Tumaini Temu v. Eric Holder, Jr. , 740 F.3d 887 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1192
TUMAINI GEOFREY TEMU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 29, 2013 Decided: January 16, 2014
Before KING, GREGORY, and AGEE, Circuit Judges.
Petition for review granted, order vacated, and case remanded
for further consideration consistent with this published
opinion. Judge Gregory wrote the majority opinion, in which
Judge King joined. Judge Agee wrote a dissenting opinion.
ARGUED: Katie Bukrinsky, Thomas Joseph Tynan, MCDERMOTT, WILL &
EMERY, LLP, Washington, D.C., for Petitioner. Woei-Tyng Daniel
Shieh, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Paul M. Thompson, Steven Hannes,
MCDERMOTT, WILL & EMERY LLP, Washington, D.C.; Stephen Dekovich,
CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, Washington, D.C., for
Petitioner. Stuart F. Delery, Acting Assistant Attorney
General, Civil Division, Francis W. Fraser, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Circuit Judge:
Tumaini Temu is a Tanzanian national who suffers from
severe bipolar disorder. In his home country, Mr. Temu was
tortured by nurses and prison guards because of his illness.
After entering the United States, he applied for asylum, arguing
that he was persecuted because of his membership in a particular
social group. The Board of Immigration Appeals (“BIA”) denied
his application, finding that Mr. Temu was not a member of a
social group under the Immigration and Nationality Act (“INA”),
and even if he was, Mr. Temu did not show that he was persecuted
because of membership in this group. Because we agree with
Mr. Temu that the BIA’s opinion rests on factual and legal
errors, we grant Mr. Temu’s petition for review, vacate the
BIA’s order, and remand for further proceedings consistent with
this opinion.
I.
The facts presented below are based on Mr. Temu’s
testimony, as well as testimony from two expert witnesses who
discussed Mr. Temu’s diagnosis and the conditions that
individuals with mental illness face in Tanzania. The IJ
credited the testimony of all three witnesses, and neither the
BIA nor the government dispute any of the facts presented.
2
Mr. Temu’s troubles began during his final year at the
University of Dar es Salaam, when his mother died in a car
accident. This spurred a mental breakdown that forced Mr. Temu
to leave school, and he experienced a series of similar episodes
that were later diagnosed as manifestations of bipolar disorder.
During his manic episodes, Mr. Temu believes he has superhuman
powers. He is visibly erratic and often walks into busy
intersections to direct traffic because he thinks he has the
ability to prevent car accidents. This behavior caught the
attention of Tanzanian officials who took him to Muhimbili
Hospital in Dar es Salaam, Tanzania, in 2003.
Mr. Temu’s admission to Muhimbili Hospital kicked off years
in asylums and prisons during which Mr. Temu suffered violent
physical abuse. At his asylum hearing, an expert witness
testified that Tanzanians consider mental illness to be
shameful. In Tanzanian culture, severe mental illness with
visibly erratic behavior is seen as a manifestation of demonic
possession. Tanzanians even have a label for the group,
referring to those with visibly severe mental illness as “mwenda
wazimu,” which means demon-possessed. The expert witness
testified that even medical professionals in Tanzania believe
that severe mental illness accompanied by erratic behavior is
caused by demonic possession. Laymen and doctors alike believe
that demonic possession is contagious. For this reason, even
3
though friends and family visited Mr. Temu during his first
hospitalization, they deserted him within months.
The nurses at Muhimbili Hospital treated Mr. Temu with
violence and abuse. Nurses tied Mr. Temu’s hands and feet for
five to seven hours a day, four days per week. When Mr. Temu’s
condition worsened, his “treatment” became more inhumane, as he
was bound and beaten with leather straps for eight hours per
day, five or six days per week. Hospital stints turned into
prison stints, and the abuse continued. Prison guards beat
Mr. Temu with a club about his elbows and feet four days per
week. The beatings were so severe that he could not walk.
The record is unequivocal about what motivated the nurses’
and guards’ behavior. Throughout all his hospitalizations, the
nurses referred to Mr. Temu as “mwenda wazimu.” The record also
shows that while binding Mr. Temu and beating him with leather
straps, the nurses said on multiple occasions, “this is how we
treat people who are mentally ill like you.” J.A. 135. In
prison, the guards also referred to Mr. Temu as “mwenda wazimu.”
All prisoners were beaten, but Mr. Temu received worse beatings.
However, other prisoners who also suffered from severe mental
illness were beaten as much as Mr. Temu.
Upon coming to the United States, Mr. Temu applied for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). 8 U.S.C. §§ 1158(b)(1)(A),
4
1231(b)(3)(A); 8 C.F.R. § 208.16. Mr. Temu argued that under 8
U.S.C. § 1101(a)(42), he faced severe persecution because of his
membership in the social group of individuals with bipolar
disorder who exhibit erratic behavior. The immigration judge
(“IJ”) denied Mr. Temu’s asylum and withholding claims. In a
finding adopted by the BIA, the IJ concluded that Mr. Temu’s
proposed group lacks the elements of immutability, particularity
and social visibility necessary to qualify as a particular
social group under the INA. In addition, both the IJ and BIA
concluded that even accepting Mr. Temu’s proposed group, he did
not show that he was persecuted because of his membership in
this group. However, the IJ granted Mr. Temu CAT relief. In
doing so, the IJ and BIA found that Mr. Temu was tortured by
nurses and prison guards because he was mentally ill.
