United States Court of Appeals

For the First Circuit

No. 11-1047

ERASMO ROJAS-PÉREZ,

ANGÉLICA GARCÍA-ÁNGELES,

Petitioners,

v.

ERIC H. HOLDER, JR.,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Howard, and Thompson,

Circuit Judges.

Randy Olen and Robert D. Watt, Jr., on brief for petitioners.

Sabatino F. Leo, Trial Attorney, Office of Immigration

Litigation, Civil Division, Tony West, Assistant Attorney General,

and Anthony P. Nicastro, Senior Litigation Counsel, on brief for

respondent.

November 5, 2012
TORRUELLA, Circuit Judge. Erasmo Rojas-Pérez ("Rojas"),

the lead petitioner in this case, and his wife, Angélica GarcíaÁngeles ("García"), seek review of a final order of removal issued

by the Board of Immigration Appeals ("BIA") on December 14, 2010. 

Because we conclude that the BIA's decision was reasonable and

adequately supported by substantial evidence, we deny the instant

petition for review.

I. Background

Rojas and García (collectively, the "petitioners")

entered the United States without inspection on January 2001 and

July 2003, respectively. On November 16, 2004, the government

filed a Notice to Appear ("NTA") in immigration court charging

Rojas with removability under sections 212(a)(6)(A)(i) and

212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"),

8 U.S.C. §§ 1182(a)(6)(A)(i), 1182(a)(7)(A)(i)(I). An NTA

1

charging García with removability under INA § 212(a)(6)(A)(i)

followed on September 12, 2006.

The petitioners conceded removability as aliens who had

entered the United States without inspection but, on July 18, 2007,

filed applications for withholding of removal under INA

Section 212(a)(6)(A)(i) of the INA, codified at 8 U.S.C. 1

§ 1182(a)(6)(A)(i), renders "alien[s] present in the United States

without being admitted or paroled" inadmissible to the United

States. Section 212(a)(7)(A)(i)(I) of the INA, codified at 8

U.S.C. § 1182(a)(7)(A)(i)(I), prescribes the same for aliens who

lack valid identification at the time they file an application for

admission into the United States.

-2-
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). Rojas and García each grounded

their individual requests for relief on their stated belief that if

the family returned to Mexico, their son Iker Rojas -- a U.S.

citizen by virtue of being born in the United States in 2006 --

could be kidnapped and held for ransom.

A hearing on the merits of the petitioners' applications

was held before an immigration judge ("IJ") on February 6, 2009. 

At the hearing, Rojas testified that he and García feared returning

to Mexico because "people" would know that the family had been in,

and returned from, the United States and this made it likely that

his son could be kidnapped and held for ransom. Rojas added that

he feared his son could be kidnapped by criminal gangs or "the

police itself," but denied having received any specific threats to

that effect. Rojas also explained that neither he nor his wife's

family had been subjected to attacks while in Mexico. García

limited her testimony to brief remarks in which she admitted that

she entered the United States without inspection in 2003 and

affirmed that she was Rojas's spouse.

The IJ denied the petitioners' applications for

withholding of removal on the same day as the merits hearing. The

IJ found Rojas's and García's testimonies credible, but nonetheless

concluded that they had not shown it was "more likely than not that

they would be persecuted upon their return to Mexico on account of

a statutorily protected ground." Speaking specifically to Rojas's

-3-
claims that he feared his family would be targeted on account of

their sojourn in the United States, the IJ reasoned that persons

"returning from the United States and who may be looked upon as

having money . . . do not comprise a particular social group" for

withholding of removal relief.

The petitioners appealed the IJ's findings and, on

December 14, 2010, the BIA affirmed the IJ's ruling. In its

written order, the BIA defined the petitioners' purported social

group as "persons who have a lengthy residence in the United States

and are parents" of U.S. citizen offspring. The BIA reasoned that

the petitioners' stated fear that their son could be kidnapped and

held for ransom upon returning to Mexico was not properly grounded

in their belonging to a discernible social group. To support its

reasoning, the BIA cited to its own precedent for the proposition

that "fear of persecution based on perceived wealth does not

constitute a particular social group under the [INA]." Rojas then

filed a timely petition for review with this court.

