No “Ocular Visibility” Requirement for Social Distinction in Particular Social Group Analysis: The First Circuit’s Remand in Alvarez Mendoza v. Bondi

No “Ocular Visibility” Requirement for Social Distinction in Particular Social Group Analysis: The First Circuit’s Remand in Alvarez Mendoza v. Bondi

Introduction

In Alvarez Mendoza v. Bondi (1st Cir. Mar. 31, 2025), the First Circuit granted a petition for review and remanded a Board of Immigration Appeals (BIA) decision denying withholding of removal to a Salvadoran national who alleged persecution by MS-13 on account of his membership in a proposed particular social group (PSG): “victims of gangs who give statements to police in pending criminal proceedings.” The court held that the Immigration Judge (IJ), and potentially the BIA by endorsement, may have improperly required “ocular visibility” (on-sight identifiability) to satisfy the “social distinction” element of PSG cognizability—a standard the BIA itself has disavowed. Because the agency’s rationale was unclear and may have been tainted by this legal error, the court remanded under the Chenery doctrine for clarification and proper application of the governing legal standards.

The panel (Judges Montecalvo, Howard, and Aframe) also dismissed as moot a second petition seeking review of the BIA’s denial of a motion to reopen for the limited purpose of pursuing a continuance or administrative closure while USCIS adjudicates a pending U visa petition. The court explained that its remand necessarily reopens proceedings and invited the petitioner to renew any such motion below, cautioning the BIA to apply its Sanchez Sosa framework.

Summary of the Opinion

  • The First Circuit granted the petition for review of the BIA’s dismissal of applications for withholding of removal under the INA and CAT protection because the agency’s decision appeared to rely on, or at least failed to dispel reliance on, a discredited “ocular visibility” conception of “social distinction” in the PSG analysis.
  • The court emphasized that “social distinction” requires societal perception of a group, not that members be identifiable “on sight,” citing Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014).
  • The court did not resolve whether the BIA also misdescribed the scope of the petitioner’s PSG; it found the agency’s statement ambiguous and declined to decide the issue in light of the remand for proper legal analysis.
  • The court flagged the BIA’s 2021 decision in Matter of H-L-S-A-, 28 I. & N. Dec. 228, as “obviously” relevant on remand, particularly regarding the “public” nature of cooperation with law enforcement and societal recognition.
  • The separate petition challenging the denial of a motion to reopen for a continuance or administrative closure pending U visa adjudication was dismissed as moot, with instructions that the petitioner may raise such requests in the reopened proceedings; failure to apply Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (BIA 2012), risks abuse of discretion.
  • CAT issues were not reached; given a material change in circumstances (the assailant’s deportation to El Salvador), the petitioner may renew CAT on remand with an updated record.

Analysis

Precedents and Authorities Cited

  • Statutes and Regulations:
    • Withholding of removal under the INA, 8 U.S.C. § 1231(b)(3)(A) (protection from removal where there is a clear probability of persecution on account of a protected ground).
    • Entry without inspection inadmissibility ground, 8 U.S.C. § 1182(a)(6)(A)(i).
    • CAT implementing regulations, 8 C.F.R. §§ 1208.16(c)–1208.18.
  • First Circuit and BIA PSG Framework:
    • Paiz-Morales v. Lynch, 795 F.3d 238 (1st Cir. 2015): Affirms three-part PSG test: (1) immutability, (2) particularity, (3) social distinction. Recognizes BIA’s clarification that “social distinction” does not require literal visibility.
    • Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014): Replaces “social visibility” with “social distinction” to avoid confusion with “ocular visibility.” A group need not be “seen” to be socially distinct; it must be perceived as a group by society.
    • Espinoza-Ochoa v. Garland, 89 F.4th 222 (1st Cir. 2023): Restates withholding standard; notes that protective laws can support social distinction.
    • Ferreira v. Garland, 97 F.4th 36 (1st Cir. 2024): Confirms PSG as a protected ground and sets the scope of review (IJ rulings considered to the extent incorporated by the BIA).
  • Witness/Victim PSGs and Societal Perception:
    • Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc): Held that “people who testified against Salvadoran gang members” can be a cognizable PSG, relying in part on El Salvador’s Special Law for Victim and Witness Protection (Decreto No. 1029/2006) as evidence of societal recognition.
    • Carvalho-Frois v. Holder, 667 F.3d 69 (1st Cir. 2012): A group of “witnesses to a serious crime whom the Brazilian government is unwilling or unable to protect” was not socially distinct where only the persecutors recognized them as such; emphasizes that social distinction looks to society at large, not just the persecutors.
    • Matter of H-L-S-A-, 28 I. & N. Dec. 228 (BIA 2021): Cooperation with law enforcement may form a cognizable PSG if the cooperation is “public in nature,” particularly through public testimony, and where the society recognizes and protects such cooperation; private, non-public cooperation was insufficient.
  • Standards of Review and Procedural Principles:
    • Alvizures-Gomes v. Lynch, 830 F.3d 49 (1st Cir. 2016): Legal questions are reviewed de novo.
    • SEC v. Chenery Corp., 332 U.S. 194 (1947): Courts cannot guess at an agency’s rationale; the agency must articulate its reasons with clarity so judicial review can assess their correctness.
    • Yee v. City of Escondido, 503 U.S. 519 (1992): Appellate litigants are not confined to the precise arguments advanced below when challenging the same legal error/claim.
    • Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (BIA 2012): Provides the framework for deciding continuances/administrative closure in light of collateral relief like U visas.
    • Benitez v. Wilkinson, 987 F.3d 46 (1st Cir. 2021): Failure to apply Sanchez Sosa can constitute abuse of discretion.
  • Local Law Evidence:
    • Decreto No. 1029/2006 (El Salvador): Special Law for Victim and Witness Protection—evidence of societal recognition of the vulnerability of victims and witnesses, cited in Henriquez-Rivas.