Mr. Temu filed a timely appeal of the BIA’s decision,
arguing that it committed error in denying him asylum and
withholding of removal. We have jurisdiction to hear his case
under 8 U.S.C. § 1252.
II.
Individuals qualify for asylum if they were persecuted “on
account of . . . membership in a particular social group.”
5
8 U.S.C. § 1101(a)(42)(A). 1 This appeal raises two questions.
First, we must analyze whether Mr. Temu’s proposed group of
“individuals with bipolar disorder who exhibit erratic behavior”
qualifies as a “particular social group.” Second, we ask
whether Mr. Temu was persecuted because of membership in his
proposed group. Under Chevron, we give deference to the BIA’s
interpretation of the phrase “particular social group.” See
Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010) (citing
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984)).
However, in reviewing whether a group meets the BIA’s definition
of “particular social group,” we overturn a denial of asylum if
it is “manifestly contrary to the law and an abuse of
discretion.” 8 U.S.C. § 1252(b)(4)(D); see Zelaya v. Holder,
668 F.3d 159, 165 (4th Cir. 2012); Crespin-Valladares v. Holder,
632 F.3d 117, 124–126 (4th Cir. 2011). We uphold factual
findings unless no rational factfinder could agree with the
BIA’s position. Crespin-Valladares, 632 F.3d at 124.
1
Because Mr. Temu was granted CAT relief, his right to
remain in the United States is not in dispute. However, by
granting Mr. Temu CAT relief but not asylum, the BIA placed him
“in an unusual legal status.” Zuh v. Mukasey, 547 F.3d 504, 508
(4th Cir. 2008). Without asylum, Mr. Temu is not allowed to
become a lawful permanent resident, nor is he allowed to work
without yearly authorization. Id. For these reasons, we have
expressed hesitation in placing immigrants in this “unusual
legal status,” which essentially amounts to immigration limbo.
Id.
6
III.
We first consider the BIA’s conclusion that Mr. Temu was
not persecuted because of membership in his proposed group.
Because this is a factual finding, our task is not to decide how
we would rule in the first instance. Rather, we must uphold the
BIA’s finding unless no rational factfinder could reach the same
conclusion. See Crespin-Valladares, 632 F.3d at 124. In spite
of this stringent standard of review, we are compelled to vacate
because the BIA’s finding on nexus contains two logical
contradictions that no rational factfinder could hold.
First, it is impossible to square the BIA’s conclusion with
the undisputed facts of the case. The BIA credited Mr. Temu’s
testimony in its entirety, J.A. 151, and he testified not only
that nurses beat and bound him, but also that they explicitly
told him that “[t]his is how we treat people who are mentally
ill like you.” J.A. 135. Mr. Temu testified that in prison,
the guards beat all prisoners, but Mr. Temu was singled out for
worse beatings, and other prisoners with mental illness were
beaten as much as Mr. Temu. J.A. 137. Throughout his time in
prisons and hospitals, the nurses and guards referred to him as
“mwenda wazimu.” J.A. 135–37. We fail to see how a rational
factfinder could simultaneously credit these facts and also
conclude that Mr. Temu was not persecuted because of his mental
illness and its manifestations. It is difficult to imagine
7
evidence that is more persuasive and unequivocal than a
persecutor directly telling a victim, “[t]his is how we treat
mentally ill people like you.” J.A. 135.
Second, the BIA’s nexus finding and CAT finding are at
logical loggerheads. The BIA adopted the IJ’s finding that
“there is no nexus between the respondent’s mistreatment and his
defined particular social group, which is defined in part by
bipolar disorder.” J.A. 74. That is, even accepting Mr. Temu’s
proposed group, the BIA concluded that his beatings were due to
his erratic behavior, not his bipolar disorder per se. Mere
pages later, however, the IJ granted CAT relief, finding that
Mr. Temu “was singled out for more frequent beatings because he
was mentally ill.” J.A. 156. 2 We struggle to see how a rational
factfinder could conclude both that Mr. Temu was not persecuted
because of his membership in the group of individuals with
bipolar disorder who exhibit erratic behavior, and also that he
was singled out for beatings because of his mental illness. It
might be possible to reconcile these conflicting findings, but
2
We note that this finding was unnecessary to a grant of
CAT relief, which only requires that an individual establish
that “it is more likely than not” that he would be tortured in
his home country. 8 C.F.R. § 208.16(c)(2). The BIA found that
Mr. Temu is likely to be tortured upon return to Tanzania, and
then it went out of its way to find that this torture would
occur because of his mental illness. Thus, a grant of CAT
relief and a denial of asylum need not contradict one another,
but in this case, the BIA ensured that they did.
8
it would demand logical acrobatics, and the BIA makes no attempt
to explain how it can believe that Mr. Temu was not persecuted
because of his bipolar disorder but was tortured because he was
mentally ill.
We are mindful that reviewing courts should not substitute
their own judgment for the BIA’s in areas where the BIA is
entrusted with the power to adjudicate claims in the first
instance. See Zuh, 547 F.3d at 504. This is not a case of a
mere difference in judgment. When the very core of an opinion
is internally contradictory and advances diametrically opposed
conclusions within paragraphs, this is the very essence of
irrationality. Because the BIA’s nexus finding collapses under
the weight of its logical defects, we are compelled to vacate
the BIA’s finding.
IV.
