinion, race, ethnicity, and
particular social group) from the issue of nexus. The structure of the Act
supports preserving this distinction, which should not be blurred by
defining a social group based solely on the perception of the persecutor.
Second, defining a particular social group from the perspective of the
persecutor is in conflict with our prior holding that “a social group cannot
be defined exclusively by the fact that its members have been subjected to
harm.” Matter of A-M-E- & J-G-U-, 24 I&N Dec. at 74. The perception of
the applicant’s persecutors may be relevant, because it can be indicative of
whether society views the group as distinct. However, the persecutors’
perception is not itself enough to make a group socially distinct, and
persecutory conduct alone cannot define the group. Id.; see also, e.g.,
Henriquez-Rivas v. Holder, 707 F.3d at 1102 (Kozinski, C.J., dissenting)
(“Defining a social group in terms of the perception of the persecutor risks
finding that a group exists consisting of a persecutor’s enemies list.”);
Mendez-Barrera v. Holder, 602 F.3d at 27 (“The relevant inquiry is
whether the social group is visible in the society, not whether the alien
herself is visible to the alleged persecutors.”).
For example, a proposed social group composed of former employees of
a country’s attorney general may not be valid for asylum purposes.
Although such a shared past experience is immutable and the group is
sufficiently discrete, the employees may not consider themselves a separate
group within the society, and the society may not consider these employees
to be meaningfully distinct within society in general. Nevertheless, such a
social group determination must be made on a case-by-case basis, because
it is possible that under certain circumstances, the society would make such
a distinction and consider the shared past experience to be a basis for
distinction within that society.
The former employees of the attorney general may not be considered a
group by themselves or by society unless and until the government begins

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persecuting them. Upon their maltreatment, it is possible that these people
would experience a sense of “group,” and society would discern that this
group of individuals, who share a common immutable characteristic, is
distinct in some significant way. See, e.g., Sepulveda v. Gonzales, 464 F.3d
770 (regarding a social group consisting of former employees of the
Colombia Attorney General’s Office); see also Cece v. Holder, 733 F.3d at
671 (recognizing that “[a] social group ‘cannot be defined merely by the
fact of persecution’ or ‘solely by the shared characteristic of facing dangers
in retaliation for actions they took against alleged persecutors,’” but that
the shared trait of persecution does not disqualify an otherwise valid social
group (quoting Jonaitiene v. Holder, 660 F.3d 267, 271–72 (7th Cir.
2011))). The act of persecution by the government may be the catalyst that
causes the society to distinguish the former employees in a meaningful way
and consider them a distinct group, but the immutable characteristic of their
shared past experience exists independent of the persecution.
The persecutor’s actions or perceptions may also be relevant in cases
involving persecution on account of “imputed” grounds, such as where one
is erroneously thought to hold particular political opinions or mistakenly
believed to be a member of a particular social group. See, e.g., Matter of
S-P-, 21 I&N Dec. 486, 489 (BIA 1996); Matter of A-G-, 19 I&N Dec. 502,
507 (BIA 1987). For example, an individual may present a valid asylum
claim if he is incorrectly identified as a homosexual by a government
that registers and maintains files on homosexuals―in a society that
considers homosexuals a distinct group united by a common immutable
characteristic. In such a case, the social group exists independent of the
persecution, and the perception of the persecutor is relevant to the issue of
nexus (whether the persecution was or would be on account of the
applicant’s imputed homosexuality).
Persecution limited to a remote region of a country may invite an
inquiry into a more limited subset of the country’s society, such as in
Matter of Kasinga, 21 I&N Dec. at 366, where we considered a particular
social group within a tribe. Cf. Henriquez-Rivas v. Holder, 707 F.3d at
1089 (“Society in general may also not be aware of a particular religious
sect in a remote region.”). However, the refugee analysis must still
consider whether government protection is available, internal relocation is
possible, and persecution extends countrywide. Section 101(a)(42) of the
Act; Gambashidze v. Ashcroft, 381 F.3d 187, 192–94 (3d Cir. 2004);
Abdille v. Ashcroft, 242 F.3d at 496; Matter of C-A-L-, 21 I&N Dec. 754,
757–58 (BIA 1997). Only when the inquiry involves the perception of the
society in question will the “membership in a particular social group”
ground of persecution be equivalent to the other enumerated grounds of
persecution.

