Thomas v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE THOMAS; DAVID GEORGE  No. 02-71656
THOMAS; TYNEAL MICHELLE
THOMAS; SHALDON WAIDE THOMAS, Agency Nos.
Petitioners, A75-597-033
v.  A75-597-034
A75-597-035
ALBERTO R. GONZALES,* A75-597-036
Attorney General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc
December 14, 2004—Pasadena, California
Filed June 3, 2005
Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,
Diarmuid F. O’Scannlain, Pamela Ann Rymer,
Andrew J. Kleinfeld, Michael Daly Hawkins,
Barry G. Silverman, Susan P. Graber,
Kim McLane Wardlaw, Richard A. Paez, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Rymer
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
6117
6120 THOMAS v. GONZALES
COUNSEL
Errol I. Horwitz and Edward M. Bialack, Law Offices of
Errol I. Horwitz, Woodland Hills, California, for the petition-
ers.
Daniel Meron, Principal Deputy Assistant Attorney General,
and Anne Murphy, Attorney, Department of Justice, Wash-
ington, D.C., for the respondent.
Deborah Anker, Nancy Kelly, and John Willshire, Women
Refugees Project, Harvard Immigration and Refugee Clinic,
Boston, Massachussetts, for the amicus curiae.
THOMAS v. GONZALES 6121
OPINION
WARDLAW, Circuit Judge:
Michelle, David, Shaldon, and Tyneal Thomas, natives and
citizens of South Africa, appeal the decision of the Board of
Immigration Appeals (“BIA”), summarily affirming the
Immigration Judge’s (“IJ’s”) denial of their application for
asylum and withholding of removal.
We review this case en banc to reconcile our intracircuit
conflict on the question of whether a family may constitute a
“particular social group” for the purposes of 8 U.S.C.
§ 1101(a)(42)(A). We hold that family membership may con-
stitute membership in a “particular social group,” and thus
confer refugee status on a family member who has been per-
secuted or who has a well-founded fear of future persecution
on account of that familial relationship. We also overrule
Estrada-Posadas v. INS, 924 F.2d 916 (9th Cir. 1991), and its
progeny, to the extent that they hold that a family may not
constitute a “particular social group”; we defer to the BIA’s
view of kinship ties as giving rise to social group member-
ship, expressed in In re Acosta, 19 I. & N. Dec. 211 (BIA
1985), and elsewhere; and we join the univocal view of our
sister circuits that a family may make up a particular social
group.
We have jurisdiction pursuant to 8 C.F.R. § 1252(a)(1). We
grant the Thomases’ petition and remand to the BIA for fur-
ther proceedings.
I. BACKGROUND
We substantially adopt the factual recitation by the original
panel majority in its now-withdrawn opinion.
Michelle Thomas, her husband David Thomas, and their
two children, Shaldon Thomas and Tyneal Thomas, are citi-
6122 THOMAS v. GONZALES
zens and natives of South Africa. They entered the United
States as visitors at Los Angeles, California, on May 28,
1997. Within one year of their arrival, they filed requests for
asylum pursuant to § 208 of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1158. Michelle Thomas is the princi-
pal asylum applicant; David, Shaldon, and Tyneal are deriva-
tive applicants.
At a hearing on December 2, 1998, the petitioners con-
ceded their removability and requested asylum and withhold-
ing of removal. On May 12, 1999, the IJ held an evidentiary
hearing. Michelle Thomas was the only petitioner who testi-
fied at the hearing.
The Thomases came to the United States to avoid threats of
physical violence and intimidation to which they were sub-
jected because of abuses committed by Michelle’s father-in-
law, “Boss Ronnie,” who was a foreman at Strongshore Con-
struction in Durban, South Africa. Boss Ronnie was and is a
racist who abused his black workers both physically and ver-
bally.
At the hearing, Michelle testified about a number of events
that support the Thomases’ fears. The first took place in Feb-
ruary 1996, when the family dog was poisoned. At that time
they did not connect the incident with Boss Ronnie’s abusive
and racist conduct. The next month, their car was vandalized
and its tires slashed, though nothing was taken out of the car.
The police came, took fingerprints, and patrolled the area but
did nothing else. The Thomases told Michelle’s father-in-law
about the incident. Boss Ronnie told them that he had just had
a confrontation with his workers and that the family should
buy a gun.
In May 1996, human feces were thrown at the door of the
Thomases’ residence while they were at home. After hearing
the noise, the Thomases saw people running away. Feces
were also left outside their front and back gates at later times.
THOMAS v. GONZALES 6123
The Thomases then had higher fencing installed and bars put
on their windows; they got a guard dog and requested addi-
tional police patrols.
In December 1996, Michelle’s life was threatened by a per-
son wearing overalls bearing a Strongshore logo. In her
words,
I was sitting on the veranda the one evening with my
children playing in the front yard and a Black man
had come up to me and asked me if I knew Boss
Ronnie which was David’s father and he said to me
he’[d] come back and cut my throat. At that stage I’d
taken the kids inside. The kids were very upset and
I said to him we don’t know him, he’s just drunk.
Let’s go inside. At this stage I was really, really fear-
ing for my life and I had told David on a number of
occasions, please speak to his father which he did,
but he was not interested in what we had to say.
