The Fourth Circuit has remanded an asylum appeal, finding inadequate the agency’s determination that the particular social group was circular because it referenced the persecution suffered.
“Here, the BIA found that Guardado’s first PSG was impermissibly defined in a circular fashion by the harm to its constituent members. While we agree that a PSG cannot be defined exclusively by the harm its members face (i.e., the anti-circularity requirement), we join a growing consensus of our sister circuits in recognizing that the BIA cannot simply claim circularity in a perfunctory manner.” In other words, the BIA cannot make a conclusory judgment that a PSG is circular per se. In place of such a superficial quick look at the words used,’ the BIA must perform a substantive analysis: it must determine what underlying characteristics account for the fear and vulnerability’ of the group, and whether the society views those characteristics as distinct.
This substantive analysis is necessary for a host of reasons. First, although the cognizability of a proposed PSG presents a question of law, this question is analyzed through a fact-based inquiry made on a case-by-case basis. Second (and relatedly), whether a group exists independently of the harm alleged is not always so apparent and depends on the facts of the particular case. Third, we see no logic or reason behind the assertion that abuse cannot do double duty, both helping to define the group, and providing the basis for a finding of persecution. And finally, even if a PSG is largely defined by persecution, a group that exists independent of persecution is simply a group that shares an immutable characteristic other than the persecution it suffers.”
The full text of Hernandez Guarado v. Bondi can be found here: