Henriquez-Rivas v. Holder

For purposes of seeking asylum, the "social visibility" requirement of “membership in a social group” refers to "perception" and does not require "on-sight" visibility, and those who have publicly testified against gang members in court meet the social visibility requirement.

Henriquez-Rivas, a citizen of El Salvador, sought asylum in the United States after she testified in a criminal trial against gang members who killed her father. The immigration judge (IJ) determined that Henriquez-Rivas met the criteria for asylum, and the Board of Immigration Appeals (BIA) reversed. The BIA determined that “people testifying against or otherwise opposing gang members” did not constitute a social group because the group lacked the necessary “social visibility.” A three-judge panel of the Court denied review, and the Court granted rehearing en banc. The Court held that “social visibility” refers to “perception” rather than “on-sight” visibility. While the Court affords deference to the BIA to clarify “whose perspectives are most indicative of society’s perception of a particular social group,” the Court suggested that the “perception of the persecutors may matter most.” Citing BIA precedent, the Court ruled that “those who testify against cartel members are socially visible,” most notably because they “appear as witnesses” in court. Moreover, Salvadoran society has specifically recognized the vulnerability of the class of individuals who testify against gang members by enacting specific witness protection laws. The BIA’s decision is VACATED and REMANDED for further proceedings.