We next consider the BIA’s conclusion that Mr. Temu’s
proposed group does not qualify as a “particular social group”
under 8 U.S.C. § 1101(a)(42)(A). Through its case law, the BIA
has formulated a three-part test for what constitutes a
“particular social group.” See In re S-E-G-, 24 I & N Dec. 579
(BIA July 30, 2008). First, individuals in the group must
“share a common, immutable characteristic . . . that members of
the group either cannot change, or should not be required to
9
change.” Id. at 582–83 (internal citation and quotation
omitted). In addition, the group must have social visibility,
which means “the group should generally be recognizable by
others in the community.” Id. at 586. Finally, the group must
be defined with particularity, which means the group must have
concrete, identifiable boundaries that allow an observer to
distinguish members of a group from non-members. Id. at 584.
We must uphold the BIA’s conclusion that Mr. Temu’s group
does not qualify as a particular social group unless it is
“manifestly contrary to the law and an abuse of discretion.”
Zelaya, 668 F.3d at 165. Because the BIA’s opinion rests on
legal error, we must reverse. It is unclear from the BIA’s
opinion whether it misapplied its own standard or applied a new
standard without explanation, but in either case, the BIA’s
legal analysis is manifestly contrary to the law. Further, the
BIA’s opinion rests on factual error.
A.
We first consider the BIA’s social visibility analysis.
Social visibility does not mean ocular visibility: a group can
qualify as a social group even if one cannot identify members of
the group by sight. See, e.g., Henriquez-Rivas v. Holder, 707
F.3d 1081, 1087–88 (9th Cir. 2013); Rivera-Barrientos v. Holder,
666 F.3d 641, 652 (10th Cir. 2012). Rather, social visibility
speaks to whether a group is in fact recognized as a group. See
10
In re C-A-, 23 I. & N. Dec. 951, 959 (BIA 2006) (defining social
visibility as whether a group is “understood by others to
constitute” a social group). For example, in the United States,
“Vietnam veterans, . . . cancer survivors, blind people, Cajuns,
practitioners of Falun Gong and hippies” would likely be
identified as social groups, whereas “second-born children and
haters of broccoli” would not. Henriquez-Rivas, 707 F.3d at
1096–97 (Kozinski, J., dissenting). Thus, many groups have
qualified as socially visible under BIA case law, even though
their members are not visibly identifiable. See In re C-A-, 23
I. & N. Dec. at 959 (citing groups defined by kinship ties,
prior employment, and genital mutilation).
Mr. Temu’s group appears to have a strong case for social
visibility, but the BIA never applied a permissible legal
standard. The BIA found that while “Tanzanian society
unquestionably targets individuals who exhibit erratic behavior
for serious forms of mistreatment,” this mistreatment is not
“limited to those who have a diagnosis of bipolar disorder.”
J.A. 153. For example, the IJ noted that a visibly intoxicated
person might exhibit erratic behavior and get targeted for
mistreatment. Id. On its face, it might appear that the IJ’s
opinion conflates the nexus requirement with social visibility,
but in fact, the IJ’s argument is much more subtle. The IJ’s
argument is that a lack of nexus is evidence of a lack of social
11
visibility. Thus, if persecutors torture a wide swath of
victims indiscriminately, this not only suggests a lack of
nexus, but it also suggests that the persecutors did not even
consider any one victim’s particular social group. This, in
turn, suggests a lack of social visibility. In sum, because the
persecutors used erratic behavior as an overbroad proxy for
identifying victims, the persecutors did not view Mr. Temu’s
proposed group as a group in the first place.
This conclusion does not show that Mr. Temu’s group lacks
social visibility: it shows that Mr. Temu’s group lacks 20/20
visibility. The record is clear that Tanzanians view those with
severe, chronic mental illness who exhibit erratic behavior as a
group, since these individuals are singled out for abuse in
hospitals and prisons and are specifically labeled “mwenda
wazimu.” J.A. 137, 145. The nurses in this case explicitly
said that “this is how we treat people who are mentally ill like
you.” J.A. 135 (emphasis added). The fact that Tanzanians are
overbroad in assigning this label to individuals does not show
that social visibility is lacking. Though the persecution can
be poorly aimed in theory, Tanzanians still appear to view the
“mwenda wazimu” as a group, and that is all that social
visibility requires. See Henriquez-Rivas, 707 F.3d at 1089.
Another formulation of the social visibility test lends
further support to this point. Circuit courts and the BIA have
12
argued that a group is socially visible if it can show that it
is singled out for worse treatment than other groups. For
example, the BIA rejected a group of non-criminal informants as
lacking social visibility because “informants are not in a
substantially different situation from anyone who has crossed
[the persecutors] or who is perceived to be a threat to the
[persecutors’] interests.” In re C-A-, 23 I. & N. Dec. at 960–
61; see also In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 75 (BIA
2007); Ramos-Lopez v. Holder, 563 F.3d 855, 861 (9th Cir. 2009).
In this case, Mr. Temu meets that test easily. The undisputed
facts show that even though all prisoners were abused, Mr. Temu
was singled out for worse abuse, with the exception of other
prisoners with mental illness, who received the same increased
abuse as Mr. Temu.