In March 1997, Michelle was outside of her gate, on the
way to the store, when four black men approached her and
tried to take her daughter from her arms. As she testified,
“[T]hey surrounded me and the next thing I knew is that they
were trying to get Tyneal out [of] my arms. I held her tight
and fell to the ground with her. . . .” The men ran off after
Michelle’s neighbor came out of his house in response to
Michelle’s screaming. One of the men wore Strongshore
overalls. After this incident Michelle was afraid that “they
were going to come back and either kill one of us or take one
of my children.” It was at that point that Michelle decided that
she needed to leave South Africa.
Michelle’s brother-in-law had his house broken into and his
car vandalized several times, and he and his family had
received threats. Michelle believed that her family, rather than
her father-in-law, had become the subject of attacks because
her father-in-law owned weapons and lived in what was
6124 THOMAS v. GONZALES
essentially a “fortress,” so the attackers could not get to him.
In addition to the evidence of particular attacks on their fam-
ily, the Thomases also submitted evidence of the widespread
crime problem in South Africa.
The IJ did not make an adverse credibility finding,1 but
nevertheless denied the Thomases’ request for asylum and
withholding of removal, finding that Michelle failed to meet
her burden of proving that she and her family suffered perse-
cution in South Africa based “on any of the five statutory
grounds, whether it is race or political opinion.” Although the
asylum application indicated both membership in a social
group and political opinion as grounds for relief, and did not
identify “race,” the IJ did not expressly reference “member-
ship in a particular social group.” The BIA affirmed the deci-
sion of the IJ without opinion, and the Thomases petitioned
for review. A divided three-judge panel held that the Thom-
ases suffered past persecution as a result of their family mem-
bership, granted the petition, and remanded for further
consideration of, among other things, whether the government
was unable or unwilling to control the violence against the
Thomases.
II. STANDARD OF REVIEW
We review the BIA’s “factual determinations, including its
finding of whether an applicant has demonstrated a ‘well-
founded fear of persecution,’ . . . for substantial evidence.”
Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
We also review the BIA’s decision to withhold deportation
for substantial evidence. Kazlauskas v. INS, 46 F.3d 902, 907
(9th Cir. 1995). “The substantial evidence standard of review
is highly deferential to the Board.” Pedro-Mateo, 224 F.3d at
1
Because the IJ did not make an adverse credibility finding, we accept
Michelle Thomas’s testimony as true. See Kalubi v. Ashcroft, 364 F.3d
1134, 1137 (9th Cir. 2004).
THOMAS v. GONZALES 6125
1150 (quotations and citations omitted). “We review the
BIA’s determination of purely legal questions regarding the
Immigration and Nationality Act de novo.” Kankamalage v.
INS, 335 F.3d 858, 861 (9th Cir. 2003) (citations omitted).
However, “[t]he BIA’s interpretation of immigration laws is
entitled to deference.” Id. at 862. Because the BIA summarily
affirmed the IJ’s decision, we review the IJ’s decision as the
final agency determination. See Falcon Carriche v. Ashcroft,
350 F.3d 845, 849 (9th Cir. 2003).
III. DISCUSSION
A. Eligibility for Asylum and Withholding of Removal
[1] The Attorney General may grant asylum to an alien who
is a refugee. 8 U.S.C. § 1158(b)(1). “A refugee is an alien
who is unable to return to his home country ‘because of perse-
cution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group or political opinion.’ ” Ding v. Ashcroft, 387 F.3d 1131,
1136 (9th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)).
[2] To establish eligibility for withholding of removal,
under 8 U.S.C. § 1231(b)(3)(A), a petitioner must establish a
“clear probability,” Navas v. INS, 217 F.3d 646, 655 (9th Cir.
2000), that the petitioner’s “life or freedom would be threat-
ened” upon return because of “race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). An applicant has established a
“clear probability” of persecution, and “is entitled to with-
holding of removal . . . if it is more likely than not that he or
she will be persecuted based on one of the protected grounds
if returned to the country of removal.” Wang v. Ashcroft, 341
F.3d 1015, 1022 (9th Cir. 2003). Once the petitioner satisfies
the standard, withholding of removal is mandatory. 8 U.S.C.
§ 1341(b)(3)(A). As in the context of asylum, “[a] determina-
tion of past persecution such that a petitioner’s life or freedom
was threatened creates a presumption of entitlement to with-
6126 THOMAS v. GONZALES
holding of deportation.” Rios v. Ashcroft, 287 F.3d 895, 903
(9th Cir. 2002) (citations omitted).
B. Exhaustion
As a preliminary matter, we reject the government’s con-
tention that the Thomases’ “family as a particular social
group” claim was unexhausted at the agency level, depriving
us of jurisdiction. Although the government correctly argues
that a “court may review a final order of removal only if . . .
the alien has exhausted all administrative remedies available
to the alien as of right,” 8 U.S.C. § 1252(d)(1), its view that
the Thomases’ failed to exhaust their family as social group
claim is legally and factually mistaken.
[3] To exhaust an asylum claim, an applicant “must first
raise the issue before the BIA or IJ.” Rojas-Garcia v. Ash-
croft, 339 F.3d 814, 819 (9th Cir. 2003). The purpose of
exhaustion “is to give an administrative agency the opportu-
nity to resolve a controversy or correct its own errors before
judicial intervention.” Zara v. Ashcroft, 383 F.3d 927, 931
(9th Cir. 2004) (citation omitted). For this reason, an asylum
petitioner must “put the BIA on notice” of the issue. Zhang
v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam).
A petitioner is not required to discuss the issue in the briefs
before the BIA, but may merely raise it in the notice of
appeal. Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000). Of
course, raising it in the briefs is also sufficient.