Legal Reasoning

The court’s core holding is methodological: the IJ’s and BIA’s social-distinction analysis cannot demand “ocular visibility.” The IJ repeatedly framed both “particularity” and “social distinction” by asking how “Salvadoran society would be able to point him out” or “measure or identify” those who “gave statements to police in pending criminal proceedings,” effectively requiring that members be identifiable on sight or by objective markers readily observable. That is precisely the misstep the BIA corrected in Matter of M-E-V-G-, which clarified that social distinction focuses on societal perception—not visual recognizability—and thus does not impose an “on-sight” test.

The BIA compounded the problem by describing the IJ’s analysis as “without error” and citing the pages that embodied this “identify-on-sight” reasoning. Given the First Circuit’s own precedents acknowledging the M-E-V-G- clarification (Paiz-Morales, Espinoza-Ochoa), this endorsement raised a red flag of legal error. The court therefore remanded to ensure proper application of the social-distinction standard and to require the agency to express its reasoning clearly, as Chenery demands.

The court noted but did not resolve a second asserted error: that the BIA misstated the scope of the proposed PSG by referencing “all individuals who give statements in any criminal proceeding,” arguably broader than “victims of gangs who give statements to police in pending criminal proceedings.” The panel read the BIA’s sentence as ambiguous; it could have been:

  • highlighting distinctions from Henriquez-Rivas (U.S.-based cooperation versus in-country Salvadoran testimony; statements to police versus public testimony), or
  • suggesting that El Salvador’s witness-protection law—covering all crime victims and witnesses—may be weak evidence of social distinction for the more narrowly defined “gang-victim witnesses” group.

Because ambiguity alone, combined with the ocular-visibility concern, prevented meaningful review, the court remanded without deciding this issue.

Procedurally, the panel:

  • rejected the government’s non-exhaustion claim concerning the “ocular visibility” argument, noting that the petitioner challenged the IJ’s legal errors with the correct standards, and that appellate litigants may use new arguments to support the same claim (citing Yee);
  • dismissed as moot the separate petition challenging denial of a motion to reopen for continuance/administrative closure pending a U visa, because the remand reopens proceedings and allows such motions anew;
  • warned that failing to apply Matter of Sanchez Sosa on remand risks abuse of discretion (citing Benitez);
  • did not reach CAT in light of changed circumstances (assailant’s deportation to El Salvador) and indicated CAT may be renewed on an updated record.

Finally, the court expressly declined to opine on the ultimate merits. It highlighted factual distinctions from Henriquez-Rivas (no public testimony; cooperation outside El Salvador) and directed attention to Matter of H-L-S-A- as pertinent authority on whether and when law-enforcement cooperation can yield a cognizable PSG.

Impact and Forward-Looking Consequences

This decision does not create a new substantive rule about which cooperation-based PSGs are cognizable; instead, it clarifies and enforces the methodology the agency must use. The impacts are nonetheless significant:

  • Social distinction ≠ on-sight identifiability: IJs and the BIA may not deny PSG claims by demanding that society be able to “identify” members on sight or by asking whether a person can be “pointed out.” This reaffirmation will shape adjudication of witness- and victim-based PSG claims, especially in gang contexts.
  • Use of local protective laws as social-distinction evidence: The court confirms that laws like El Salvador’s witness-protection statute can support social distinction (Espinoza-Ochoa), though exactly how probative they are for a particular, narrower PSG remains a factual/legal question for the agency on remand.
  • Public nature of cooperation may matter: By flagging Matter of H-L-S-A-, the court signals that, on remand, the agency may assess whether the petitioner’s cooperation was “public in nature,” whether there is societal recognition, and whether the PSG is sufficiently particular in geographic scope—issues that may cut for or against cognizability depending on the record.
  • Chenery discipline in immigration adjudication: The agency must clearly articulate its reasoning. Ambiguous or internally inconsistent rationales prompt remand. Practically, this should lead to better-developed BIA opinions on PSG cognizability and nexus.
  • Procedural relief pending U visa adjudication: The court’s mootness ruling simultaneously encourages use of continuances or administrative closure in reopened proceedings and reiterates that failure to apply Sanchez Sosa is error—guidance likely to affect case-management decisions in U visa contexts.
  • Reviewability boundary: The panel notes—but does not decide—the government’s suggestion that purely factual social-distinction determinations (absent legal error) may be unreviewable. Litigants should frame challenges in terms of identifiable legal misapplications (e.g., improper standards, misunderstanding PSG scope, failure to consider relevant evidence).

