No “Ocular Visibility” in PSG Analysis: First Circuit Remands for Clear, Legally Sound Social-Distinction Reasoning in Alvarez Mendoza v. Bondi

No “Ocular Visibility” in PSG Analysis: First Circuit Remands for Clear, Legally Sound Social-Distinction Reasoning in Alvarez Mendoza v. Bondi

Introduction

In Alvarez Mendoza v. Bondi, the First Circuit granted a petition for review and remanded to the Board of Immigration Appeals (BIA) after concluding that the agency’s denial of withholding of removal may have been tainted by an impermissible “ocular visibility” standard in the analysis of a “particular social group” (PSG). The petitioner, a Salvadoran national assaulted in Massachusetts by an MS‑13 member and subsequently threatened for cooperating with police, sought withholding of removal under the Immigration and Nationality Act (INA) and protection under the Convention Against Torture (CAT).

Central to the case is whether the proposed PSG—“victims of gangs who give statements to police in pending criminal proceedings”—is legally cognizable, with the focus on the “social distinction” prong. The Immigration Judge (IJ) concluded the group was not cognizable and further suggested the petitioner was not a member; the BIA ultimately affirmed. The First Circuit, however, faulted the agency’s reasoning, noting that the IJ’s and BIA’s discussion appeared to require a show‑on‑sight identifiability of group members—an approach explicitly rejected by the BIA itself in Matter of M‑E‑V‑G‑.

The Court also dismissed as moot a separate petition challenging the BIA’s denial of a motion to reopen for a continuance or administrative closure pending adjudication of a U‑visa petition, given the remand it ordered on the withholding/CAT claims. The opinion offers important guidance on PSG analysis, agency decision clarity under Chenery, and case‑management tools when a U‑visa is pending.

Summary of the Opinion

  • The First Circuit granted the petition for review of the BIA’s merits decision and remanded. It held that the BIA’s affirmation of the IJ’s “social distinction” analysis may have endorsed a legally erroneous “ocular visibility” standard. The Court emphasized that “social distinction” does not require members to be identifiable on sight; rather, the question is whether society perceives the group as such.
  • The Court found ambiguity in the BIA’s reasoning—both in its repeated reliance on the IJ’s analysis and in its phrasing that could misstate the scope of the PSG. Citing SEC v. Chenery Corp., it remanded for the agency to clarify the legal basis for its decision.
  • The Court did not decide whether the petitioner’s PSG is cognizable or whether the record established social distinction; nor did it hold that El Salvador’s witness‑protection law (Decreto No. 1029/2006) compels a finding of social distinction. It flagged potential distinctions from the Ninth Circuit’s Henriquez‑Rivas and invited consideration of the BIA’s Matter of H‑L‑S‑A‑.
  • The Court dismissed as moot the separate petition challenging denial of reopening for U‑visa‑related continuance/administrative closure, but expressly authorized the petitioner to seek such relief on remand. It cautioned that failure to apply Matter of Sanchez Sosa could risk an abuse of discretion under Benitez v. Wilkinson.
  • As to CAT, the Court did not reach alleged legal error but allowed renewal on remand in light of the material change that the assailant has since been deported to El Salvador, directing evaluation on an updated record if new evidence is presented.

Detailed Analysis

1) Precedents and Authorities Cited

  • PSG Framework
    • Matter of M‑E‑V‑G‑, 26 I. & N. Dec. 227 (BIA 2014): Clarified that “social visibility” means “social distinction”—society’s perception of the group—not literal on‑sight identifiability. It emphasized: “Society can consider persons to comprise a group without being able to identify the group’s members on sight.”
    • Paiz‑Morales v. Lynch, 795 F.3d 238 (1st Cir. 2015): Adopted the three‑part PSG test—immutability, particularity, and social distinction—and acknowledged the BIA’s shift from “social visibility” to “social distinction.” It reiterated that “literal ocular visibility ‘is not, and never has been, a prerequisite.’”
    • Espinoza‑Ochoa v. Garland, 89 F.4th 222 (1st Cir. 2023): Reaffirmed that protective laws can support social distinction and noted that groups such as those defined by sexual orientation need not be “visibly” identifiable to qualify.
    • Ferreira v. Garland, 97 F.4th 36 (1st Cir. 2024), and Sanchez‑Vasquez v. Garland, 994 F.3d 40 (1st Cir. 2021): Recited core standards for withholding, including the “clear probability” of persecution “on account of” a protected ground, and explained how the First Circuit reviews BIA decisions, including incorporated IJ reasoning.
    • Carvalho‑Frois v. Holder, 667 F.3d 69 (1st Cir. 2012): Held that “witnesses to a serious crime” were not socially distinct in Brazil where recognition appeared limited to persecutors; and that persecutors’ views do not necessarily reflect society’s.
  • Witness/Cooperator PSGs
    • Henriquez‑Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc): Found error in the BIA’s rejection of “people who testified against Salvadoran gang members.” The court took judicial notice of El Salvador’s Special Law for Victim and Witness Protection (Decreto No. 1029/2006) and considered it strong evidence of social recognition.
    • Matter of H‑L‑S‑A‑, 28 I. & N. Dec. 228 (BIA 2021): Concluded that cooperation with law enforcement may satisfy PSG requirements if the cooperation is public—especially testimony in open court—and the society recognizes and protects such cooperation. The BIA rejected a broad “prosecutorial witnesses” group where the cooperation was not public and cautioned against worldwide group definitions.
  • Administrative Law and Standards of Review
    • SEC v. Chenery Corp., 332 U.S. 194 (1947): Requires agencies to articulate their reasoning with sufficient clarity; reviewing courts should not guess at the basis of agency action.
    • Alvizures‑Gomes v. Lynch, 830 F.3d 49 (1st Cir. 2016): The First Circuit reviews BIA legal errors de novo.
    • Yee v. City of Escondido, 503 U.S. 519 (1992): Parties may advance additional arguments on appeal in support of a preserved claim; they are not limited to the precise arguments raised below.
  • Case‑Management & U‑Visa Context
    • Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (BIA 2012): Provides the framework for considering continuances/administrative closure pending U‑visa adjudication.
    • Benitez v. Wilkinson, 987 F.3d 46 (1st Cir. 2021): Failure to apply governing BIA precedent (e.g., Sanchez Sosa) can be an abuse of discretion.