[4] Michelle Thomas repeatedly put the IJ and the BIA on
notice of the family-as-social-group basis for the Thomases’
claim to refugee status. First, when asked to select the basis
for her claim, Michelle checked the box on her asylum appli-
cation marked “membership in a particular social group.”
Second, Michelle attached a written declaration to the asylum
application, in which she explained that her family left South
Africa in fear “because we were targeted by one or more of
the construction workers working for David’s father. . . . This
THOMAS v. GONZALES 6127
happened to us, not because of anything we did but because
of the racism of David’s father.” Both the application and the
declaration were part of the record before the IJ. Moreover,
Michelle raised the issue before the BIA in her notice of
appeal, which attached and referred to the declaration as the
basis for the appeal. In addition, Michelle’s counseled brief
before the BIA asserts that the Thomases “set forth the
grounds of appeal by way of a Declaration by the lead
Respondent, Michelle Thomas.” The brief also argued in sub-
stance that the Thomases suffered because of their relation-
ship to Boss Ronnie, stating that Thomas “feared that if [she
and her family] were forced to return to South Africa they
would be killed because certain black South Africans who
worked under the supervision of lead Respondent’s father-in-
law held ‘a grudge against her and her family’ because of
abusive actions perpetrated by him.”
The IJ’s opinion indicates that the IJ understood the factual
underpinning of the family’s claim, if not its full legal signifi-
cance. The IJ wrote that Michelle “alleges that if she is
returned to South Africa she would be killed because Black
workers in South Africa hold a grudge against her and her
family.” The IJ’s opinion also recites Michelle’s testimony
that “the father-in-law is a racist who verbally and physically
abused his Black workers,” that “the Black workers were
retaliating against her family because of the actions of the
father-in-law,” and that “the hostility that her family was sub-
jected to was because the people were afraid or they could not
direct it toward her father-in-law.” Although the IJ read from
the asylum application and quoted Michelle’s testimony, she
did not properly characterize the social group claim, instead
describing it as a claim based on racial persecution that
Michelle had not made.2
2
In her oral decision, the IJ seemed to not fully comprehend that the
facts recited by Michelle supported her claim of persecution on account
of her familial relationship to Boss Ronnie. Instead, the IJ devoted most
of that decision to discussing general crime and racial incidents in South
6128 THOMAS v. GONZALES
[5] On appeal, the BIA had the record of Michelle Thom-
as’s testimony and of the IJ’s characterization of the factual
basis for her claim that she and her family were targeted due
to their relation to Boss Ronnie. The BIA had a full opportu-
nity to review the record and the notice of appeal, which
included Thomas’s declaration, as well as to read her brief,
before summarily affirming the IJ’s decision. Therefore, we
hold that the social group issue was in fact raised at the
administrative level, notwithstanding the failure of the IJ and
the BIA to fully analyze the Thomases’ asserted ground for
refugee status.
C. Family as a “particular social group”
[6] The BIA has long and consistently held that “kinship
ties” are the sort of common and immutable characteristic that
give rise to a “particular social group” for the purposes of 8
U.S.C. § 1101(a)(42)(A). In the seminal case of In re Acosta,
19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds
by In re Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987),
the BIA first recognized that “kinship ties” may be the defin-
ing characteristic of a particular social group.
In Acosta, the BIA analyzed whether the persecution
Acosta “fears at the hands of the guerrillas is on account of
his membership in a particular social group comprised of
[taxi] drivers and persons engaged in the transportation indus-
try of El Salvador.” Id. at 232. Noting that “Congress did not
indicate what it understood this ground of persecution to
Africa. However, Michelle did not select the “race” box on her asylum
application. Moreover, the IJ correctly characterized Michelle’s claim dur-
ing the course of Michelle’s testimony: “the workers weren’t hurting you
because of your race. . . . It’s just that they hated [David Thomas’s] father
and wanted to come after you. . . . [Y]ou say that all these things happened
to you because of your father-in-law.” Michelle agreed with the IJ’s char-
acterization.
THOMAS v. GONZALES 6129
mean,” id., the BIA conducted an exhaustive examination of
the meaning of the phrase “particular social group.”
First, the BIA explained that the phrase could be “of
broader application” than the other four statutory groups. Id.The Board noted that in “add[ing] the elements in the defini-
tion of a refugee,” Congress “intended to conform the Immi-
gration and Nationality Act to the United Nations Protocol
Relating to the Status of Refugees, to which the United States
had acceded in 1968.” Id. at 219 (citations omitted). Accord-
ingly, the BIA concluded, “it is appropriate for us to consider
various international interpretations of that agreement.” Id. at
220. By examining these “various international interpreta-
tions,” the BIA decided that the “notion of a ‘social group’
was considered to be of broader application than the com-
bined notions of racial, ethnic, and religious groups and that
in order to stop a possible gap in the coverage of the U.N.
Convention, this ground was added to the definition of a refu-
gee.” Id. at 232 (citing A. Grahl-Madsen, The Status of Refu-
gees in International Law § 76, at 219 (1966)).
Second, the BIA found that the words “particular social
group” implied that there was some kind of link between the
people in the group:
A purely linguistic analysis of this ground of perse-
cution suggests that it may encompass persecution
seeking to punish either people in a certain relation,
or having a certain degree of similarity, to one
another or people of like class or kindred interests,
such as shared ethnic, cultural, or linguistic origins,
education, family background, or perhaps economic
activity.