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C. Evidentiary Burdens

The respondent argues that a particular social group interpretation that
requires more than the analysis set forth in Matter of Acosta imposes
significant burdens on the applicant and introduces subjectivity to the
analysis. Such concerns are based on an overbroad reading of the particular
social group ground of persecution. In all asylum and withholding of
removal cases, including those involving the other grounds of persecution,
an applicant is required to establish the existence of the underlying basis for
the alleged persecution. Sections 208(b)(1)(B), 241(b)(3)(C) of the Act,
8 U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C) (2012).
For example, when an applicant makes a claim of persecution based on
political opinion or religion, he or she is required to provide evidence that
the claimed political or religious group exists and is recognized as such in
the relevant society. See Sandie v. Att’y Gen. of U.S., 562 F.3d 246, 253
(3d Cir. 2009) (denying relief where the applicant failed to establish the
existence, nature, and activities of a secret society he claimed to fear);
see also, e.g., Aden v. Holder, 589 F.3d 1040, 1043–46 (9th Cir. 2009)
(denying relief where the applicant failed to adequately establish the
existence of a minority clan in Somalia by providing evidence “such
as scholarly sources, ethnological studies, or witnesses”); Onsongo
v. Gonzales, 457 F.3d 849, 855 (8th Cir. 2006) (denying relief where the
applicant failed to adequately establish the existence of a political party).
Likewise, the applicant has the burden to establish a claim based on
membership in a particular social group and will be required to present
evidence that the proposed group exists in the society in question. The
evidence available in any given case will certainly vary. However, a
successful case will require evidence that members of the proposed
particular social group share a common immutable characteristic, that the
group is sufficiently particular, and that it is set apart within the society in
some significant way. Evidence such as country conditions reports, expert
witness testimony, and press accounts of discriminatory laws and policies,
historical animosities, and the like may establish that a group exists and is
perceived as “distinct” or “other” in a particular society. Thus, when the
requirements for “membership in a particular social group” are consistent
with the other grounds of persecution, the overall burdens are equivalent to
those placed on applicants asserting claims based on the other grounds.

D. Consistency with Prior Board Precedent

In its decision, the Third Circuit declined to afford Chevron deference to
our prior interpretation of the requirements for a particular social group

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because it perceived them to be inconsistent with our past decisions, in
particular Matter of Kasinga, Matter of Toboso-Alfonso, and Matter of
Fuentes. Valdiviezo-Galdamez II, 663 F.3d at 604, 607. In clarifying that
“ocular” visibility is not required, we consider our interpretation of the
phrase “membership in a particular social group” to be consistent with our
prior case law.
In Kasinga and Toboso-Alfonso, we found that each applicant
established an immutable characteristic in keeping with the Acosta
standard, and we held that they established viable particular social groups.
Matter of Kasinga, 21 I&N Dec. at 365–66 (young women of the
Tchamba-Kunsuntu Tribe who had not been subjected to FGM, as practiced
by that tribe, and who opposed the practice); Matter of Toboso-Alfonso,
20 I&N Dec. at 822–23 (persons identified as homosexuals by the Cuban
Government).
The Third Circuit recognized that the members of each of these groups
“have characteristics which are completely internal to the individual and
cannot be observed or known by other members of the society in question
(or even other members of the group) unless and until the individual
member chooses to make that characteristic known.” Valdiviezo-Galdamez
II, 663 F.3d at 604. However, the unobservable nature of the immutable
characteristics involved in Kasinga and Toboso-Alfonso did not preclude
the societies in question from considering certain women of the tribe or
homosexuals, respectively, as distinct groups that were set apart within the
society.
In Matter of Toboso-Alfonso, the Government did not challenge
the Immigration Judge’s finding that homosexuality was an immutable
characteristic. The proposed group in that case, homosexuals in Cuba, was
sufficiently particular because it was a discrete group with well-defined
boundaries. The group was based on an immutable characteristic that
provided an adequate benchmark for defining the members of the group,
and it did not rely on a vague or subjective characteristic. The record
established the existence of a Cuban governmental office that registered
and maintained files on homosexuals. Matter of Toboso-Alfonso, 20 I&N
Dec. at 820, 822. The applicant testified that residents threw eggs and
tomatoes at him when he was being forced to leave the country because of
his status as a homosexual, and he submitted evidence that suspected
homosexuals were subjected to physical examinations, interrogations, and
beatings. Id. at 820–21. On those facts, it was clear that people in Cuban
society considered homosexuals to be a discrete and distinct group within
the society and that a homosexual in Cuba would have generally
understood his or her affiliation with the grouping. The group was
therefore particular and socially distinct within the society in question.