II. Discussion

This court has jurisdiction to review BIA-issued final

removal orders under 8 U.S.C. § 1252(a). In circumstances such as

the present case, where the "BIA adopts an IJ's decision but opts

to offer a glimpse into its considerations, we review both the

decision of the BIA and the IJ." Restrepo v. Holder, 676 F.3d 10,

15 (1st Cir. 2012). Under the applicable "substantial evidence"

-4-
standard, we yield to the IJ's findings of fact "so long as they

are 'supported by reasonable, substantial and probative evidence on

the record considered as a whole.'" Cheung v. Holder, 678 F.3d 66,

69 (1st Cir. 2012) (quoting Seng v. Holder, 584 F.3d 13, 17 (1st

Cir. 2009)). Questions of law, however, are afforded de novo

consideration, albeit with proper deference to the agency's

interpretation of the applicable statutes and regulations. See

Lobo v. Holder, 684 F.3d 11, 16 (1st Cir. 2012); McCreath v.

Holder, 573 F.3d 38, 41 (1st Cir. 2009).

Under INA § 241(b)(3), withholding of removal relief must

issue if the "Attorney General decides that the alien's life or

freedom would be threatened in [the destination country] because of

the alien's race, religion, nationality, membership in a particular

social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). An

alien applying for such relief bears the burden of proof and must

establish either of two showings: that he has "suffered past

persecution" -- thus creating a rebuttable presumption of likely 2

future persecution -- or, that if returned to his country of

origin, "it is more likely than not that he . . . would be

persecuted" on account of the above-referenced factors. 8 C.F.R.

§ 208.16(b)(2). To establish either of these showings, an alien

must show a "clear probability" of future persecution once

Consistent with Rojas's admission that he was never harmed while 2

he resided in Mexico, the IJ found that the petitioners had not

suffered past persecution.

-5-
repatriated. INS v. Stevic, 467 U.S. 407, 413 (1984); see also

Rashad v. Mukasey, 554 F.3d 1, 5-6 (1st Cir. 2009).

Because the INA does not define the phrase "particular

social group," we have deferred to the BIA's interpretation of the

term. See Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012);

Méndez-Barrera v. Holder, 602 F.3d 21, 25-26 (1st Cir. 2010). 

Accordingly, we have recognized in this context that a legally

"cognizable social group is one whose members share 'a common,

immutable characteristic that makes the group socially visible and

sufficiently particular.'" Carvalho-Frois v. Holder, 667 F.3d 69,

73 (1st Cir. 2012) (quoting Méndez-Barrera, 602 F.3d at 25).

We find that substantial evidence supports the agency's

conclusion that Rojas failed to show that if the petitioners were

to return to Mexico, it is more likely than not that they would be

persecuted because they belong to a particular social group. 

Specifically, Rojas alleges that he and García face persecution if

they return to Mexico because they belong to a particular social

group comprised of "persons who have lengthy residence in the

United States and are parents of a United States citizen." As the

IJ and the BIA both explained, the reasoning behind this argument

appears to be that individuals returning from the United States

would possibly be looked upon by criminals as being more

financially well-off than others and would thus be targeted for

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harm -- here, by the kidnapping and ransoming of their son who is

a U.S. citizen.

Both this court and the BIA have rejected calls to

recognize individuals who might be perceived as being wealthy or as

"having money" and are returning to their country of origin after

living in the United States as legally cognizable social groups. 