Id. at 232-33. Quoting the United Nations High Commis-
sioner for Refugees, the BIA explained that “a ‘particular
social group’ connotes persons of similar background, habits,
or social status and that a claim to fear persecution on this
6130 THOMAS v. GONZALES
ground may frequently overlap with persecution on other
grounds such as race, religion, or nationality.” Id. at 233 (cit-
ing Office of the United Nations High Commissioner for Ref-
ugees, The Handbook on Procedures and Criteria for
Determining Refugee Status Under the 1951 Convention and
the 1967 Protocol Relating to the Status of Refugees 19
(Geneva, 1979)).
Finally, the BIA concluded that the doctrine of ejusdem
generis—the principle that “general words used in enumera-
tion with specific words should be construed in a manner con-
sistent with the specific words,” id.—indicates an
interpretation in harmony with the BIA’s “international” and
“linguistic” analyses. The BIA explained:
The other grounds of persecution in the Act and the
Protocol listed in association with ‘membership in a
particular social group’ . . . describe[ ] persecution
aimed at an immutable characteristic: a characteristic
that either is beyond the power of an individual to
change or is so fundamental to individual identity or
conscience that it ought not be required to be
changed.
Id. at 233 (citations omitted). Applying the doctrine to “mem-
bership in a particular social group,” the BIA interpreted the
phrase to mean persecution that is directed toward an individ-
ual “who is a member of a group of persons all of whom share
a common, immutable characteristic, . . . [which] might be an
innate one such as sex, color, or kinship ties, or in some cir-
cumstances it might be a shared past experience such as for-
mer military leadership or land ownership.” Id. The BIA
explained that only when persecution is directed toward a per-
son on account of a truly innate or fundamental characteristic
“does the mere fact of group membership become something
comparable to the other four grounds.” Id. However, because
there may be many different “common characteristic[s]” that
define a group, the BIA refrained from attempting to delineate
THOMAS v. GONZALES 6131
every possible characteristic ex ante, explaining that “the par-
ticular kind of group characteristic that will qualify under this
construction remains to be determined on a case-by-case
basis.” Id. The BIA nevertheless made its standard clear: the
characteristic 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 con-
sciences.” Id.
In In re H-, 21 I. & N. Dec. 337 (BIA 1996), the BIA clari-
fied and affirmed its interpretation of “particular social group”
articulated in Acosta. It concluded that the petitioner in In re
H- was a “member of a particular social group” for the pur-
poses of the refugee statute because, it found, the petitioner
was persecuted on account of his membership in the Marehan
clan in Somalia. Id. at 343, 345. To arrive at this conclusion,
the BIA first cited Acosta for the proposition that a social
group is characterized by “a group of persons all of whom
share a common, immutable characteristic.” Id. at 342. Then
the BIA noted that the Immigration and Naturalization Ser-
vice Basic Law Manual on asylum recognized that family ties
are just such a common characteristic: “[the] Manual recog-
nizes generally that clan membership is a highly recognizable,
immutable characteristic that is acquired at birth and is inex-
tricably linked to family ties.” Id. Finally, the BIA concluded
that because the Marehan clan “share[s] ties of kinship” and
“are identifiable as a group based on linguistic commonali-
ties,” the clan “can be characterized as a ‘particular social
group’ within Somalia, of which respondent is a member.” Id.
at 343. The BIA made this determination even though no
other statutory factor was relevant: “victims were reportedly
singled out for no reason other than their clan affiliation.” Id.
at 345 (quotations and citations omitted).3
3
The BIA noted that the incidence of “clan warfare” was irrelevant to
the validity of the petitioner’s claim. Rather, the appropriate questions
were whether the petitioner presented an “individualized claim,” and
whether the persecutors were motivated to persecute “on account of” a
protected ground:
6132 THOMAS v. GONZALES
The BIA has never departed from the principle enunciated
in Acosta and In re H-. See In re V-T-S-, 21 I. & N. Dec. 792,
798 (BIA 1997) (citing Acosta for the ‘particular social
group’ test and In re H- for the proposition that shared ties of
kinship warrant characterization as a social group); In re
Fauziya Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996)
(defining applicant’s social group as “young women who are
members of the Tchamba-Kunstuntu Tribe of northern Togo
who have not had [female genital mutilation]”).
[7] Nor have any of the other circuits that have considered
the question departed from the principle that a family may
constitute a social group. The First Circuit has held that
“[t]here can, in fact, be no plainer example of a social group
based on common, identifiable and immutable characteristics
than that of the nuclear family.” Gebremichael v. INS, 10 F.3d
28, 36 (1st Cir. 1993); see also Aguilar-Solis v. INS, 168 F.3d
565, 571 (1st Cir. 1999) (“While the IJ might have drawn an
inference that the FMLN targeted the petitioner because of his
membership in a social group (i.e., his family), she chose to
draw a contrary, equally plausible inference.”). The Third Cir-
cuit, explaining that the BIA’s interpretation of the phrase
“membership in a particular social group” is entitled to defer-
ence, concluded that the BIA’s statement in Acosta that “kin-
ship ties” may constitute such membership is thus “a
permissible construction of the relevant statutes, and we are
consequently bound to accept it.” Fatin v. INS, 12 F.3d 1233,
1239, 1240 (3d Cir. 1993). The Seventh Circuit, after con-
That the applicant was persecuted in the context of clan warfare
does not undermine his claim. The motivation of the persecutors
reasonably appears to be, as the applicant contends, on account
of his subclan affiliation. He presented an individualized claim
which reflected that he became the object of harm and was physi-
cally abused simply because he was identified with the former
ruling faction by being a member of the Marehan clan.
