Orellana-Monson v. Holder: The Fifth Circuit Accepts the BIA’s Particularity and Social Visibility Requirements for Defining Membership of a Particular Social Group in Asylum Claims

Facing death threats from the notorious Mara 18 gang, eleven-year-old José Orellana-Monson fled his home in El Salvador with his little brother Andrés in hopes of finding safety in the United States.[1.  Orellana-Monson v. Holder, 685 F.3d 511, 515 (5th Cir. 2012).]  Mara 18 operates with near impunity in El Salvador, recruiting children like José to work as drug dealers and murderers.[2. Id.]  When a local member of Mara 18, known only as Juan, tried to recruit José, the young boy said he was unsure about joining, fearing the potentially deadly consequences if he refused outright.[3. Id.]  Enraged by José’s response, Juan threatened to kill him.[4. Id.]  One night when José was home alone, Juan went to José’s house and forced him at gunpoint to rob a jewelry store.[5. Id.]  Fearing for her grandsons’ safety, José and Andrés’ grandmother arranged for them to flee to the United States, where their mother lived.[6. Id.] After swimming across the Rio Grande, José and Andrés waited next to a U.S. Border Patrol truck until they were found.[7. Id.]  Once detained, they maintained that they were eligible for asylum under the Immigration and Nationality Act (INA) because they would be persecuted in El Salvador for their membership in a particular social group.[8. Id.at 515-16, 519.]  José alleged that he faced persecution as a member of a social group consisting of Salvadoran young males, aged eight to fifteen years, who were recruited by Mara 18 but refused to join because of a principled opposition to gangs.[9. Id.at 516].  Andrés’ claim derived from that of his brother.[10. Id. Andrés’s proposed group was siblings of members of José’s group or, alternatively, José’s family member.  Id.]  The immigration judge found that the Orellana-Monsons did not belong to particular social groups subject to persecution, and the Board of Immigration Appeals (BIA) dismissed their appeal.[11. Id. A United States Court of Appeals for the Fifth Circuit panel vacated the BIA decision denying asylum and remanded the case to the BIA to explain its reasoning.  Id.at 516-17.  The court found it unclear whether the BIA had found that the petitioners were not members of a particular social group, that they did not fear persecution because of such membership, or both.  Id.at 517.  On remand, the BIA found that the petitioners’ groups did not possess the requisite particularity and social visibility and dismissed the appeal.  Id.  The Orellana-Monsons filed a petition for review.  Id.]  The Orellana-Monsons petitioned for review, claiming that the court erred by accepting this “drastic change” in the BIA’s standard for defining particular social groups, which now requires particularity and social visibility.[12. Id. at 516-17.]  The United States Court of Appeals for the Fifth Circuit held that the BIA’s new particularity and social visibility requirements for defining membership of a particular social group for asylum claims are valid and entitled to deference.  Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012).