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In Matter of Kasinga, 21 I&N Dec. at 365–66, we found that the social
group met the immutable characteristic test set forth in Acosta. The
proposed group of young women of a certain tribe who had not been
subjected to FGM and opposed the practice was sufficiently particular
because it presented a group that had clear and definable boundaries. The
record contained objective evidence regarding the prevalence of FGM in
the society in question and the expectation that women of the tribe would
undergo FGM. Id. at 361, 367. Based on these facts, we found that people
in the Tchamba-Kunsuntu Tribe would generally consider women who had
not undergone FGM and opposed the practice to be a discrete and distinct
group that was set apart in a significant way from the rest of the society.
Such women would clearly understand their affiliation with this grouping.
Thus, the proposed group was particular and was perceived as socially
distinct within the society in question.
In Matter of Fuentes, the fundamental characteristic at issue was also
not visible. However, we did not hold that “former member[s] of the
national police of El Salvador” necessarily constituted a viable particular
social group. Matter of Fuentes, 19 I&N Dec. at 662. Rather, we merely
recognized that the applicant’s status as a former policeman was an
immutable characteristic because it was beyond his capacity to change, and
we noted that it is “possible that mistreatment occurring because of such a
status in appropriate circumstances could be found to be persecution on
account of political opinion or membership in a particular social group.”
Id. (emphasis added). The applicant in Fuentes presented some evidence of
social distinction, because the national police played a high-profile role in
combating guerrilla violence, and a witness testified that “guerrillas had the
names of the people who had been in the service” and targeted and killed
former service members. Id. at 659, 661. However, because we held that
the applicant did not show that the harm he feared bore a nexus to his status
as a former member of the national police, we did not fully assess the
factors that underlie particularity and social distinction. Id. at 661–63.
In Matter of C-A-, we found that “noncriminal drug informants working
against the Cali drug cartel” in Colombia were not a particular social group,
and we emphasized that “[s]ocial groups based on innate characteristics
such as sex or family relationship are generally easily recognizable and
understood by others to constitute social groups.” Matter of C-A-, 23 I&N
Dec. at 957, 959–60 (finding that members of the applicant’s society would
not “recognize a social group based on informants who act out of a sense of
civic duty rather than for compensation”). However, we also included
language highlighting the relative ocular invisibility of confidential
informants. Id. at 959–60. To the extent that Matter of C-A- has been

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interpreted as requiring literal or “ocular” visibility, we now clarify that it
does not.
Since Matter of Acosta, we have also recognized “particular social
groups” in cases involving immutable characteristics within discrete
segments of the population. Matter of V-T-S-, 21 I&N Dec. 792, 798 (BIA
1997) (Filipinos of mixed Filipino-Chinese ancestry); Matter of H-, 21 I&N
Dec. at 342–43 (members of the Marehan subclan of Somalia who share
ties of kinship and linguistic commonalities). The particular social groups
in these cases satisfied the social distinction test because the record in each
case contained objective evidence establishing the existence of the groups
as distinct within the society in question. Matter of V-T-S-, 21 I&N Dec. at
798 (citing the State Department Profile on the Philippines as stating
that approximately 1.5% of the Philippine population has an identifiable
Chinese background); Matter of H-, 21 I&N Dec. at 342–43 (citing country
reports discussing various clans).
Our interpretation of the phrase “membership in a particular social
group” originated with the immutable characteristics test in Matter of
Acosta. In response to the evolution of social group claims presented,
we announced the addition of the “particularity” and “social visibility”
requirements in Matter of S-E-G- and Matter of E-A-G-. Our transition
to the term “social distinction” is intended to clarify the requirements
announced in those cases; it does not mark a departure from established
principles. We would reach the same result in Matter of S-E-G- and Matter
of E-A-G- if we were to apply the term “social distinction” rather than
“social visibility.” Therefore, we need not revisit cases where we used
the term “social visibility.” See INS v. Abudu, 485 U.S. 94, 107 (1998);
Matter of S-Y-G-, 24 I&N Dec. 247, 257 (BIA 2007) (explaining that an
incremental or incidental change does not meet the requirements for
untimely motions to reopen and that even a change in law is insufficient
absent evidence that the prior version was meaningfully different); Matter
of G-D-, 22 I&N Dec. 1132, 1135 (BIA 1999) (stating that an incremental
development in case law does not warrant sua sponte reopening).14

E. International Interpretations

Although the statutory terms “refugee” and “particular social
group” occur against the backdrop of the Protocol and the Convention,

14
The clarifications provided by our decision in this matter should only alter the result in
cases where a literal or “ocular” visibility standard was improperly determinative of the
outcome in the case.

