Labor & Employment Law Daily Wrap Up, IMMIGRATION—1st Cir.: Alleged gang violence victim successfully challenged removal under erroneous ‘ocular visibility’ test, (Apr 1, 2025)

By Jason Albright, J.D.

The BIA may have endorsed use of the legally erroneous test in evaluating whether his proposed PSG was socially distinct within Salvadoran society.

A Salvadoran man who was allegedly stabbed and severely wounded in 2020 by a MS-13 gang member—who was subsequently arrested and deported following the petitioner’s cooperation with local police in Massachusetts—has revived his claim that he is entitled to withholding of removal as a member of a particular social group (PSG) under the Immigration and Nationality Act. “[L]iteral ocular visibility ‘is not, and never has been, a prerequisite for a viable particular social group,’” the First Circuit observed. And in confirming that the immigration judge’s analysis in the petitioner’s case was “without error,” the BIA may have endorsed the judge’s use of the legally erroneous “ocular visibility” test in evaluating whether the petitioner’s proposed PSG was socially distinct within Salvadoran society (Mendoza v. Bondi, Nos. 24-1112 and 24-1260 (1st Cir. Mar. 31, 2025)).

Removal proceedings. In May 2022, the Department of Homeland Security initiated removal proceedings against the man for, among other things, entering the U.S. without inspection by an immigration officer. Two months later, an immigration court found him removable and designated El Salvador as the country to which he should be removed.

Asylum and withholding application. He then applied for asylum, withholding of removal under the Immigration and Nationality Act (INA), and protection under the Convention Against Torture (CAT), which led to an evidentiary hearing before an immigration judge (IJ).

PSGs. For relief in the form of withholding of removal, observed the First Circuit, “an [applicant] must establish a clear probability that, if returned to his homeland, he will be persecuted on account of a statutorily protected ground.” Membership in a PSG is one such statutorily protected ground.

For a PSG to be legally cognizable, the applicant “must establish that the group is: (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”

Allegations of probable persecution. Here, the petitioner alleged that there is a clear probability that he would be persecuted in El Salvador on account of, among other things, his membership in a legally cognizable PSG defined as “victims of gangs who give statements to police in pending criminal proceedings.”

Stabbed by Salvadoran gang member in Massachusetts. In support of his persecution allegation, the petitioner introduced, among other things, evidence that, in 2020, a member of MS-13, a powerful Salvadoran gang, had stabbed and severely wounded him in Chelsea, Massachusetts.

Assisted local police in arresting assailant. In turn, the petitioner's cooperation assisted the local police in arresting his assailant, and the alleged MS-13 member, after being released on bond, twice confronted the petitioner and warned him against further cooperation in the unresolved case.

Assailant threatened to kill him. The assailant, in turn, allegedly threatened to kill the petitioner in whatever country he was located if the petitioner were to appear in court and testify against him. “The assailant was deported, presumably to El Salvador,” the appeals court observed, “before the criminal case against him was resolved, and the petitioner has not testified against him.”

Reliance on Salvadoran law. In support of his assertion that his proposed PSG was legally cognizable, the petitioner relied upon a Salvadoran law, Decreto No. 1029/2006, Ley Especial para la Protección de Víctimas y Testigos [“Special Law for Victim and Witness Protection”], (May 11, 2006) (“Decreto No. 1029/2006”), enacted to protect “victims, witnesses and others who are involved in the investigation of crime or in judicial proceedings.”

IJ’s denial of relief. In a written decision issued October 25, 2022, an IJ denied the petitioner relief, including on his application for withholding of removal under the INA. The IJ found, and reaffirmed in a second written decision, that the petitioner’s proposed PSG was not cognizable because it lacked both particularity and social distinction.

No way to “point him out.” In the second decision, the IJ observed that a sufficiently particular PSG must have characteristics that “provide a clear benchmark for determining who falls within the group.” The petitioner’s proposed PSG, according to the IJ, lacked such a benchmark because he had not adduced evidence showing “how Salvadoran society would be able to point him out” as a member of the group.

Social distinction analysis. This same inability of Salvadoran society to identify the petitioner as a member of his proposed PSG was fatal to his argument, according to the IJ: “As similarly discussed above [in connection with the particularity requirement], it is unclear how Salvadoran society could even measure or identify the victim who gave statements to police in pending criminal proceedings in the United States.” The IJ also summarily rejected the petitioner’s argument in support of social distinction based on Decreto No. 1029/2006.

Appeals to BIA and First Circuit. The petitioner twice appealed to the BIA, which ultimately dismissed his appeal, explicitly affirming on the ground that the IJ properly found that the petitioner’s proposed PSG was not socially distinct.

The petitioner then sought review in the First Circuit.

Possible application of erroneous test. The appeals court agreed with the petitioner’s argument that the BIA erred in endorsing the IJ’s social distinction analysis, which may have improperly applied an “ocular visibility” standard in concluding that the proposed PSG was not socially distinct. “We are concerned that the agency’s denial of the petitioner’s application for withholding of removal under the INA may have been affected by a misunderstanding that social distinction requires ocular visibility.”

At worst, the IJ’s analysis could “express a rejection of the petitioner's argument based on Salvadoran society’s inability to place individuals inside or outside the petitioner’s proposed PSG based on mere observation,” said the First Circuit. “Such a rejection amounts to application of the discredited ocular visibility standard.”

The petition for review was thus granted and the case remanded to the BIA.

The case is Nos. 24-1112 and 24-1260.

Judge: Aframe, S.

Attorneys: Andrew S. Dulberg (WilmerHale) for Jose Rene Alvarez Mendoza. Sabatino F. Leo, U.S. Department of Justice, for Pamela J. Bondi.

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