See Sicajú-Díaz v. Holder, 663 F.3d 1, 3-4 (1st Cir. 2011)

(rejecting class comprised of "wealthy individuals returning to

Guatemala after a lengthy residence in the United States"); LópezCastro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009) (rejecting

argument that petitioner "would be exposed to an increased risk of

future attacks by gang members in Guatemala because he [would] be

perceived as wealthy"); see also Díaz v. Holder, 459 F. App'x 4, 6

(1st Cir. 2012); In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 75-76

(BIA 2007); In re S-V-, 22 I. & N. Dec. 1306, 1310 (BIA 2000),

overruled on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th

Cir. 2003). The reasoning underpinning these holdings is that,

when a petitioner asserts that, upon repatriation, he would be

persecuted on account of his perceived wealth or financial status,

"[t]hat suggestion fails to establish an objectively reasonable

basis for a fear of persecution premised on a statutorily protected

ground." López-Castro, 577 F.3d at 54. Put another way, a

petitioner pressing such a contention does not advance an argument

that he would be persecuted because of membership in a particular

-7-
social group -- "[a] country-wide risk of victimization through

economic terrorism is not the functional equivalent of a

statutorily protected ground . . . ." Id.

In denying Rojas's application for withholding of removal

and affirming that decision, both the IJ and the BIA (respectively)

grounded their analyses on this well-settled logic. For his part,

the IJ referenced BIA precedent for the proposition that "those who

are returning from the United States and who may be looked upon as

having money and therefore are fearful of being targets do not

comprise a particular social group." In its opinion, the BIA then

reiterated the IJ's reasoning and cited several of its decisions

endorsing the same rationale. We accordingly find the agency's

judgment here to have been both reasonable and consonant with its

precedent.3

Although Rojas claims that the BIA incorrectly focused on the 3

"persecution based on wealth" logic at the expense of paying

attention to the importance of the specific harm that the

petitioners allege could befall them in Mexico -- i.e., the

kidnapping and ransoming of their son, a U.S. citizen -- we do not

find that to be the case. To the extent that Rojas and García

state that they are fearful that their son would be kidnapped if

the family returns to Mexico, they admit that any such fear follows

from their belief that they would be perceived by others as wealthy

once there, thus making their son an attractive target for

abduction. All this means is that the possibility that their son

would be kidnapped by criminal gangs or rogue police officers is

the kind of "persecution" that they fear they would suffer once in

Mexico. But as our above discussion and precedent suggest,

"hostile treatment based on economic considerations is not

persecution." López-Castro, 577 F.3d at 54.

-8-
In an attempt to outflank the considerable amount of case

law supporting the agency's decision, Rojas advances a secondary

and potentially more consequential argument. Specifically, Rojas

takes issue with the BIA's reliance on "social visibility" as one

of the requisite factors that would define a particular and legally

cognizable social group under BIA precedent. This requirement,

which the BIA incorporated into its analysis of what comprises a

"particular social group" in 2006, see In re C-A-, 23 I. & N. Dec.

957 (BIA 2006), demands that the "common, immutable characteristic"

that an asserted group shares must also "make the group []

generally recognizable in the community," Faye v. Holder, 580 F.3d

37, 41 (1st Cir. 2009).

The social visibility requirement undergirds the cases on

which the agency relied in denying the petitioners' applications

for withholding. Both this court and the BIA have generally

reasoned that petitioners claiming that they belong to a particular

social group comprised of persons who are either wealthy or would

be perceived as such upon their return to a country where crime is

endemic do not meet the social visibility requirement. Because

crime affects all who reside in those countries, the logic goes,

wealth (or the perception of wealth) would not necessarily single

out a person for victimization. See Sicajú-Díaz, 663 F.3d at 4

("In a poorly policed country, rich and poor are all prey to

criminals who care about nothing more than taking it for

-9-
themselves."); In re A-M-E & J-G-U-, 24 I. & N. Dec. at 74

("[T]here is little in the background evidence of record to

indicate that wealthy Guatemalans would be recognized as a group

that is at greater risk of crime in general or of extortion or

robbery in particular.").