21 I. & N. Dec. at 345-46.
THOMAS v. GONZALES 6133
ducting a thorough review, concluded that “[o]ur case law has
suggested, with some certainty, that a family constitutes a
cognizable ‘particular social group’ within the meaning of the
law.” Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997) (citing
Tzankov v. INS, 107 F.3d 516, 520 (7th Cir. 1997); Najafi v.
INS, 104 F.3d 943, 947 (7th Cir. 1997); Sharif v. INS, 87 F.3d
932, 936 (7th Cir. 1996)); see also Lwin v. INS, 144 F.3d 505,
511 (7th Cir. 1998) (“[W]e have indirectly treated the family
relationship as a basis for identifying a ‘particular social
group.’ ”) (citations omitted). In Hamzehi v. INS, 64 F.3d
1240, 1243 (8th Cir. 1995), the Eighth Circuit implicitly rec-
ognized family membership as a basis for refugee status by
concluding that, to be eligible for refugee status, the petitioner
“must show why these rather dated events provide an objec-
tively reasonable basis for present fear of [persecution] . . . on
the basis of her family’s political opinions.” We have found
no out of circuit authority to the contrary.
[8] Inexplicably, our circuit has generated two diverging
lines of authority on whether family or kinship ties may give
rise to a particular social group. At least two panel decisions
have squarely held that a “family” cannot constitute a “partic-
ular social group” for the purposes of the refugee statute. In
Estrada-Posadas v. INS, 924 F.2d 916, 919 (9th Cir. 1991),
we held that the petitioner failed to show a well-founded fear
of persecution on account of a ground specified in the INA
even though she demonstrated persecution of her uncle, cou-
sin, and mother’s relatives:
Estrada argues that persecution based on member-
ship in her family should qualify as “persecution on
account of . . . membership in a particular social
group” under the Act. 8 U.S.C. § 1101(a)(42)(A).
However, she cites to no case that extends the con-
cept of persecution of a social group to the persecu-
tion of a family, and we hold it does not. If Congress
had intended to grant refugee status on account of
“family membership,” it would have said so. Thus,
6134 THOMAS v. GONZALES
Estrada has not shown that any persecution would be
on account of her membership in any social group.
We recognized the breadth and significance of the Estrada-
Posadas holding in Hernandez-Montiel v. INS, 225 F.3d
1084, 1092 n.4 (9th Cir. 2000), where we said: “We have
since held that a family cannot constitute a particular social
group under 8 U.S.C. § 1101(a)(42)(A). See Estrada-Posadas
. . . .”
[9] We have also held the opposite: that a family is a cogni-
zable social group in the asylum context. In Sanchez-Trujillo
v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986), we stated:
Perhaps a prototypical example of a “particular
social group” would consist of the immediate mem-
bers of a certain family, the family being a focus of
fundamental affiliational concerns and common
interests for most people. In Hernandez-Ortiz [v.
INS, 777 F.2d 509, 516 (9th Cir. 1985)], we regarded
evidence of persecution directed against a family
unit as relevant in determining refugee status, noting
that a family was “a small, readily identifiable
group.”
Several of our more recent cases have affirmed this proposi-
tion. See Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004)
(“Like our sister circuits, we recognize that a family is a
social group.”); Molina-Estrada v. INS, 293 F.3d 1089, 1095
(9th Cir. 2002) (“We have recognized that, in some circum-
stances, a family constitutes a social group for purposes of the
asylum and withholding-of-removal statutes.”) (citations
omitted); Pedro-Mateo v. INS, 224 F.3d 1147, 1151 (9th Cir.
2000) (“Pedro-Mateo offers neither case law nor analysis to
contradict our previous statement that the ‘prototypical exam-
ple’ of a social group would be ‘immediate members of a cer-
tain family.’ ”) (citations omitted); Mgoian v. INS, 184 F.3d
1029, 1036 (9th Cir. 1999) (“[W]e have held that a particular
THOMAS v. GONZALES 6135
social group implies a collection of people closely affiliated
with each other, with the prototypical example of a particular
social group [ ]consisting of the immediate members of a cer-
tain family.”) (internal citations and quotations omitted).
[10] Reconciling these contrary lines of intracircuit author-
ity is not possible. Therefore, consistent with the views of the
BIA and our sister circuits, we hold that a family may consti-
tute a social group for the purposes of the refugee statutes. We
overrule all of our prior decisions that expressly or implicitly
have held that a family may not constitute a particular social
group within the meaning of 8 U.S.C. § 1101(a)(42)(A). Our
holding defers to both the BIA’s stated interpretation of the
statutory phrase “particular social group,” and the BIA’s pre-
cedent.
D. Harm inflicted on account of membership in a
“particular social group”
The IJ held that Michelle Thomas had not demonstrated eli-
gibility for relief “on any of the five grounds.” We disagree,
and hold that the Thomas family constitutes a particular social
group within the meaning of 8 U.S.C. § 1101(a)(42)(A)
because the family demonstrated that the harm they suffered
was solely a result of their common and immutable kinship
ties with Boss Ronnie.
[11] “[P]ersecution ‘on account of’ membership in a social
group . . . includes what the persecutor perceives to be the
applicant’s membership in a social group.” Amanfi v. Ash-
croft, 328 F.3d 719, 730 (9th Cir. 2003); see also Popova v.