2) The Court’s Legal Reasoning

The First Circuit’s reversal rests on two intertwined propositions: (1) the BIA appeared to endorse an IJ analysis that improperly required “ocular” identifiability under the social‑distinction prong, and (2) the BIA’s reasoning was too ambiguous to permit meaningful review under Chenery.

  • Improper reliance on “ocular visibility.” The IJ’s social‑distinction analysis repeated, in various forms, that “it is unclear how Salvadoran society could even measure or identify” who belongs in the PSG. The BIA then stated the IJ found “without error” that the group is not socially distinct and twice cited the pages containing the IJ’s particularity/social‑distinction analysis. Because “social distinction” does not require that society be able to “point out” or visually detect members on sight, this echoed the very misunderstanding that Matter of M‑E‑V‑G‑ repudiated. The First Circuit concluded the agency’s decision may have been “influenced by improper ocular‑visibility reasoning,” warranting remand.
  • Ambiguity in the BIA’s framing of the PSG and the evidence. The BIA wrote that the petitioner’s evidence did “not speak to whether all individuals who give statements in any criminal proceeding creates a socially distinct group.” The parties agreed that phrasing overstated the petitioner’s PSG (which is limited to victims of gangs who give statements in pending criminal proceedings), but the First Circuit left to the agency the exact gloss the BIA intended. The Court suggested the BIA might have been noting differences from Henriquez‑Rivas (open‑court testimony in El Salvador vs. a statement to police in the United States) or underscoring that a broad statute protecting victims/witnesses of all crimes is not conclusive proof of social distinction for a narrower gang‑victim cooperator group. Either way, the ambiguity compounded the need for a clear restatement of the BIA’s reasoning on remand.
  • De novo review of legal error; exhaustion satisfied. The Court reviewed the alleged legal errors de novo and rejected the government’s exhaustion argument. The petitioner preserved a challenge to the IJ’s legal framework, and his “ocular visibility” argument was a permissible elaboration of that claim.
  • Chenery clarity. Because the IJ’s and BIA’s reasoning was unclear and potentially rested on an erroneous legal premise, the Court remanded for the agency to supply a clear, correct basis for its decision.
  • Scope and limits of the remand. The Court expressly took “no view” on the ultimate validity of the PSG or the outcome of withholding. It flagged two distinctions from Henriquez‑Rivas: the cooperation here occurred in the United States and did not involve public testimony. It further called the parties’ attention to Matter of H‑L‑S‑A‑, which—although not binding in the First Circuit—articulates a test that makes “public” cooperation, particularly testimony in open court, highly probative of social distinction.

3) Likely Impact and Practical Implications

  • Reaffirmation with teeth: No “ocular visibility.” This opinion strengthens in the First Circuit what the BIA announced in M‑E‑V‑G‑: social distinction turns on societal perception, not on whether an IJ or the public can identify group members “on sight.” IJs and the BIA must avoid framing that implies the absence of social distinction simply because members are not physically discernible.
  • Agency must explain itself. Ambiguous reasoning—especially when the BIA purports to adopt or credit portions of an IJ decision that reflect a potential legal error—will trigger Chenery remands. Expect more remands where social‑distinction analyses collapse into “who could pick them out” questions, or where the BIA blurs PSG scope.
  • Evidence of social distinction for cooperator/witness PSGs. Protective laws (like El Salvador’s Decreto No. 1029/2006) can be powerful evidence of societal recognition, but they are not silver bullets. The remand signals that adjudicators must assess whether the specific proposed group—here, gang victims who gave statements to police in pending criminal proceedings—is perceived as a distinct class in the relevant society (El Salvador), as opposed to “any witness” or “all witnesses everywhere.” The opinion also highlights that public testimony (especially in open court) may carry special weight per H‑L‑S‑A‑.
  • Geographic and “public” dimensions. Because the cooperation at issue occurred in the United States, the agency will likely test whether Salvadoran society perceives such foreign-based cooperators as a distinct class, and whether the lack of public testimony undercuts social distinction. Practitioners may need to develop record evidence that Salvadoran media, legal frameworks, or community attitudes recognize and mark cooperators against MS‑13—even if the cooperation occurred abroad and was not public.
  • U‑visa practice on remand. The Court’s guidance reinforces that noncitizens with pending U‑visas can seek continuances or administrative closure; adjudicators are expected to apply Sanchez Sosa. Overlooking that framework risks an abuse of discretion under Benitez.
  • CAT reconsideration with updated facts. The deportation of the assailant to El Salvador materially alters risk calculus for torture claims. Petitioners should marshal updated proof of risk and potential government acquiescence; adjudicators must assess renewed CAT claims on refreshed records.