This formulation of social visibility also illustrates the
BIA’s legal misstep. Evidence that persecutors target an entire
population indiscriminately can be evidence of no social
visibility. Id. In that situation, the fact that members of a
particular social group get caught in the same net is
irrelevant. The BIA extended this reasoning to conclude that
any time a persecutor’s net is too large, social visibility must
be lacking. The folly of this legal conclusion can be
demonstrated with a hypothetical. Imagine that an anti-Semitic
government decides to massacre any Jewish citizens. Now,
13
imagine that in putting its policy into practice, the government
collects a list of surnames of individuals who are known to be
Jewish and then kills anyone with the same surname. Jews and
Gentiles alike might be murdered, but this does not change the
fact that Jews have social visibility as a group. Meanwhile,
under the BIA’s reasoning, the fact that persecutors might lump
non-group members with group members is, by itself, enough
evidence to find a lack of social visibility.
Similarly, an analogy to a group that qualifies as a
particular social group is helpful in illustrating why the BIA’s
analysis in this case is impermissible. There is no doubt under
BIA or federal case law that kinship ties can serve as the basis
for a particular social group. The BIA has identified “kinship
ties” as a paradigmatic example of a particular social group.
See Crespin-Valladares, 632 F.3d at 124–25 (citing In re C-A-,
23 I. & N. at 959; In re H-, 21 I. & N. Dec. 337, 342 (BIA
1996)). This Court and “every circuit court to have considered
the question” have reached the same conclusion. Crespin-
Valladares, 632 F.3d at 125 (collecting case law). Yet, under
the BIA’s reasoning in this case, if persecutors were using a
distinctive family trait like curly red hair to identify and
persecute individuals, then family ties would not qualify as a
particular social group, since persecution would not be “limited
to those” who are in the group. J.A. 153. These examples
14
illustrate why the BIA’s application of its social visibility
test is legally erroneous in this case. Requiring what amounts
to 20/20 visibility, rather than social visibility, would lead
to absurd conclusions that flout the case law of this Court,
other circuit courts, and the BIA itself.
There is no mechanical way to separate “haters of broccoli”
from “Vietnam veterans,” Henriquez-Rivas, 707 F.3d at 1096–97,
but one highly relevant factor is if the applicant’s group is
singled out for greater persecution than the population as a
whole. In re C-A-, 23 I. & N. Dec. at 960–61. Similarly,
evidence that a proposed group has a specific label in a society
is highly relevant. A group cannot be defined solely by the
fact of its persecution, Gatimi v. Holder, 578 F.3d 611, 616
(7th Cir. 2009), so evidence that members of a society have a
label for a proposed group helps suggest that the group has a
common thread outside of its victimhood, assuming of course that
the label is not something like “persecution victims.” In sum,
we vacate the BIA’s social visibility finding because it rests
on legal error.
B.
The BIA also commits legal error in concluding that
Mr. Temu’s group lacks particularity. Specifically, the BIA
erred because it broke down Mr. Temu’s proposed group into
pieces and rejected each piece, rather than analyzing his group
15
as a whole. Once again, the BIA applied an impermissible legal
standard because it rejected groups that Mr. Temu never
proposed.
A social group must have identifiable boundaries to meet
the BIA’s particularity element. For example, the group
“affluent Guatemalans” fails because the group changes
dramatically based on who defines it. See In re A-M-E-, 24 I. &
N. Dec. at 76. Affluent might include the wealthiest 1% of
Guatemalans, or it might include the wealthiest 20%. Therefore,
this group lacks boundaries that are fixed enough to qualify as
a particular social group.
In this case, the BIA found no particularity because
bipolar disorder is too broad and erratic behavior is too fuzzy.
First, bipolar disorder covers a wide range of severity. At its
least severe, the disorder can be so mild as to be outwardly
undetectable. Therefore, the disorder covers too broad a
spectrum of behavior to have identifiable boundaries. The other
component of Mr. Temu’s proposed group is erratic behavior, but
this, too, lacks particularity. The definition of erratic
behavior changes based on who defines it, and it is difficult to
put precise, identifiable boundaries on what constitutes erratic
behavior. Because each part of Mr. Temu’s proposed group lacks
particularity, the BIA concluded that the group as a whole
fails.
16
The BIA’s opinion commits legal error by splitting
Mr. Temu’s group in two and rejecting each part, rather than
considering it as a whole. See Crespin-Valladares, 632 F.3d at
125. The BIA is correct that the label of mental illness can
cover a broad range of severity. On its own, it is possible—
though we do not decide—that the group of individuals with
bipolar disorder lacks particularity because of its breadth, but
that is not Mr. Temu’s proposed group. Rather, Mr. Temu limits
his group to those individuals with bipolar disorder who exhibit
outwardly erratic behavior. It may well be that mental illness
lacks particular boundaries, since the label covers a huge swath
of illness that ranges from life-ending to innocuous.
Mr. Temu’s group does not suffer from the same shortcoming,
because it is limited to a specific mental illness so severe
that individuals are visibly, identifiably disturbed.
Similarly, the BIA rejects erratic behavior as lacking
particularity. Erratic behavior is difficult to define and
subjective. We doubt that “individuals who exhibit erratic
behavior” would qualify as a particular social group, but again,
Mr. Temu proposed no such group. Rather, Mr. Temu’s group is
limited to individuals who exhibit erratic behavior and suffer
from bipolar disorder. Unlike “erratic behavior,” the term
bipolar disorder has well-defined, identifiable characteristics.