INS, 273 F.3d 1251, 1258 (9th Cir. 2001) (“To establish a cor-
relation between [petitioner’s] persecution and her political
opinion and religion, she must show, by direct or circumstan-
tial evidence, her persecutors’ motive.”) (citations omitted);
Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997) (“In
establishing an imputed political opinion, the focus of inquiry
6136 THOMAS v. GONZALES
turns away from the views of the victim to the views of the
persecutor.”).
The perpetrators of the threats to and abuse of the Thomas
family tied that abuse to the Thomas family’s relationship to
Boss Ronnie. In one incident, the perpetrator asked Michelle
if she knew Boss Ronnie. The perpetrator then proceeded to
threaten that he would “come back and cut [her] throat.” In
two other incidents, Michelle noticed that some of the attack-
ers wore overalls bearing the logo of Strongshore
Construction—the company for which her father-in-law
worked as the cruel and racist foreman. Also, each attack or
threat occurred after a confrontation of some sort at Strong-
shore Construction. Michelle’s brother-in-law, son to Boss
Ronnie, also suffered threats and attacks. His house was bro-
ken into, his car repeatedly vandalized, and his family repeat-
edly threatened. The perpetrators targeted the Thomas family
because Boss Ronnie himself was impossible to reach
directly. Boss Ronnie’s house was like a “fortress,” with large
impenetrable gates. Moreover, Boss Ronnie owned weapons
with which to protect himself.
The government argues that the threats and violence against
the Thomases were merely retaliation for personal conduct or
a result of the country’s high crime rate. The IJ held, some-
what inartfully, that the harmful conduct was a manifestation
of random crime, which in turn sometimes had racial over-
tones, and rejected the Thomases’ alternative explanations,
including the link to the animus toward Boss Ronnie on the
part of his employees. However, as explained above, the
record compels the conclusion that the harm suffered by the
Thomases was not the result of random crime, but was perpe-
trated on account of their family membership, specifically on
account of the family relationship with Boss Ronnie. Further-
more, the reason for the animosity toward Boss Ronnie that
led to the harm to the family is not relevant; what is critical
is that the harm suffered by the Thomases was on account of
their membership in a protected group.
THOMAS v. GONZALES 6137
[12] We decline to hold, as the government urges, that a
family can constitute a particular social group only when the
alleged persecution on that ground is intertwined with one of
the other four grounds enumerated in 8 U.S.C.
§§ 1101(a)(42)(A), 1231(b)(3)(A). It is true that for kinship
ties to be “recognizable and discrete” such that “would-be
persecutors could identify [individuals] as members of the
purported group,” those ties often will be linked to race, reli-
gion, or political affiliation. Gomez v. INS, 947 F.2d 660, 664
(2d Cir. 1991); see also In re H-, 21 I. & N. Dec. at 342 (cit-
ing Gomez). Nonetheless, there is nothing in the statute itself,
nor in the BIA’s interpretation of the relevant provisions, to
suggest that membership in a family is insufficient, standing
alone, to constitute a particular social group in the context of
establishing eligibility for asylum or withholding of removal.
We agree with the First Circuit that we must “follow[ ] the
language of the statute in recognizing that social group perse-
cution can be an independent basis for refugee status.”
Gebremichael, 10 F.3d at 35 n.20.
The government also argues that recognizing a family as a
particular social group will confer refugee status on all vic-
tims of vendettas or feuds that have swept in the family of the
initial target, and all victims of “street wars” between rival
criminal families. In view of the statutory mechanism as a
whole, that concern is unfounded. Once an asylum applicant
demonstrates persecution on account of kinship ties, she must
still show that the persecution is at the hands of the govern-
ment or persons or organizations that the government is
unable or unwilling to control. Sangha, 103 F.3d at 1487. Fur-
ther, any presumption of a well-founded fear of future perse-
cution may be rebutted by showing that the alleged
persecution may be avoided by relocation within the country
or by a showing of changed circumstances. 8 C.F.R.
§ 1208.13(b)(1)(i).
Accordingly, only when the alleged persecution precludes
relocation and exceeds the government’s ability or will to
6138 THOMAS v. GONZALES
control can a claim of persecution based on membership in a
particular family lead to eligibility for asylum. It is, of course,
far more likely that persecution will reach those proportions
when kinship ties are mingled with political, religious, racial,
or ethnic affinities. However, we see no reason to erect artifi-
cial barriers to asylum eligibility merely to address a concern
that is more properly resolved elsewhere in the analysis of a
particular claim of asylum. Again, we are confident that the
statutory mechanism as a whole is capable of separating meri-
torious claims of persecution on the ground of kinship ties
from claims based on mere personal retribution or generalized
crime.
[13] We therefore hold that the Thomases were targeted on
account of their shared, immutable characteristic, namely,
their familial relationship with Boss Ronnie. The Thomases
were attacked and threatened because they belong to the par-
ticular social group of “persons related to Boss Ronnie,” for
the purposes of § 1101. Therefore, the IJ’s conclusion that the
attacks and threats the Thomas family suffered did not take
place “on account of” one of the five statutory grounds is not
supported by substantial evidence.
IV. CONCLUSION
Because the IJ and the BIA erroneously concluded that the
Thomases failed to connect the alleged persecution to one of
the five statutory grounds, the agency did not determine
whether the threats and attacks directed at the Thomases rose
to the level of persecution. As required by INS v. Ventura, 357
U.S. 12 (2002), we remand the case to the BIA so that it can
make that determination—as well as decide any additional
issues, such as whether the government of South Africa was
unwilling or unable to control the persecution, whether the
Thomases have a well-founded fear of future persecution, and
the ultimate issue of whether the Thomases are eligible for
asylum—in the first instance.
