Persecution on the basis of membership in a particular group is, along with persecution on the basis of race, religion, nationality, or political opinion, a ground for granting asylum or withholding of removal. There is no statutory definition of “particular social group,” but the BIA has sensibly defined it as a group whose members share common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities.
If the ‘members’ of an alleged particular social group have no common characteristics they can’t constitute a group, and if they can change those characteristics—that is, cease to belong to the group—without significant hardship, they should be required to do so rather than be allowed to resettle in America if they do not meet the ordinary criteria for immigration to this country.
In general, membership in a criminal gang cannot constitute membership in a particular social group. This court stated in Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992),that whatever its precise scope, the term ‘particular social groups’ surely was not intended for the protection of members of the criminal class in this country, merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other. Being a member of a gang is not a characteristic that a person cannot change, or should not be required to change, provided that he can resign without facing persecution for doing so. But if he can’t resign, his situation is the same as that of a former gang member who faces persecution for having quit. A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group. On this ground this court previously held that a former member of a violent criminal Kenyan faction called the Mungiki was a member of a “particular social group,” namely former members of Mungiki. This court relied on Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006), which holds that former subordinates of the attorney general of Colombia who had information about the insurgents plaguing that nation constituted a particular social group. One could resign from the attorney general’s office but not from a group defined as former employees of the office.
Arteaga v. Mukasey, 511 F.3d 940, (9th Cir. 2007) states that participation in gang activity is not fundamental to gang members’ individual identities or consciences, and they are therefore ineligible for protection as members of a social group. But this was said in reference not to Arteaga’s status as a former gang member but to his possible status as a current member, for he had testified that he was still a member of the gang, though an inactive one. There are hints in the Arteaga opinion that being persecuted for being a former member of a gang should not be a basis for asylum or withholding of removal either. However, that is not Congress’s view. It has barred from seeking asylum or withholding of removal any person who faces persecution for having himself been a persecutor (a Nazi war criminal, for example) or who has committed a “serious nonpolitical crime. But it has said nothing about barring former gang members, perhaps because of ambiguity about what constitutes a “gang”; or because of the variety of activities, not all criminal, that some “gangs” engage in; or because of the different levels of participation, some innocuous, of members of some gangs.
Furthermore, the government’s contention, which violates the Chenery doctrine for arguing that the BIA’s decision should be affirmed on a ground not mentioned by the BIA, that a person can be a member of a particular social group only if a complete stranger could identify him or her as a member if the stranger encountered him or her in the street, because of his or her appearance, gait, speech pattern, behavior or other discernible characteristic is without merit. Even though this “social visibility” position has some judicial support, this court has rejected it as a misunderstanding of the use of “external” criteria to identify a social group. If society recognizes a set of people having certain common characteristics as a group, this is an indication that being in the set might expose one to special treatment, whether friendly or unfriendly. In our society, for example, redheads are not a group, but veterans are, even though a redhead can be spotted at a glance and a veteran can’t be. “Visibility” in the literal sense in which the BIA has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the BIA is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference.
The alternative argument that the category of nonassociated or disaffiliated persons in this context is far too unspecific and amorphous to be called a social group in support of why former gang members should not be considered members of a particular social group is without merit. There may be categories so ill-defined that they cannot be regarded as groups—the “middle class,” for example. But this problem is taken care of by the external criterion—if a Stalin or a Pol Pot decides to exterminate the bourgeoisie of their country, this makes the bourgeoisie “a particular social group,” which it would not be in a society that didn’t think of middleclass people as having distinctive characteristics; it would be odd to describe the American middle class as “a particular social group.” However, the petitioner in the instant case was a member of a specific, well-recognized, indeed notorious gang, the former members of which do not constitute a category far too unspecific and amorphous to be called a social group. It is neither unspecific nor amorphous. On the other hand, an “inactive” member of a gang is a status that could be thought to lend it a certain amorphousness.
The BIA has never given a reasoned explanation for why the statutory bars should be extended by administrative interpretation to former members of gangs. This court can imagine the BIA’s exercising its discretion to decide that a “refugee” (that is, a person eligible for asylum) whose claim for asylum is based on former membership in a criminal gang should not be granted asylum. The BIA has discretion to deny asylum to eligible persons subject to judicial review for abuse of discretion. But that was not the BIA’s ground in the instant case, and it could not have been. The petitioner is seeking not asylum but withholding of removal, and withholding of removal is mandatory if the applicant (unless he falls within the statutory exceptions establishes that if expelled from the United States he is more likely than not to be persecuted for a reason recognized in the immigration law as a proper ground for asylum or for withholding of removal. The reason for the difference is that an asylum seeker need prove only a well-founded fear of persecution. The applicant for withholding of removal must prove that he will (more likely than not) be persecuted. His danger is greater, and the BIA may not subject him to it if he meets the other criteria for withholding of removal.
Where the petitioner was a member of a violent criminal group for nine years, and where he is found to have committed violent acts while a member of the gang (as apparently he did, although the evidence is not entirely clear), he may be barred from the relief he seeks for reasons unrelated to whether he is a member of a “particular social group”; for remember the bar for aliens who commit a serious nonpolitical crime. The BIA must also determine whether the petitioner is more likely than not to be persecuted if he is returned to El Salvador. In this connection, this court notes with disapproval the immigration judge’s mention of a letter from the U.S. embassy in El Salvador stating implausibly that MS does not punish defectors whose defection was motivated by Christian beliefs. The letter had not been seen by the parties, just by the judge; and while he said that he wasn’t relying on it, this makes us wonder why he mentioned it. Should he wish to consider it on remand, he must give the petitioner an opportunity to respond to it. The petition is granted, the BIA’s decision vacated, and the case remanded.
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