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international interpretations of those terms are not controlling here. INS
v. Aguirre-Aguirre, 526 U.S. at 427–28.
We recognize that our interpretation of the ambiguous phrase “particular
social group” differs from the approach set forth in the UNHCR’s
social group guidelines, which sought to reconcile two international
interpretations that had developed over the years. UNHCR Guidelines,
supra, at 2–3; see also Valdiviezo-Galdamez II, 663 F.3d at 615 n.4
(Hardiman, J., concurring). The UNHCR advocates an alternative
approach, which permits an individual to establish a particular social group
based on “protected characteristics” or “social perception” but does not
require both. UNHCR Guidelines, supra, at 2–3. However, the European
Union adopted a “particular social group” definition that departs from the
UNHCR Guidelines by requiring a social group to have both an
immutable/fundamental characteristic and social perception.15
While the views of the UNHCR are a useful interpretative aid, they
are “not binding on the Attorney General, the BIA, or United States
courts.” INS v. Aguirre-Aguirre, 526 U.S. at 427. Indeed, the UNHCR has
disclaimed that its views have such force and has taken the position that the
determination of “refugee” status is left to each contracting State. Id. at 428
(citing Office of the UNHCR, Handbook on Procedures and Criteria for
Determining Refugee Status Under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees para. II, at 1 (Geneva, 1979));
see also INS v. Cardoza-Fonseca, 480 U.S. at 439 n.22.
We believe that our interpretation in Matter of S-E-G- and Matter of
E-A-G-, as clarified, more accurately captures the concepts underlying the
United States’ obligations under the Protocol and will ensure greater
15
Article 10.1(d) of the European Union’s guidelines states:

[A] group shall be considered to form a particular social group where in particular:

—members of that group share an innate characteristic, or a common background
that cannot be changed, or share a characteristic or belief that is so fundamental
to identity or conscience that a person should not be forced to renounce it, and

—that group has a distinct identity in the relevant country, because it is perceived
as being different by the surrounding society.

Directive 2011/95/EU, of the European Parliament and of the Council of 13 December
2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons
as Beneficiaries of International Protection, for a Uniform Status for Refugees or for
Persons Eligible for Subsidiary Protection, and for the Content of the Protection
Granted (recast), 2011 O.J. (L 337) 9, 16, available at http://www.refworld.org/cgi-
bin/texis/vtx/rwmain?docid=4f197df02 (emphasis added).

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consistency in the adjudication of asylum claims under the Act. See Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967;
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837.
Unlike the UNHCR’s alternative approach, we conclude that a particular
social group must satisfy both the “protected characteristic” and “social
perception” approaches, in addition to the particularity requirement, as
described above.

V. APPLICATION TO THE RESPONDENT
In our prior decision in this case, we rejected the respondent’s
gang-related claim based on the reasoning set forth in Matter of S-E-G-
and Matter of E-A-G-. In Matter of S-E-G-, 24 I&N Dec. at 582, we
denied a gang-related asylum claim asserting a proposed social group of
“Salvadoran youths who have resisted gang recruitment, or family members
of such Salvadoran youth.” The applicant’s membership in a particular
social group was not established because he did not show that the proposed
group was sufficiently particular or socially distinct, that is, recognized in
the society in question as a discrete class of persons. Id. at 584–87. His
fear was based on his individual response to the gang’s efforts to increase
its ranks, not on persecution aimed at his membership in a group. See INS
v. Elias-Zacarias, 502 U.S. at 483 (rejecting a guerrilla recruitment claim
where the applicant failed to establish that the persecutor had a motive
other than increasing the size of its forces). Similarly, the applicant in
Matter of E-A-G- did not establish that the proposed group, “persons
resistant to gang membership,” was a particular social group. Matter of
E-A-G-, 24 I&N Dec. at 594–95 (“The focus is not with statistical or
actuarial groups, or with artificial group definitions. Rather, the focus is on
the existence and visibility of the group in the society in question and on
the importance of the pertinent group characteristic to the members of the
group.”).16
While there is no universal definition of a “gang,” it is generally
understood to be “a criminal enterprise having an organizational structure,
acting as a continuing criminal conspiracy, which employs violence

16
We also rejected the applicant’s second proposed social group of “young persons who
are perceived to be affiliated with gangs.” Matter of E-A-G-, 24 I&N Dec. at 593. We
held that membership, or perceived membership, in a criminal gang cannot constitute a
particular social group because “[t]reating affiliation with a criminal organization as
being protected membership in a social group is inconsistent with the principles
underlying the bars to asylum and withholding of removal based on criminal behavior.”
Id. at 596; see also Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007).