The reasoning behind the BIA's social visibility

requirement has come in for some criticism of late, and Rojas

points to varied authority in calling this court to recognize that

the requirement is both unwarranted and unnecessary. The sharpest

critique of the social visibility requirement that Rojas points to

is the Seventh Circuit's decision in Gatimi v. Holder, 578 F.3d 611

(7th Cir. 2009), in which that court invalidated the BIA's social

visibility requirement in the asylum context. The Gatimi court

acknowledged the above-stated proposition that the BIA's definition

of the statutory phrase "particular social group" is entitled to

deference, see id. at 615, but nonetheless explained that, in its

estimation, the BIA's application of the social visibility

requirement was both unreasonable and inconsistent. First, the

Gatimi court stated that the social visibility requirement "ma[de]

no sense," adding: 

nor has the [BIA] attempted . . . to explain

the reasoning behind the criterion of social

visibility. Women who have not yet undergone

female genital mutilation in tribes that

practice it do not look different from anyone

else. A homosexual in a homophobic society

will pass as heterosexual. If you are a

member of a group that has been targeted for

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assassination or torture or some other mode of

persecution, you will take pains to avoid

being socially visible; and to the extent that

members of the target group are successful in

remaining invisible, they will not be "seen"

by other people in the society "as a segment

of the population."

Id. Further advancing its reasoning, the Gatimi court noted that

it found the deference that is commonly due to the BIA's definition

of "particular social group" unwarranted in the context of the

social visibility requirement. Here, the Seventh Circuit explained

that it considered the BIA to have been "inconsistent" in applying

the requirement, "[finding] groups to be 'particular social groups'

without reference to social visibility . . . as well as,

in . . . other cases, refusing to classify socially invisible

groups as particular social groups but without repudiating the

other line of cases." Id. at 615-16. The court thus found that,

regarding social visibility as a criterion for determining a

"particular social group,"

the Board has been inconsistent rather than

silent. . . . When an administrative agency's

decisions are inconsistent, a court cannot

pick one of the inconsistent lines and defer

to that one, unless only one is within the

scope of the agency's discretion to interpret

the statutes it enforces or to make policy as

Congress's delegate. Such picking and

choosing would condone arbitrariness and usurp

the agency's responsibilities.

Id. at 615-16 (citations omitted).

Only one of the other federal circuit courts of appeal

has endorsed the Gatimi court's reasoning. In its judgment in

-11-
Valdiviezo-Galdamez v. Att'y Gen. of the United States, 663 F.3d

582 (3d Cir. 2011), the Third Circuit voiced similar concerns 4

regarding what it perceived as a lack of consistency in the BIA's

application of its own requirement. For example, the ValdiviezoGaldamez court noted that the BIA had, since first interpreting the

statutory phrase "particular social group" in 1985, see In re

Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds

by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), "recognized a

number of groups as 'particular social groups' where there was no

indication that the group's members possessed 'characteristics that

were highly visible and recognizable by others in the country in

question' or possessed characteristics that were otherwise

'socially visible' or recognizable," Valdiviezo-Galdamez, 663 F.3d

at 604. By way of example, the Valdiviezo-Galdamez court added:

[T]he BIA has found each of the following

groups to constitute a "particular social

group" for purposes of refugee status: women

who are opposed to female genital mutilation

(Matter of Kasinga), homosexuals required to

register in Cuba, (Matter of Toboso-Alfonso),

and former members of the El Salvador national

police (Matter of Fuentes). Yet, neither

anything in the Board's opinions in those

cases nor a general understanding of any of

those groups, suggests that the members of the

groups are "socially visible." The members of

each of these groups have characteristics

which are completely internal to the

Rojas does not rely upon Valdiviezo-Galdamez in his briefing

4

before this Court. The Valdiviezo-Galdamez decision was issued on

November 8, 2011, one day after his brief was filed in the instant

matter.

-12-
individual and cannot be observed or known by

other members of the society in question (or

even other members of the group) unless and

until the individual member chooses to make

that characteristic known.