See generally American Psychiatric Association, Diagnostic and
17
Statistical Manual of Mental Disorders (5th Ed., 2013); World
Health Organization, International Statistical Classification of
Diseases and Related Health Problems V(F30)–(F39) (10th ed.,
2010). The BIA faulted Mr. Temu’s group because it lacks an
“adequate benchmark,” J.A. 4, but that is precisely what the
DSM-V supplies with regard to the other component of Mr. Temu’s
group. J.A. 4. Thus, erratic behavior has unclear boundaries
that the other component of Mr. Temu’s group supplies. In turn,
bipolar disorder covers a broad spectrum of behavior that is
sharply limited by the requirement of erratic behavior.
In essence, the BIA committed legal error because it missed
the forest for the trees. While each component of Mr. Temu’s
group might not satisfy the particularity requirement
individually, the BIA must consider Mr. Temu’s definition as a
whole. See Crespin-Valladares, 632 F.3d at 125 (“[The BIA’s
legal error] flowed from the fact that, as the Government
concedes, the BIA’s removal order rejected a group different
from that which the [applicants] proposed”). For example, we
have recently found that the “group consisting of family members
of those who actively oppose gangs in El Salvador by agreeing to
be prosecutorial witnesses” qualifies as a particular social
group. Id. at 120–121, 125–26. Each component of the group in
Crespin-Valladares might not have particular boundaries.
“Prosecutorial witnesses” might reach too broad a swath of
18
individuals; “those who actively oppose gangs” might be too
fuzzy a label for a group. Our case law is clear, however, that
the group as a whole qualifies. In this case, the BIA took
issue with the component parts of Mr. Temu’s group, but it never
reached the stage of assessing the particularity of Mr. Temu’s
group as a whole. Instead, it considered and rejected two
different groups that were based on pieces of Mr. Temu’s group.
Thus, the BIA’s particularity analysis was based on legal
error. The INA requires that an individual be persecuted
because of membership in a “particular social group.” 8 U.S.C.
§ 1101(a)(42). Nothing in the statute requires that if a group
is defined by a collection of traits, that each individual trait
must meet all the criteria for a “particular social group.”
Time and again, case law from this Court, other circuits, and
the BIA has accepted social groups that, as part of their
definitions, contain components that might not meet the BIA’s
legal standards. See Crespin-Valladares, 632 F.3d at 120–21
(accepting the group of “family members of those who actively
oppose gangs in El Salvador by agreeing to be prosecutorial
witnesses”); Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672
(7th Cir. 2005) (accepting the group of “educated, landowning
class of cattle farmers”); In re C-A-, 23 I. & N. at 960 (citing
favorably the group of “young women of a particular tribe who
were opposed to female genital mutilation” as a particular
19
social group) (citing In re Kasinga, 21 I. & N. Dec. 357, 365–66
(BIA 1996)). Notably, the BIA itself has accepted individuals
with bipolar disorder as a particular social group in the past,
albeit in cases that, like this one, were unpublished. In re
Daniel Francisco Lopez-Sanchez, 2010 Immig. Rptr. LEXIS 7882
(BIA 2010); In re -A-, (BIA May 31, 2007) (slip op.). In fact,
after oral arguments in this case, the BIA issued a decision
accepting the particular social group of individuals in Ghana
with severe mental illness, specifically bipolar disorder, who
are indigent and lack family support. In re --, (BIA Nov. 15,
2013) (slip op.). These cases illustrate that in making asylum
determinations, the BIA must consider an individual’s proposed
group as a whole. Once again, it is unclear whether the BIA
misapplied its own legal standard or advanced a new legal
standard that involves piecemeal analysis. Either way, the
BIA’s opinion is “manifestly contrary to the law.” Crespin-
Valladares, 632 F.3d at 126.
C.
Particular social groups must also be characterized by
immutability, and Mr. Temu’s proposed group easily satisfies
this final element. The BIA’s conclusion to the contrary rests
on factual error. The BIA opinion finds that “there is no cure
for bipolar disorder,” J.A. 154, so there is no doubt that
bipolar disorder is immutable. However, the BIA found no
20
immutability because Mr. Temu’s erratic behavior can be
controlled with medication. Id. However, in the same opinion,
the BIA also adopts the finding that “there is no consistent
access to the medications the respondent needs in Tanzania,” and
that because his family has abandoned Mr. Temu, he will not be
able to obtain what medications are available. J.A. 146. Once
again, the BIA’s opinion advances two factual findings that are
impossible to reconcile without violating fundamental rules of
logic. According to the BIA, Mr. Temu’s disorder will never be
cured and will only worsen. J.A. 146. He can only control his
behavior with medication, but he will not have access to this
medication in Tanzania. The inescapable conclusion from this
finding is that if he is returned to Tanzania, Mr. Temu will not
be able to control his behavior. In sum, Mr. Temu’s membership
in his proposed group is not something he has the power to
change.
The BIA’s position has been explicitly rejected by the
Seventh Circuit and by the BIA itself. In Kholyavskiy v.
Mukasey, the Seventh Circuit considered an asylum claim based in
part on the applicant’s mental illness. 540 F.3d 555, 572–74
(7th Cir. 2008). The BIA found no immutability because even if
the disease is incurable, the individual’s behavior could be
controlled through medication—medication that the applicant
would not have access to if returned to his home country. The
21
Seventh Circuit concluded that the BIA’s immutability argument,
which is identical to the one presented here, had no factual
basis. Id. at 573. Further, the BIA itself has found that
severe mental illness is immutable in two unpublished opinions,
explicitly ruling that “bipolar disorder [is] a chronic
psychiatric condition subject to treatment but not cure, and
thus it [is] an immutable characteristic.” In re -A-, (BIA May
31, 2007) (slip op.); In re --, (BIA Nov. 15, 2013) (slip op.)