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and any other criminal activity to sustain the enterprise.” UNHCR,
Guidance Note on Refugee Claims Relating to Victims of Organized Gangs
1 n.3 (Mar. 31, 2010), available at http://www.unhcr.org/refworld/docid
/4bb21fa02.html (quoting the Federal Bureau of Investigation’s definition
of a gang).
The UNHCR has recognized that “[g]ang-related violence may be
widespread and affect large segments of society, in particular where the
rule of law is weak. Ordinary people may be exposed to gang-violence
simply because of being residents of areas controlled by gangs.” Id. para.
10, at 4. Although the UNHCR indicates that certain marginalized social
groups may be specifically targeted by gangs, it also noted that “a
key function of gangs is criminal activity. Extortion, robbery, murder,
prostitution, kidnapping, smuggling and trafficking in people, drugs and
arms are common practices employed by gangs to raise funds and to
maintain control over their respective territories.” Id. para. 8, at 3.
In Matter of S-E-G-, 24 I&N Dec. at 588, we also noted that the
evidence of record indicated that El Salvador suffered from widespread
gang violence, stating that “victims of gang violence come from all
segments of society, and it is difficult to conclude that any ‘group,’ as
actually perceived by the criminal gangs, is much narrower than the general
population of El Salvador.” Although this evidence of indiscriminate gang
violence and civil strife was largely dispositive of the applicant’s ability to
establish the proposed group’s existence in the society in question, it also
undermined his attempt to establish a nexus between any past or feared
harm and a protected ground under the Act.
Against the backdrop of widespread gang violence affecting vast
segments of the country’s population, the applicant in Matter of S-E-G-
could not establish that he had been targeted on a protected basis. See
Al-Fara v. Gonzales, 404 F.3d at 740; Abdille v. Ashcroft, 242 F.3d at
494−95; Matter of N-M-A-, 22 I&N Dec. at 323, 326. Although he was
subjected to one of the many different criminal activities that the gang used
to sustain its criminal enterprise, he did not demonstrate that he was more
likely to be persecuted by the gang on account of a protected ground than
was any other member of the society. Matter of S-E-G-, 24 I&N Dec. at
587 (“[G]angs have directed harm against anyone and everyone perceived
to have interfered with, or who might present a threat to, their criminal
enterprises and territorial power.”).
The prevalence of gang violence in many countries is a large societal
problem. The gangs may target one segment of the population for
recruitment, another for extortion, and yet others for kidnapping, trafficking
in drugs and people, and other crimes. Although certain segments of a
population may be more susceptible to one type of criminal activity than

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another, the residents all generally suffer from the gang’s criminal efforts to
sustain its enterprise in the area. A national community may struggle with
significant societal problems resulting from gangs, but not all societal
problems are bases for asylum. See Konan v. Att’y Gen. of U.S., 432 F.3d
at 506; Al Fara v. Gonzales, 404 F.3d at 740; Abdille v. Ashcroft, 242 F.3d
at 494–95; see also Matter of Sosa Ventura, 25 I&N Dec. at 394
(discussing the history of Temporary Protected Status and the fact that
individuals fleeing life-threatening natural disasters or a generalized state of
violence were not entitled to either asylum or withholding of removal).
Congress may choose to provide relief to those suffering from difficult
situations not covered by asylum and withholding of removal. See, e.g.,
section 244(a)(1) of the Act, 8 U.S.C. § 1254a(a)(1) (2012); Ruth Ellen
Wasem & Karma Ester, Cong. Research Serv., RS 20844, Temporary
Protected Status: Current Immigration Policy and Issues 2 (2010),
available at http://fpc.state.gov/documents/organization/137267.pdf.
Nevertheless, we emphasize that our holdings in Matter of S-E-G- and
Matter of E-A-G- should not be read as a blanket rejection of all factual
scenarios involving gangs. Matter of S-E-G-, 24 I&N Dec. at 587
(recognizing that the evidence of record did not “indicate that Salvadoran
youth who are recruited by gangs but refuse to join (or their family
members) would be ‘perceived as a group’ by society, or that these
individuals suffer from a higher incidence of crime than the rest of the
population”). Social group determinations are made on a case-by-case
basis. Matter of Acosta, 19 I&N Dec. at 233. For example, a factual
scenario in which gangs are targeting homosexuals may support a particular
social group claim. While persecution on account of a protected ground
cannot be inferred merely from acts of random violence and the existence
of civil strife, it is clear that persecution on account of a protected ground
may occur during periods of civil strife if the victim is targeted on
account of a protected ground. See Konan v. Att’y Gen. of U.S., 432 F.3d at
506; Matter of Villalta, 20 I&N Dec. 142, 147 (BIA 1990); see also, e.g.,
Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001) (“Asylum generally is not
available to victims of civil strife, unless they are singled out on account of
a protected ground.”).