Id. Based on the fact that the above-cited particular social

groups would not be cognizable if the BIA were to impose the

"social visibility" requirement today, the court found the

requirement inconsistent with past BIA decisions and concluded that

"it is an unreasonable addition to the requirements for

establishing refugee status where that status turns upon

persecution on account of membership in a particular social group." 

Id. The court went further in finding that the BIA's particularity

requirement was inconsistent with prior decisions, stating that it

was "hard-pressed to discern any difference between the requirement

of 'particularity' and the discredited requirement of 'social

visibility.'" Id. at 608.

While this Court recognizes the cogency and

persuasiveness of both the reasoning and the outcomes of the

Seventh and Third Circuits' decisions, it is bound by its own

precedent regarding the reasonableness of the BIA's social

visibility requirement. See Beltrand-Alas v. Holder, No. 11-1419, 5

The Court rejects, however, the concurrence's statement that we 5

have "on multiple occasions addressed the viability of the social

visibility criterion, and rejected the very arguments by which the

majority has been persuaded here." This is not the case. The

Court has only addressed the arguments of inconsistency as stated

in the Gatimi opinion in Beltrand-Alas. In its prior decisions,

the Court in no way referenced arguments challenging as

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2012 U.S. App. LEXIS 17378, at * 9 (1st Cir. Aug. 17, 2012). A

panel decision may only be overturned where it is either undermined

by "subsequently announced controlling authority" or in the rare

instance where "authority that postdates the original decision,

although not directly controlling, nevertheless offers a sound

reason for believing that the former panel, in light of fresh

developments, would change its collective mind." Mongeau v. City

of Marlborough, 492 F.3d 14, 18-19 (1st Cir. 2007)(quoting Williams

v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)). Since no

controlling authority has been announced subsequent to this Court's

decision in Beltrand-Alas, and since this Court just reviewed in

that decision the same arguments Petitioner presents here regarding

the inconsistency and unreasonableness of the BIA's "social

inconsistent and arbitrary the BIA's application of the social

visibility requirement. See, e.g., Faye, 580 F.3d at 41 (only

stating generally that the Court "show[s] some deference to the

BIA's interpretation of the term ['social group']" without

evaluating the reasonableness per se of its extrapolation from the

immutability requirement that a characteristic be "socially

visible"); Méndez-Barrera, 602 F.3d at 25-26 (in stating that "we

have found th[e] elaboration [of the social visibility requirement]

to be not only reasonable but also within the BIA's purview,"

conflating the deference granted to the BIA's interpretations of

"social group" in prior decisions (Scatambuli and Faye) with the

Court's granting of deference to the BIA's delineation of the

social visibility requirement). In fact, the Court has even avoided

addressing head on the issue of a tension between the immutability

requirement and the social visibility requirement. See 

Scatambuli, 558 F.3d at 60 ("it is not necessary in this case for

us to explore whether there is any tension between looking to the

visibility of a particular social group and the requirement that

members of a group share an immutable or fundamental

characteristic.").

-14-
visibility" requirement, the only fresh development for the Court

to consider is the further divergence in the circuit courts

resulting from the Third Circuit decision in Valdiviezo-Galdamez. 

Since that decision is based on similar reasoning as the Seventh

Circuit's decision, it is difficult to categorize the Third

Circuit's iteration as a fresh development the panel had not

already considered, and that would be sufficient to change its

collective mind.

The Court nevertheless believes that the requirement of

social visibility at the very least merits additional examination

by and clarification from the BIA. It is particularly unclear how

courts are to square the BIA's more recent statements regarding the

social visibility requirement with its former decisions, which

allow as cognizable those characteristics in particular social

groups that are only visible when made known by individual members,

cf. In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996) and In re

Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (BIA 1990). Also, if

an "immutable" characteristic is one that an individual possesses

but either cannot change or should not be required to change, it is

not clear why an individual with a hidden characteristic need make

that characteristic known for it to be deemed immutable. See,

e.g., In re Acosta, 19 I. & N. Dec. at 49-50.