PETITION GRANTED; REMANDED.
THOMAS v. GONZALES 6139
RYMER, Circuit Judge, with whom O’SCANNLAIN,
KLEINFELD, and BEA, Circuit Judges, join, concurring in
part and dissenting in part:
I part company with the majority’s holding that the Thomas
family constitutes a “particular social group” under 8 U.S.C.
§ 1101(a)(42)(A),1 because the issue whether a nuclear fam-
ily, without more, is a “particular social group” has never
been vetted by the Board of Immigration Appeals (BIA).
I agree with the majority that our law on whether a family
can be a “particular social group” for purposes of refugee sta-
tus is in disarray. I also agree that, having taken the case en
banc, we should wipe the slate clean. And I agree that, in light
of the BIA’s decision in Matter of Acosta, 19 I. & N. Dec.
211 (BIA 1985), overruled on other grounds by Matter of
Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987), and in the
absence of more specific guidance from the BIA, a family
should not be foreclosed from being a “particular social
group.”
However, I disagree that we should go further than to hold
that a family may be a “particular social group.” The BIA has
never considered whether a family such as the Thomas family
is a “particular social group.” It did not do so in this case, no
doubt because Thomas’s appeal failed to focus on this ground.
The question is important, and has profound implications. We
have no business deciding such a question without the BIA’s
having first addressed it because we owe deference to the
BIA’s interpretation and application of the immigration laws.
INS v. Ventura, 537 U.S. 12 (2002) (per curiam), makes this
clear. Instead, having settled our law and established that, in
1
Section 1101(a)(42)(A) defines a “refugee” as any person who is
unable or unwilling to return to, or avail herself of the protection of, the
country in which she last resided because of persecution or a well-founded
fear of future persecution “on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.”
6140 THOMAS v. GONZALES
accord with existing BIA precedent, a family may be a “par-
ticular social group,” I would remand for the BIA to say under
what circumstances a family is a “particular social group” and
whether, under whatever test the BIA adopts, the Thomas
family qualifies.
Accordingly, I join the majority’s decision that a family
may be a particular social group, but dissent from its remain-
ing discussion.
I
Michelle Thomas, her husband David, and their two chil-
dren, Tyneal and Shaldon, are natives and citizens of South
Africa who entered the United States on May 28, 1997 as visi-
tors. They applied for asylum within a year, but their requests
were denied.
The Thomases lived in Durban, where David was a fire-
fighter. The evidence at the hearing on their renewed request
for asylum and withholding of removal showed that
Michelle’s father-in-law was a foreman at Strongshore Con-
struction, a large South African company, who was known as
“Boss Ronnie.” Boss Ronnie was a racist and abusive to his
black workers. Michelle Thomas testified that Strongshore
workers were retaliating against her family because of Boss
Ronnie. She recounted five incidents that had occurred: In
February of 1996 the family dog died, probably from poison.
Thomas reported this to the police, but the police said they
had too many serious crimes to deal with to make a report. On
March 4, 1996, the Thomases’ car was vandalized. The police
were called, showed up in 10 minutes, and patrolled the area
but found no one. In May of 1996 human feces were found
at the door of the Thomases’ house. In December of 1996 a
Strongshore worker threatened to come back and cut
Michelle’s throat. And in March of 1997 four men, who
included someone wearing Strongshore overalls, tried to kid-
nap Tyneal. It is not clear whether either of these incidents
THOMAS v. GONZALES 6141
was reported to the police. Boss Ronnie retired in February
1998.
Although she checked the box for persecution on account
of “membership in a particular social group” on her asylum
application, Thomas argued to the immigration judge (IJ) that
she was persecuted partly “on account of political opinion”
and partly “on account of race.” The IJ’s decision noted that
Thomas’s position was that she and her family were being
attacked because of their race. The IJ found that they were
suffering from personal retaliation, that there was no
government-sponsored violence of blacks against whites, and
that Thomas’s personal problems were not on account of the
proffered ground of race, or political opinion. Thus, the IJ
concluded that Thomas failed to carry her burden of proving
that she and her family suffered persecution “based on any of
the five statutory grounds whether it is race or political opin-
ion.”
Thomas appealed to the BIA. She sought review for four
reasons: (1) the IJ improperly rejected testimony; (2) the IJ
failed to give sufficient weight to documentary evidence; (3)
the IJ misconstrued the documentary evidence by failing to
conclude that the government is unable to protect its citizens
from violent crime; and (4) the IJ improperly concluded that
Thomas’s testimony was not credible. Her premise was that
“[t]he record established that the Respondents suffered from
past persecution on account of their race,” and her claim of
error was that the IJ failed to recognize that “[t]he issue is not
whether the government is an active participant in the vio-
lence against whites, but rather its transparent inability to pro-
tect white South Africans from violent crime and
lawlessness.” The BIA affirmed the results of the IJ’s deci-
sion.
II
Exhaustion of administrative remedies is a prerequisite to
jurisdiction, 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358
6142 THOMAS v. GONZALES
F.3d 674, 677 (9th Cir. 2004), and there is a question whether
the requirements are met in this case. On the one hand,
Thomas did not specify membership in a particular social
group as a basis of her appeal to the BIA, which we expect
petitioners to do in order to exhaust. See Zara v. Ashcroft, 383
F.3d 927, 930 (9th Cir. 2004). Clear notice of the basis for
appeal is important because the purpose of exhaustion “is to
give [the] . . . agency the opportunity to resolve a controversy
or correct its own errors before judicial intervention.” Id. at
931. On the other hand, reasonable minds can differ about
what the record shows in this case, as it does refer to “mem-
bership in a particular social group” and Thomas’s fear of
harm from black South Africans “who held a grudge against
her and her family” because of Boss Ronnie’s abusive actions.