(finding immutability because bipolar illness is permanent
regardless of medication). These cases reach the same
conclusion that is compelled by the facts of this case: when an
individual suffers from an incurable mental illness, it is of no
relevance that somewhere in the world, there exists medication
that can help him control the illness. If he cannot access the
medication, his behavior is as effectively immutable as if the
medication did not exist. Further, the underlying bipolar
disorder will never change. While it can be managed, this does
not mean that it can be cured. These facts compel the finding
that Mr. Temu’s group membership is immutable.
22
V.
For the foregoing reasons, we grant the petition for
review, vacate the BIA’s order affirming the IJ’s decision, and
remand for further consideration consistent with this opinion.
PETITION FOR REVIEW GRANTED,
ORDER VACATED, AND CASE REMANDED
23
AGEE, Circuit Judge, dissenting:
Because I find the majority opinion errs in holding that
the Board of Immigration Appeals (“Board”) impermissibly
interpreted the Immigration and Nationality Act (“INA”) in
reviewing Temu’s application for asylum and withholding of
removal under the INA, I respectfully dissent. Specifically, I
conclude that the Board did not err as a matter of law in its
determination that Temu’s proposed social group lacked the
necessary characteristic of particularity.
I.
As the majority describes, the facts are not in dispute and
the immigration judge (“IJ”) found the evidence Temu presented—
including his own testimony about his treatment in Tanzania—to
be credible. The record demonstrates that, beginning in 2001 or
2002, Temu began displaying erratic behavior and was both
hospitalized and jailed following episodes where he would walk
onto a road and attempt to direct traffic. During his
hospitalizations and imprisonment, he was tied up and beaten.
The nurses and doctors indicated that they believed Temu was
mentally ill and referred to him by the term “mwenda wazimu,”
which roughly means “demon-possessed or deranged.” (A.R. 55,
24
136. 1) Upon Temu’s release, his family increasingly rejected
him as their efforts to rid him of his “evil spirit” failed.
(A.R. 56, 137.)
While lawfully in the United States on a temporary visa,
Temu was taken to the hospital after police observed him
standing in the middle of a street attempting to direct traffic.
Over time and after observation, medical professionals diagnosed
Temu with bipolar disorder. Temu’s visitor’s visa expired in
2006, but he nevertheless remained in the United States
unlawfully. Although he can be employed and function
independently while on medication, Temu has suffered relapses
when he does not take his medications. On two occasions during
such relapses, Temu was detained in psychiatric facilities after
police observed him in the middle of a street attempting to
control traffic.
In 2010, the Department of Homeland Security filed a notice
to appear against Temu charging him with eligibility for removal
based on overstaying his visitor’s visa without authorization.
He asserted eligibility for asylum and withholding of removal
under the INA based on his membership in a particular social
group, which he identified as “schizophrenic and bipolar
1
Citations to the adopted administrative record filed with
this Court are denoted by “A.R.”
25
individuals in Tanzania who exhibit outwardly erratic behavior.” 2
(A.R. 72, 153.)
The IJ concluded that Temu satisfied the requirements for
filing a late application for relief, and also determined that
he satisfied the criteria for relief under the Convention
Against Torture. As to Temu’s other claims, the IJ concluded
that Temu was ineligible for asylum or withholding of removal
under the INA because he failed to “demonstrate[] that the harm
he suffered was inflicted on account of his membership in a
cognizable particular social group as required by law.” (A.R.
72, 153.) She held that Temu’s proposed group lacked the three
characteristics for a particular social group that the agency
has determined the INA requires: particularity, immutability,
and social visibility. Alternatively, the IJ concluded that
Temu failed to demonstrate a nexus between his past persecution
and his membership in the proposed social group. The Board
adopted the IJ’s findings and conclusions, and dismissed Temu’s
appeal, agreeing that Temu’s proposed group did not satisfy the
requirements for a particular social group.
2
The alternate diagnosis of schizophrenia is no longer part
of Temu’s proposed social group.
26
II.
The Court must uphold the denial of Temu’s application for
asylum unless the denial is “manifestly contrary to the law and
an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). Whether a
proposed group constitutes a particular social group under the
INA is a question of law that the Court reviews de novo. Lin v.
Mukasey, 517 F.3d 685, 691 (4th Cir. 2008). In so doing,
however, the Court accords Chevron 3 deference to the Board’s
reasonable interpretation of the INA. Id. at 691-92. Where, as
here, the Board adopts the IJ’s decision and includes its own
reasons for affirming, the Court reviews both decisions.
Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010).
To establish eligibility for the discretionary relief of
asylum, Temu had the burden of showing that he has a “well-
founded fear of persecution on account of . . . membership in a
particular social group . . . .” Naizgi v. Gonzales, 455 F.3d
484, 486 (4th Cir. 2006) (citing 8 U.S.C. § 1101(a)(42)(A); 8
C.F.R. § 1208.13(a). Temu faces a higher burden of proof to
establish eligibility for withholding of removal—he must
demonstrate “that it is more likely than not that [his] life or
freedom would be threatened . . . because of [his] . . .
3
Chevron v. Nat’l Res. Defense Counsel, 467 U.S. 837
(1984).
27
membership in a particular social group . . . .” Gomis v.