The concurrence states that criticisms of the BIA's

application of the social visibility requirement need not be

-15-
entertained in this case. We wholeheartedly disagree for two

reasons. First, the criticisms were explicitly raised by the

Petitioner in his Gatimi-based challenges to the social visibility

requirement, and we find it appropriate to address those challenges

on that basis and on the basis of the growing circuit split on the

issue. Second, as the Gatimi court has stated, "[w]hen an

administrative agency's decisions are inconsistent, a court cannot

pick one of the inconsistent lines and defer to that one . . . .

[s]uch picking and choosing would condone arbitrariness and usurp

the agency's responsibilities." Gatimi, 578 F.3d at 616 (citations

omitted).

This Court's own "application of the social visibility

test," however reasonable and broad, is not the target of

Petitioner's challenge. Rather, Petitioner challenges, as he may

after Chevron, the BIA's inconsistently applied interpretation of

the immutability requirement as encompassing a socially visible

characteristic to which the Court has granted deference. It is

therefore unavailing that this Court has adopted a more or less

demanding approach to this or any other term in the INA. See,

e.g., Negusie v. Holder, 555 U.S. 511, 523 (2009) ("ambiguities in

statutes within an agency's jurisdiction to administer are

delegations of authority to the agency to fill the statutory gap in

reasonable fashion. Filling these gaps . . . involves difficult

policy choices that agencies are better equipped to make than

-16-
courts.") (citation and quotation marks omitted); Nat'l Cable &

Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 985

(2005) ("Before a judicial construction of a statute, whether

contained in a precedent or not, may trump an agency's the court

must hold that the statute unambiguously requires the court's

construction."). The Court cannot be concerned about the fact that

its jurisprudence, as the concurrence states, "does not necessarily

exclude groups whose members might have some measure of success in

hiding their status in an attempt to escape persecution." (Emphasis

added). Rather, the Court is and should be solely concerned with

whether the BIA's social visibility requirement so excludes such

groups in its inconsistent interpretation and application of the

INA. See, e.g., Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 6

837, 843 (1984) ("If . . . the court determines Congress has not

directly addressed the precise question at issue, the court does

The concurrence's citation to the Tenth Circuit's decision in 6

Rivera-Barrientos v. Holder fails to address this concern. See

Rivera-Barrientos, 666 F.3d 641 (10th Cir. 2012). The concurrence

quotes the court's statement that, "social visibility requires that

the relevant trait be potentially identifiable by members of the

community, either because it is evident or because the information

defining the characteristic is publically accessible." See id. at

652. This statement by the Tenth Circuit is not helpful here as it

fails to explain how homosexuals or females who fear genital

mutilation, groups which have been accorded protection by the BIA,

have characteristics that are either "evident" or "publicly

accessible." The Tenth Circuit appears to further solidify a

tendency by the circuit courts to establish their own standards of

what the social visibility requirement consists of, even if that

standard conflicts with the BIA's prior rulings on protected social

groups.

-17-
not simply impose its own construction on the statute, as would be

necessary in the absence of an administrative interpretation. 

Rather, if the statute is silent or ambiguous with respect to a

specific issue, the question for the court is whether the agency's

answer is based on a permissible construction of the statute.").

On this basis, the Court cannot share the concurrence's

concern that our discussion of this issue may encourage "misplaced

challenges to the BIA's social visibility requirement." First, it

is both the duty and mandate of this Court to review the BIA's

interpretation and application of the INA over time precisely to

evaluate whether its rule is arbitrary or capricious. See, e.g.,

Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct.

704, 711-12 (2011). Second, while it is true and this Court has

acknowledged that we are bound by our own precedent, it is not our

task to operate blindly and unscientifically in the face of

legitimate challenges to either our prior rulings or the

adjudications of an administrative agency tasked with interpreting

its organic statute.

III. Conclusion

In any event, since this Court does not write on a clean

slate, and since the BIA's determinations were based on substantial

evidence in the record before it, the Court must deny Rojas-Pérez's

petition for review.

