Public Knowledge Is Not Enough: Amiryan v. Bondi and the Social-Distinction Requirement for Informant-Based Particular Social Groups

Introduction

Amiryan v. Bondi, No. 24-9564 (10th Cir. Aug. 1, 2025), is a precedentially persuasive decision from the United States Court of Appeals for the Tenth Circuit that clarifies what evidence is required to establish social distinction and particularity for an informant-based “particular social group” (PSG) in withholding-of-removal proceedings.

The petitioner, Andranik Amiryan—a native and citizen of Armenia with a lengthy criminal history in the United States—sought (1) withholding of removal under 8 U.S.C. § 1231(b)(3) and (2) protection under the Convention Against Torture (CAT). The immigration judge (IJ) and later the Board of Immigration Appeals (BIA) denied both forms of relief, finding, in relevant part, that:

His proposed PSGs were not cognizable because they lacked social distinction and particularity;
His federal conviction for conspiracy to commit bank fraud constituted a “particularly serious crime” barring withholding (a ground the BIA declined to reach); and
The record did not show a likelihood of torture “with the acquiescence of a public official” as required for CAT protection.

The Court of Appeals affirmed, rejecting Mr. Amiryan’s PSG formulation—“convicted criminals who cooperated with authorities and provided significant information about co-conspirators with connections to Armenian officials or oligarchs”—and holding that mere public awareness of informant status does not, without corroborating evidence, satisfy the social-distinction element. The court also reiterated that unexhausted CAT arguments will not be considered on petition for review.

Summary of the Judgment

Applying de novo review to the BIA’s legal conclusions and substantial-evidence review to its fact-finding, the Tenth Circuit:

Withholding of Removal – Agreed that neither of Mr. Amiryan’s two proposed PSGs was cognizable. In particular, the “informant-convict” group (a) lacked evidence that Armenian society perceives such informants as a distinct class (social distinction) and (b) was too amorphous (particularity) because it swept in anyone convicted of “various crimes” who might inform on “a wide range of conduct.”
CAT Protection – Declined to evaluate theories first raised in the petition for review (i.e., that the persecutor acted “in an official capacity” or that the Armenian police “acquiesced”) because they were not exhausted before the BIA, in compliance with 8 U.S.C. § 1252(d)(1).
Petition Denied – The panel (Judges Tymkovich, Bacharach, and Eid) unanimously denied the petition without oral argument.

Analysis

Precedents Cited and Their Influence

Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015) – Framework for PSG analysis: common immutable characteristic, particularity, and social distinction.
Xue v. Lynch, 846 F.3d 1099 (10th Cir. 2017) – Restated the dual standard of review (de novo for law; substantial evidence for fact).
Neri-Garcia v. Holder, 696 F.3d 1003 (10th Cir. 2012) – Authorized consulting the IJ's decision when a single-member BIA decision adopts its reasoning.
Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010) – Exhaustion of “the same specific legal theory” before the BIA is a statutory prerequisite for judicial review.
Miguel-Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024) – Recent reaffirmation that cognizability of a PSG is a legal question reviewed de novo and that unexhausted CAT theories are jurisdictionally barred.

These precedents collectively guided the court’s methodology: first confirming the legal standard for PSGs (Rodas-Orellana), then evaluating the factual record under substantial-evidence principles (Xue, Neri-Garcia). The court relied heavily on Garcia-Carbajal and Miguel-Pena to foreclose unexhausted CAT arguments.

Legal Reasoning

Particular Social Group Analysis
The court affirmed that two separate but interrelated showings are crucial:
- Social Distinction: The group must be perceived as a distinct class by the society in question. The petitioner offered only anecdotal testimony and unspecific media articles on deaths of four officials—insufficient to demonstrate societal recognition of “informant-convicts.”
- Particularity: The group boundaries must be clearly defined. The petitioner’s formulation hinged on a series of qualifiers (“convicted criminals,” “who cooperated,” “significant information,” “co-conspirators tied to officials/oligarchs”) that the court found too open-ended and “variable” to satisfy this prong.
Exhaustion & CAT
Because Mr. Amiryan did not present to the BIA the theory that Colonel Poghosyan was a de jure public official or that the Armenian police acquiesced, § 1252(d)(1) barred those arguments. The court stressed that exhaustion is jurisdictional: appellate review is limited to the theories actually argued before the agency.

Impact of the Decision

Although issued as a non-precedential order, Amiryan is citable for its persuasive value under Fed. R. App. P. 32.1. Its practical effects include:

Tighter Evidentiary Expectations for Informant-Based PSGs. Petitioners must supply country-condition evidence (expert reports, governmental statistics, sociological studies) demonstrating that informants are objectively and socially recognized as a distinct class. Mere notoriety of the individual applicant’s cooperation is insufficient.
Clarification on PSG Drafting. Overly granular or compound definitions can fail particularity because they lack “clear, definable boundaries.” Advocates should use concise descriptors supported by documentary evidence of societal perception.
Re-emphasis on Exhaustion. The court underscored that raising new CAT theories on appeal will be dismissed for lack of jurisdiction. Practitioners must present every viable legal argument at the BIA stage.
CAT Claims and Police Response Evidence. The court found no acquiescence where the police offered to investigate but the victims declined. This suggests that acceptance of police assistance, or at least proof of futility, is vital to CAT claims involving private actors.

Complex Concepts Simplified

Withholding of Removal – A statutory bar on deportation where an individual proves a “clear probability” of persecution (life or freedom threatened) on account of a protected ground.
Particular Social Group (PSG) – One of the protected grounds, requiring a group that (1) shares an immutable characteristic, (2) is sufficiently particular (clear definition), and (3) is socially distinct (recognized by the society).
Social Distinction – Evidence that the society in question (here, Armenia) perceives members of the group as a separate class—through media references, laws, or widespread social labeling.
Particularity – The group’s limits must be objectively ascertainable; adjectives like “significant” or “various” may render a formulation too vague.
Particularly Serious Crime – Certain convictions automatically bar withholding; however, the BIA may decline to reach that issue if relief is independently denied.
CAT Protection – Prevents removal where it is “more likely than not” the person will be tortured by, or with the acquiescence of, a public official.
Acquiescence – Requires that state officials either participate in, consent to, or turn a blind eye to the torture; prompt and genuine offer of police protection undermines a showing of acquiescence.
Exhaustion of Administrative Remedies – A statutory prerequisite to judicial review; arguments not presented to the BIA cannot be raised before the circuit court.

Conclusion

Amiryan v. Bondi serves as a cautionary tale for practitioners crafting PSG and CAT claims. The Tenth Circuit reaffirmed that:

Public notoriety of an individual’s informant activity by itself does not establish social distinction for a PSG; substantive, country-specific evidence is necessary.
PSGs must avoid nebulous or multifactor descriptions that lack clear boundaries—otherwise they fail particularity.
Exhaustion remains a strict jurisdictional bar; arguments not properly raised below will not be heard on appeal.

By sharpening the contours of PSG analysis and reiterating procedural safeguards, Amiryan will likely influence how future asylum and withholding applicants (especially those relying on informant-based theories) marshal evidence and formulate their claims. It also fortifies the jurisprudence of administrative exhaustion in CAT litigation, reinforcing the principle that the BIA, not the courts, must be the first arbiter of new factual or legal contentions.