Complex 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 (PSG). It has a higher burden than asylum’s “well-founded fear” standard.
  • Particular Social Group (PSG): A set of persons sharing a common immutable characteristic, defined with particularity (clear boundaries), and “socially distinct” (recognized by the society in question as a discrete group). “Social distinction” looks to societal perception, not whether members are identifiable on sight.
  • Ocular visibility vs. social distinction: Ocular visibility asks whether you can tell who is in the group by looking at them or by obvious markers. Social distinction asks whether society perceives or acknowledges the group as a group—regardless of whether members are visually identifiable.
  • Chenery doctrine: Courts review agency action on the grounds the agency actually invoked. If the reasoning is unclear or legally flawed, the court remands rather than supplying its own rationale.
  • U visa and administrative closure/continuance: A U visa is for victims of certain crimes who assist law enforcement. Immigration courts may continue or administratively close removal proceedings to allow USCIS to adjudicate a pending U visa, guided by Matter of Sanchez Sosa.
  • CAT protection: Separate from asylum/withholding, CAT defers removal if it is more likely than not the person would be tortured with the involvement or acquiescence of government officials. Changes in facts (e.g., the return of a persecutor to the country of removal) warrant an updated assessment.

Practice Notes

  • Craft the PSG carefully: Define the group with clear boundaries (e.g., whether limited to gang-related crimes; whether cooperation is public; whether the scope is country-specific). Avoid worldwide formulations that risk failing “particularity.”
  • Build a robust social-distinction record: Submit country conditions, statutes (e.g., El Salvador’s Special Law for Victim and Witness Protection), reports, expert declarations, and media showing that society—not just persecutors—recognizes and protects victims and witnesses who cooperate.
  • Address “public” cooperation explicitly: If there was testimony, document it. If cooperation did not involve testimony, show how it nevertheless became known in the community (e.g., threats referencing cooperation, public reports, community knowledge).
  • Establish nexus: Tie threats and harm to the victim’s membership in the defined PSG (e.g., threats explicitly tied to testifying or cooperating), and not solely personal vendettas.
  • Preserve legal issues as legal errors: Frame challenges around misapplied standards (e.g., “ocular visibility” being wrongly required, misdescribed PSG scope, failure to consider key evidence) to ensure reviewability.
  • For U visa collateral relief: File targeted motions for continuance or administrative closure supported by Sanchez Sosa factors and proof of prima facie U visa eligibility; update the court on USCIS case posture.
  • For CAT on remand: Update the record to reflect current risks, including any return of persecutors to the country of removal and the government’s ability/willingness to prevent torture.

Conclusion

Alvarez Mendoza v. Bondi reinforces a critical doctrinal guardrail in PSG adjudication: “social distinction” looks to societal perception, not whether group members are visibly identifiable. By remanding under Chenery, the First Circuit ensures that the BIA applies the correct legal framework with clear, reviewable reasoning. In doing so, the court underscores the evidentiary value of protective laws as indicators of social distinction, flags Matter of H-L-S-A- as germane when cooperation with law enforcement is at issue, and provides procedural guidance for U visa-related case management and renewed CAT claims. Although the court takes no position on the ultimate cognizability of the petitioner’s proposed PSG, its ruling will shape how IJs and the BIA evaluate witness- and victim-based PSG claims—particularly those involving gang violence and cross-border cooperation—by prohibiting reliance on discredited “ocular visibility” concepts and insisting on rigorous, transparent reasoning.

Key Takeaways

  • “Social distinction” does not require on-sight identifiability; demanding such is legal error.
  • Protective laws and societal practices can be powerful evidence of social distinction but must be tied to the PSG actually proposed.
  • Cooperation “public in nature,” especially public testimony, is often pivotal under Matter of H-L-S-A-; lack of publicity is not necessarily fatal if societal perception can still be shown.
  • Ambiguous agency reasoning triggers remand under Chenery; the BIA must clearly articulate its analysis.
  • On remand, practitioners should renew motions for continuance/administrative closure pending U visa adjudication and expect Sanchez Sosa to be applied.
  • CAT claims should be reassessed on an updated record when circumstances materially change.

Case Details

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

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