-- Concurring opinion follows --

-18-
HOWARD, Circuit Judge (concurring). While I concur in

the judgment, I do not endorse the court's critiques of the social

visibility test, which we have recently and unreservedly rejected,

see, e.g., Beltrand-Alas v. Holder, 689 F.3d 90, 93 (1st Cir.

2012). Nor can I discern any reason to entertain such criticisms

anew, given that they have no impact on the outcome in this case. 

Thus, I decline to join the majority's dicta on this nonessential

matter.

I.

The validity of the BIA's social visibility test is not

an issue of first impression in this circuit. We have on multiple

occasions addressed the viability of the social visibility

criterion, and rejected the very arguments by which the majority

has been persuaded here. See, e.g., id. ("[The petitioner] argues

that . . . the BIA's use of 'social visibility' in the social group

analysis is an arbitrary and capricious interpretation of the

statute . . . [but] this court has held that the social visibility

criterion is reasonable because it represents an elaboration of how

the requirement operates and is an interpretation of an ambiguous

statutory term.") (internal quotation marks omitted); MendezBarrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010) ("[T]he

petitioner asserts that we should ignore [the BIA's delineation of

the term 'social group'] because . . . the BIA departed from

precedent, gutted its immutable characteristic test, and

-19-
substituted a new (and unprecedented) social visibility test. This

assertion contains more cry than wool . . . . The social

visibility criterion . . . represents an elaboration of how [the

immutable characteristic] requirement operates. We have found this

elaboration to be not only reasonable but also within the BIA's

purview."); Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir.

2009) (examining the contours of the BIA's social visibility test

and finding that "it is relevant to the particular social group

analysis").

We are not alone in this view. A multitude of other

circuits have similarly concluded that the BIA's interpretation of

"social visibility" is reasonable and therefore entitled to Chevron

deference. See Orellana-Monson v. Holder, 685 F.3d 511, 519-20

(5th Cir. 2012); Rivera-Barrientos v. Holder, 666 F.3d 641, 648

(10th Cir. 2012); Al-Ghorbani v. Holder, 585 F.3d 980, 991, 994

(6th Cir. 2009); Ramos-Lopez v. Holder, 563 F.3d 855, 858-62 (9th

Cir. 2009); Davila-Mejia v. Mukasey, 531 F.3d 624, 628-29 (8th Cir.

2008); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007)

(per curiam); Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190,

1197-98 (11th Cir. 2006).

Only the Third and Seventh Circuits have expressly

declined to apply the BIA's framework. See Valdiviezo-Galdamez v.

Att'y Gen., 663 F.3d 582, 603-09 (3d Cir. 2011); Gatimi v. Holder,

578 F.3d 611, 615-17 (7th Cir. 2009). The majority aptly sets

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forth the reasoning of those courts, and I need not belabor the

point here. At bottom, they have narrowly construed "social

visibility," as applied by the BIA, to mean that "you can be a

member of a particular social group only if a complete stranger

could identify you as a member if he encountered you in the street,

because of your appearance, gait, speech pattern, behavior or other

discernible characteristic." Ramos v. Holder, 589 F.3d 426, 430

(7th Cir. 2009); see also Valdiviezo-Galdamez, 663 F.3d at 603-09. 

Consequently, they rejected the test after concluding that this

"immediate identifiability" requirement was inconsistent with a

line of unrepudiated BIA cases finding social groups based on

physical traits that are generally "invisible." See id.

I see no need to interpret social visibility so narrowly. 

The seminal BIA decision establishing the test, Matter of C-A-,

recognized numerous traits as socially visible that are not

immediately apparent to the naked eye, including opposition to

genital mutilation, kinship ties, and prior employment as a police

officer. See 23 I. & N. Dec. 951, 959-61 (BIA 2006). As the Tenth

Circuit has succinctly explained,

if opposition to genital mutilation, kinship

ties, and prior employment as a police officer

are socially visible, social visibility cannot

be read literally. Rather, social visibility

requires that the relevant trait be

potentially identifiable by members of the

community, either because it is evident or

because the information defining the

characteristic is publically accessible. 