Key Concepts Simplified

  • Withholding of Removal: A mandatory protection if the applicant shows a “clear probability” (more likely than not) of persecution in the country of removal on account of race, religion, nationality, political opinion, or membership in a particular social group.
  • Particular Social Group (PSG): Must satisfy three elements:
    • Immutability: Members share a characteristic they cannot change (or should not be required to change).
    • Particularity: The group is clearly defined with objective boundaries—adjudicators should have a “clear benchmark” for who is in and who is out.
    • Social Distinction: The relevant society perceives the group as a distinct class. This does not require that members be visibly identifiable (no “ocular visibility” requirement).
  • “Ocular Visibility” vs. “Social Distinction”: Ocular visibility asks whether you can tell who belongs by looking at them. Social distinction asks whether society recognizes the group conceptually, regardless of physical identifiability. The BIA has repudiated ocular visibility as a requirement.
  • Chenery Principle: Courts review agency decisions based on the reasons the agency gave. If the reasoning is unclear or legally mistaken, courts remand; judges will not guess or reengineer the agency’s rationale.
  • Administrative Closure/Continuance for U‑Visas: Discretionary tools to pause removal cases while USCIS adjudicates a U‑visa petition for crime victims who assist law enforcement. Under Sanchez Sosa, adjudicators must weigh factors like DHS’s position, likelihood of visa adjudication, and public interest.
  • CAT Protection: Requires showing that it is more likely than not the applicant would be tortured by, or with the acquiescence of, a public official if removed. Changed circumstances (e.g., persecutor’s return to the country of removal) can materially alter the analysis.

Practice Notes and Record‑Building Tips

  • Frame PSGs precisely. Avoid global or amorphous formulations that invite particularity challenges (e.g., “worldwide witnesses”). Tie the group to the relevant society and the specific context (e.g., “in El Salvador” or “against Salvadoran gangs”), recognizing strategic trade‑offs if the cooperation occurred abroad.
  • Prove social distinction with society‑level evidence. Go beyond persecutors’ views. Consider laws like Decreto No. 1029/2006, government programs, media accounts, expert testimony, NGO reports, and community practices indicating that gang‑targeted cooperators are recognized as a distinct, vulnerable class in El Salvador.
  • Public cooperation matters. If testimony or cooperation was public (especially in open court), document it. If not, present evidence that the society nonetheless recognizes and marks such cooperators (e.g., notoriety of gang retaliation against police informants, law‑enforcement advisories, or public witness‑protection discourse).
  • Keep “ocular visibility” out of submissions. Do not argue (or accept agency reasoning) that a lack of on‑sight identifiability defeats social distinction. Emphasize societal perception and recognition.
  • U‑visa interface. On remand, contemporaneously pursue a continuance or administrative closure, explicitly citing Sanchez Sosa and addressing each factor. Provide updates on USCIS processing stages.
  • CAT updates. If facts have changed (e.g., persecutor’s deportation), submit updated evidence on risk, patterns of gang violence, and state involvement or acquiescence.

Conclusion

Alvarez Mendoza v. Bondi is a robust reminder that “social distinction” in PSG analysis is about societal perception, not whether members can be identified on sight. By remanding where the agency’s analysis suggested an “ocular visibility” requirement and where its reasoning was ambiguous, the First Circuit enforced both substantive asylum/withholding doctrine (as clarified in M‑E‑V‑G‑ and First Circuit precedent) and foundational administrative law (Chenery).

The Court did not resolve the PSG’s cognizability, but it pointed to key considerations on remand: the non‑public, U.S.‑based nature of the cooperation; the relevance (but not dispositive force) of El Salvador’s witness‑protection law; and the potential applicability of Matter of H‑L‑S‑A‑’s emphasis on public testimony. The decision also provides practical guidance on handling U‑visa‑related continuances/administrative closures and invites renewed CAT claims in light of changed facts.

Going forward, immigration adjudicators in the First Circuit must avoid collapsing social distinction into an on‑sight identifiability test and must articulate clear, legally sound reasoning. Litigants should tailor PSGs with precision, build society‑focused records, and be prepared to address both the “public” dimension of cooperation and the specific ways Salvadoran society recognizes and protects (or fails to protect) such individuals.

Case Details

Year: 2025
Court: Court of Appeals for the First Circuit

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