Holder, 571 F.3d 353, 359 (4th Cir. 2009) (citing 8 U.S.C. §
1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2)); see also Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
The INA does not define “particular social group.” The IJ
and Board rely on prior Board opinions that interpreted this
phrase to mean a group that (1) “share[s] a common, immutable
characteristic” other than the fact that they are targeted for
persecution, (2) that “[has] particular and well-defined
boundaries,” and (3) that “possess[es] a recognized level of
social visibility.” 4 (A.R. 68.)
4
On appeal, Temu challenges the Board’s use of this three-
part test in addition to its application of it, asserting that
requiring “social visibility” is a marked departure from the
Board’s long-standing approach to defining a “particular social
group” and that this Court should not afford this criteria
Chevron deference. The Attorney General responds that Temu has
waived appellate review of the Board’s use of the social
visibility criteria because he failed to raise this issue in his
appeal to the Board and thus has not exhaust his administrative
remedies, as required by the INA.
The majority opinion does not address this issue and
proceeds instead directly to the Board’s application of the
social visibility criteria. I would expressly hold that the
Court lacks jurisdiction to consider this aspect of Temu’s
claim. The INA expressly requires exhaustion of administrative
remedies, 8 U.S.C. § 1252(d)(1), and as such there is no
futility exception to this requirement and it must be strictly
enforced. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).
And although this Court alone can resolve the question of
Chevron deference, the Board could have considered anew whether
its use of the three-part criteria was an appropriate
interpretation of the INA and cured its purported lack of an
(Continued)
28
Temu challenges the IJ and Board’s application of the
three-part analysis of his proposed group and its conclusion
that it was not a cognizable “particular social group” under the
INA. As noted, the IJ and Board concluded that Temu’s proposed
group of bipolar individuals in Tanzania who exhibit outwardly
erratic behavior lacked all three characteristics necessary for
an alien to prove his or her “particular social group” status:
immutability, particularity, and social visibility. I conclude
that the Board’s decision can be upheld with respect to the
particularity requirement, and it is therefore unnecessary to
proceed further to deny Temu’s petition for review. See Zelaya
v. Holder, 668 F.3d 159, 167 (4th Cir. 2012) (affirming the
Board’s decision to deny asylum based on conclusion that the
proposed group lacks particularity without discussing the
remaining characteristics)
As its title suggests, a “particular social group” must
have “particular and well-defined boundaries,” id. at 166, such
that it is not “too amorphous . . . to create a benchmark for
determining group membership,” Matter of S-E-G-, 24 I. & N. Dec.
579, 584 (B.I.A. 2008). The majority concludes that the IJ and
Board’s determination that Temu’s proposed group lacks
explanation for why it was appropriate to use that construct had
Temu raised that issue for the Board’s consideration.
29
particularity is based on an error of law. Maj. Op. at 15-20.
Specifically, the majority opines that the IJ and Board
“commit[ted] legal error by splitting Mr. Temu’s group in two
and rejecting each part, rather than considering it as a whole.”
Maj. Op. at 17. I disagree.
At the outset, it is fundamentally important to review the
IJ and Board’s actual holdings. The IJ concluded that Temu’s
proposed social group lacked particularity “because the term
‘erratic behavior’ is too amorphous to ‘provide an adequate
benchmark for determining group membership.’” (A.R. 72.) It
explained that “[e]rratic behavior could range from eccentric
remarks to violent outbursts. Whether one perceives a
particular behavior to be ‘erratic’ is a question of
perspective, and as a result the respondent’s particular social
group lacks particularity.” (Id.) The Board, in turn, agreed
with the IJ’s conclusion that “‘erratic behavior’ is too
indeterminate to meet the requirement of particularity . . . as
the mentally ill . . . comprise a wide variety of different
individuals covering a broad range of functionality.” (A.R. 4.)
And in rejecting Temu’s argument that he satisfied the
particularity requirement “with evidence that individuals with .
. . bipolar disorder suffer from a discrete set of symptoms[]
that include[s] erratic behavior,” the Board also noted that
“erratic behavior is an amorphous characteristic, which does not
30
provide an adequate benchmark for determining group membership
or a concrete trait that would readily identify a person as
possessing such a characteristic.” (Id.)
As the above recitation suggests, the Board did not divide
Temu’s proposed group into two discrete subsections and consider
them entirely apart from each other. To the extent that the
underlying analysis focused on the component parts, however, it
was not an error of law to do so. If each component of a
proposed social group is amorphous and lacks particularity then
it will often be true – and I conclude is the case here – that
the group as a whole also lacks the requisite particularity.
Far from being an aberration in this Court’s or the Board’s
precedent, the IJ and Board’s approach in this case is one that
both the Board and this Court have used in the past. For
example, in Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011), the
Court upheld the Board’s conclusion that Lizama’s proposed
social group of “young, Americanized, well-off Salvadoran male
deportees with criminal histories who oppose gangs” lacked
particularity. Id. at 442. In so holding, the Court observed
that the component parts of this group were “all amorphous
characteristics that neither ‘provide an adequate benchmark for
determining group membership,’ nor embody concrete traits that
would readily identify a person as possessing those
characteristics.” Id. at 447 (internal citation omitted).
31
Indeed, Lizama specifically argued that the Board had erred by
“dissect[ing] [Lizama’s] social group into supbarts, and
fail[ing] to consider the group in its totality.” Id. Far from
recognizing that approach as legal error, the Court rejected the
argument for the simple reason that Lizama failed to “explain
how viewing the above-mentioned terms in conjunction with each
other makes the group any more particular[.] The truth remains
that, as a whole, the group described is not narrow or enduring
enough to clearly delineate its membership or readily identify
its members.” Id. at 447-48. If the approach taken by the
Board had been an error of law, Lizama would have recognized it
as such and would not have applied the same approach in
considering whether Lizama’s proposed group lacked
particularity.