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Rivera-Barrientos, 658 F.3d at 652.

Our application of the social visibility test comports

with that understanding: social visibility does not demand that

the relevant trait be externally visible or otherwise immediately

identifiable. We have held that to satisfy the social visibility

test, a group need only "be generally recognized in the community

as . . . cohesive." Mendez-Barrera, 602 F.3d at 26. The term

"recognized" should not be conflated with the physical visibility

of the targeted immutable characteristic; it is not an "eyeball"

test. See id. Thus, it matters not whether, as stated in

Valdiviezo-Galdamez, the trait is "completely internal to the

individual and cannot be observed or known by other members of the

society in question . . . unless and until the individual member

chooses to make that characteristic known," 663 F.3d at 604;

rather, we consider only whether, if that characteristic were

known, those who exhibit it -- regardless of its visibility to the

casual passerby -- comprise a group that would be identified by

their society as sufficiently cohesive. See Mendez-Barrera, 602

F.3d at 26 ("The relevant inquiry is whether the social group is

visible in the society, not whether the alien herself is visible to

the alleged persecutors."); Faye v. Holder, 580 F.3d 37, 41-42 (1st

Cir. 2009) (finding that the petitioner's proposed social group of

"adulterers who had a child out of wedlock" was not socially

visible, not due to the absence of some externally visible trait,

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but because the petitioner "did not explain how Senegalese society

generally would perceive her and women in a similar position"). 

Accordingly, the social visibility requirement -- as both the BIA

and this circuit have applied it -- does not necessarily exclude

groups whose members might have some measure of success in hiding

their status in an attempt to escape persecution.7

II.

Even assuming for argument's sake that the social

visibility test has been inconsistently or unreasonably interpreted

by the BIA, this petitioner's claim fails. The social group that

he proposes -- "persons who have lengthy residence in the United

States and are parents of a United States citizen" -- is merely a

particularized description of "perceived wealth," a trait which the

BIA and several courts of appeals, including the Third and Seventh

Circuits, rejected as an immutable characteristic long before the

social visibility test was ever formulated. See, e.g., Tapiero De

There is a class of cases in which the conduct of a petitioner, 7

due to its clandestine or confidential nature, was deemed

insufficiently visible. See, e.g., Scatambuli v. Holder, 558 F.3d

53, 60 (1st Cir. 2009) (rejecting "informants" as a particular

social group because "the universe of those who knew of the

petitioners' identity as informants was quite small; the

petitioners were not particularly visible"); Matter of C-A-, 23 I.

& N. Dec. 951, 960 (BIA 2006) (rejecting "confidential informants"

as a particular social group on the basis that members are

"generally out of the public view"). It makes sense that such

individuals, who act in secrecy with no definable common group goal

would not be thought to be members of a sufficiently cohesive

group. Those cases do not stand for the proposition that an

immutable characteristic must be externally or immediately

ascertainable to meet the social visibility standard.

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Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); JimenezMora v. Ashcroft, 86 Fed. App'x. 527, 531 (3d Cir. 2004); Matter of

S-V-, 22 I. & N. Dec. 1306, 1310 (BIA 2000) (holding that actions

motivated by "perceived wealth" were insufficient, without more, to

support a finding of persecution based on membership in a

particular social group), overruled on other grounds by Zheng v.

Ashcroft, 332 F.3d 1186 (9th Cir. 2003); Matter of V-T-S-, 21 I. &

N. Dec. 792, 799 (BIA 1997) (same). In other words, removing the

social visibility test from the equation would not salvage the

petitioner's case, obviating any need to reconsider this circuit's

well-settled precedent.

III.

In the end, my concern is that the dicta in the majority 

opinion may encourage what I believe will be misplaced challenges

to the BIA's social visibility requirement. We have repeatedly

found that requirement to be sound, and the majority's discussion

is not a reflection, institutionally, of the view of this court.

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