VI. CONCLUSION
We interpret the “particular social group” ground of persecution in a
manner consistent with the other enumerated grounds of persecution in the
Act and clarify that our interpretation of the phrase “membership in a
particular social group” requires an applicant for asylum or withholding of
removal to establish that the group is (1) composed of members who share

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a common immutable characteristic, (2) defined with particularity, and
(3) socially distinct within the society in question. Not every “immutable
characteristic” is sufficiently precise to define a particular social group.
The additional requirements of “particularity” and “social distinction” are
necessary to ensure that the proposed social group is perceived as a distinct
and discrete group by society. We further clarify that a particular social
group does not require literal or “ocular” visibility.
The respondent has requested a remand and the DHS has expressed that
it has no opposition. Because the respondent’s proposed particular social
group has evolved during the pendency of his appeal, our guidance on
particular social group claims has been clarified since this case was last
before the Immigration Judge, and the Third Circuit has indicated that a
remand may be appropriate, we will remand this case. A remand will
enable the Immigration Judge to engage in any fact-finding that may be
necessary to resolve the issues in this case, consistent with standard
Immigration Court practice and procedure. See 8 C.F.R. § 1003.1(d)(3)(iv)
(discussing the Board’s limited fact-finding authority); see also Matter of
Jimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996) (recognizing that we
generally do not consider an issue raised for the first time on appeal).
Further, a remand is appropriate to allow the Immigration Judge
to revisit the issues of the respondent’s possible relocation and the
Honduran Government’s inability or unwillingness to control the gangs.
See Khan v. Att’y Gen. of U.S., 691 F.3d 488, 496 (3d Cir. 2012) (“The
source of the persecution must be the government or forces that ‘the
government is unwilling or unable to control.” (quoting Ahmed v. Keisler,
504 F.3d 1183, 1191 (9th Cir. 2007) (internal quotation marks omitted)));
8 C.F.R. § 1208.13(b)(1)(i)(B), (2)(ii), (3) (2013) (relating to an applicant’s
relocation). Although the Immigration Judge initially denied the
respondent’s asylum claim on these grounds, they were the basis on which
the Third Circuit granted his first petition for review and they have not
yet been resolved. See, e.g., Valdiviezo-Galdamez II, 663 F.3d at 588–89
& n.4; Valdiviezo-Galdamez I, 502 F.3d at 292–93.
The clarification and guidance provided by our decision in this matter
may have an impact on the validity of the respondent’s proposed group,
which, in turn, may affect whether any persecution would be “on account
of” his membership in such group.17 On remand, both parties will have

17
The DHS properly notes that the court’s decision in Valdiviezo-Galdamez I was
based on a modification to the respondent’s proposed particular social group. The court
omitted the “because they oppose the gangs” portion of the respondent’s proposed
group. Valdiviezo-Galdamez I, 502 F.3d at 290. The removal of the “opposition”
element materially changes the analysis of group composition and may affect the
(continued . . .)

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an opportunity to present updated country conditions evidence and
arguments regarding the respondent’s particular social group claim, and
the Immigration Judge may conduct further proceedings as is deemed
appropriate under the circumstances. Accordingly, the record will be
remanded to the Immigration Judge.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a
new decision.

_______________________________
Immigration Judge’s assessment whether persecution was or would be on account of the
respondent’s membership in the group he has proposed. Thus, the Immigration Judge
may address the issue of nexus on remand.

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