As another example, in Zelaya v. Holder, 668 F.3d 159 (4th
Cir. 2012), Zelaya asserted that he was eligible for asylum and
withholding of removal based on his membership in the proposed
group of “young Honduran males who (1) refuse to join the Mara
Salvatrucha 13 gang (MS-13), (2) have notified the authorities
of MS-13’s harassment tactics, and (3) have an identifiable
tormentor within MS-13.” Id. at 162. In upholding the Board’s
denial of relief based on the conclusion that Zelaya’s group was
not cognizable under the INA, the Court held:
32
The critical problem with Zelaya’s proposed social
group for purposes of seeking asylum is that it fails
the BIA’s particularity requirement. First, as we
have previously recognized, opposition to gangs is an
amorphous characteristic providing neither an adequate
benchmark for determining group membership nor
embodying a concrete trait that would readily identify
a person as possessing such a characteristic.
Resisting gang recruitment is similarly amorphous, and
the fact that Zelaya’s conduct in resisting
recruitment included complaining twice to the police
adds little to the particularity equation in the face
of the common sense proposition that MS-13 would look
unfavorably upon anyone who complained about its
harassment tactics to the police. Similarly, the
concept that a person who is victimized by one gang
member more than by other gang members somehow serves
to particularize all such persons into a targeted
social group is just nonsensical.
Id. at 166-67. The Court thus considered the group as a whole,
but in so doing addressed why its specific components lacked
particularity as part of that whole. Similarly, here, the Board
considered Temu’s proposed group and concluded that it consisted
of criteria that would not make that group “particular.” (Cf.
A.R. 4.) Far from being an error of law, that is precisely the
inquiry the IJ and Board are charged with undertaking.
I conclude that the IJ and Board’s determinations after
conducting that proper legal inquiry are not manifestly contrary
to the law or an abuse of discretion. No adequate benchmark
exists for determining whether an individual is a member of a
group defined as “bipolar individuals in Tanzania who engage in
erratic behavior.” Contrary to the majority’s claim, there is
nothing inherent in this group’s description that limits a
33
person’s erratic behavior to a diagnosis of bipolar disorder or
vice versa. More to the point, bipolar disorder covers a wide
spectrum of behaviors and tendencies, and “erratic behavior” is
inherently subjective and amorphous. There is no discernible
basis for readily identifying an individual as being part of the
proposed group or not. See, e.g., Mendoza-Alvarez v. Holder,
714 F.3d 1161, 164 (9th Cir. 2013) (per curiam) (rejecting the
proposed social groups of “all insulin-dependent diabetics or
all insulin-dependent diabetics who suffer from mental
illnesses” (whether the group contained the additional
characteristics of an inability to work, lack of medical
insurance, and a lack of money from other sources from which to
pay for essential medication or not) as lacking particularity
because the proposed group “include[s] large numbers of people
with different conditions and in different circumstances . . .
[and] [i]ndividuals may have these conditions separately or in
combination, and in varying degrees of severity” and thus are
“far from a particular, discrete social group”); Matter of S-E-
G-, 24 I. & N. Dec. at 585 (concluding that “male children who
lack stable families and meaningful adult protection, who are
from middle and low income classes, who live in territories
controlled by the MS-13 gang, and who refuse recruitment” lacks
particularity because “these characteristics remain amorphous
34
[given that] ‘people’s ideas of what those terms mean can
vary’”).
The majority is correct that the IJ and Board must consider
the scope of the group the petitioner actually proffers. See
Maj. Op. at 18. And it is conceptually true that the INA does
not require “that each individual trait must meet all the
criteria for a ‘particular social group’” in order for the
proposed group considered as a whole to satisfy the
particularity requirement. See Maj. Op. at 19. But where none
of the proposed group’s parts satisfy the requirement, then it
will most frequently be the case that the whole cannot satisfy
it either.
The majority’s reliance on Crespin-Valladares v. Holder,
632 F.3d 117 (4th Cir. 2011), is, I believe, misplaced because
there the petitioners’ proposed group consisted in part of
family members, a trait that had previously been recognized as
being a discrete group that was well-defined. Id. at 125. The
Board’s error in that case was ignoring that component of the
proposed group in conducting its original analysis and then re-
characterizing the group on remand beyond its proposed scope.
Id.; see also Zelaya, 668 F.3d at 166 (noting Crespin-
Valladares’s holding that “the self-limiting nature of the
family unit satisfied the particularity requirement”). Neither
the IJ nor the Board engaged in similar conduct here; instead,
35
they considered Temu’s proposed group according to each
component he urged and found that this proposed group lacked the
requisite particularity. For the reasons described above, I
would hold that their analysis was not manifestly contrary to
the law or an abuse of discretion.
III.
Because I would uphold the Board’s decision with respect to
particularity, it follows that Temu’s proposed group would fail
to satisfy all the required characteristics of a particular
social group, and his claim would fail as a matter of law. Cf.
Zelaya, 668 F.3d at 167. As such, I do not find it necessary to
consider Temu’s remaining arguments. I would deny Temu’s
petition for review, thereby affirming the Board’s decision to
deny Temu’s application for asylum and withholding of removal
under the INA. I therefore respectfully dissent.
36