Accepting my colleagues’ conclusion that the issue is techni-
cally exhausted, we nevertheless do not have license to go
beyond what is necessary to align our law with Matter of
Acosta. We have accomplished this by saying that a family
may be a “particular social group”; beyond this, we should
remand for the BIA to determine whether the Thomas family
is a “particular social group.”
This is so for a number of reasons. Even if the issue
whether the Thomas family is a “particular social group” were
raised, there is no question that it was not ruled upon. Neither
the immigration judge nor the BIA discussed this ground at
all. The agency’s focus, like Thomas’s, was on race. In these
circumstances we cannot infer from the IJ’s conclusion that
Thomas failed to carry her burden of proving persecution
“based on any of the five statutory grounds whether it is race
or political opinion” that the IJ, or the BIA, actually consid-
ered the ground of membership in a particular social group.
When this is the case, we are obliged to remand rather than
determine the claim ourselves. Ventura, 537 U.S. at 14.
Further, we are convened en banc primarily for the purpose
of curing an intra-circuit conflict. See Fed. R. App. P. 35(a)(1)
(establishing uniformity as a basis for rehearing en banc). As
THOMAS v. GONZALES 6143
the majority opinion explains, some of our decisions have
held that a family cannot constitute a “particular social
group,” while others have indicated the opposite. Resolving
this inconsistency has evident value given the huge number of
asylum cases that depend upon clarity in the law of this cir-
cuit. However, uniformity can be achieved by holding that a
family “may” be a “particular social group” for purposes of
§ 1101(a)(42)(A), as the majority does. Maj. op. at 6135. I
have no quarrel with this because it follows from what the
BIA said in Matter of Acosta that a family, which has “kin-
ship ties,” may be a “particular social group.” Put differently,
to clarify that a family is not foreclosed from being a “particu-
lar social group” simply — and properly — brings this circuit
into line with the BIA’s own interpretation of
§ 1101(a)(42)(A) and, to this extent, is faithful to the principle
that “a judicial judgment cannot be made to do service for an
administrative judgment.” Ventura, 537 U.S. at 16 (quoting
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)). But to go fur-
ther, as the majority does by holding that the Thomas family
is a “particular social group,” transgresses this principle by
going further than the BIA has ever gone.
The BIA has never addressed whether a nuclear family is
a “particular social group.” It has held that taxi drivers are not
a particular social group, Matter of Acosta, 19 I. & N. Dec.
211 (BIA 1985); that young women of the Tchamba-
Kunsuntu Tribe of northern Togo who did not undergo female
genital mutilation as practiced by that Tribe are a particular
social group, In re Fauziya Kasinga, 21 I. & N. Dec. 357(BIA 1996); that the Marehan, a subclan of the Somalian
Darood clan who share ties of kinship and linguistic common-
alities, are a particular social group, In re H-, 21 I. & N. Dec.
337, 342-43 (BIA 1996); and that homosexuals in Cuba are
a particular social group, Matter of Toboso-Alfonso, 20 I. &
N. Dec. 819 (BIA 1990). It is not immediately obvious that
an ordinary family, albeit a social group, is a particular social
group akin to a clan or tribe for purposes of §1101(a)(42)(A).
It may be, or it may not be without other indicia of societal
6144 THOMAS v. GONZALES
recognition. In its considered judgment the BIA may believe
that family-plus is required for an ordinary family to qualify,
or it may not. However, these are matters for the BIA, not for
us, to sort out in the first instance.
The law entrusts the agency to make basic asylum eligibil-
ity decisions. See, e.g., 8 U.S.C. § 1158(a); INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). We owe Chevron defer-
ence to the BIA’s interpretation of the immigration laws.
Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984). And the Supreme Court has made it clear as
can be that “a court of appeals should remand a case to an
agency for decision of a matter that statutes place primarily in
agency hands. This principle has obvious importance in the
immigration context.” Ventura, 537 U.S. at 16-17. In this case
as in Ventura,
every consideration that classically supports the
law’s ordinary remand requirement does so here.
The agency can bring its expertise to bear upon the
matter; it can evaluate the evidence; it can make an
initial determination; and, in doing so, it can,
through informed discussion and analysis, help a
court later determine whether its decision exceeds
the leeway that the law provides.
Id. at 17.
For all these reasons we should refrain from deciding our-
selves if the Thomas family is a “particular social group.” The
majority remands for the BIA to determine whether the
threats and attacks against the Thomases rose to the level of
persecution and for consideration of other issues such as
whether the government of South Africa was unwilling or
unable to control the alleged persecution, and whether the
Thomases have a well-founded fear of future persecution.
There is no logical or practical reason for not also remanding
THOMAS v. GONZALES 6145
the unaddressed issue of whether the Thomases are a “partic-
ular social group.”
Accordingly, I would remand now that we have clarified
the law of the circuit that a family may be a “particular social
group.” We should not substitute our judgment for the agen-
cy’s before it has had an opportunity to draw on its expertise
and exercise its discretion. I therefore dissent from the majori-
ty’s holding, without prior BIA consideration, that the
Thomas family is a “particular social group.”