Top Appellate Reversals: Pirir-Boc v. Holder

As the surge of unaccompanied migrant children flowed across the U.S. southern border in 2014, the problem of how to deal with their immigration court asylum bids became acute. Some had gang ties, which automatically disqualified them in the federal government's view for sympathetic treatment.

But what about migrant youths who opposed gang violence? Such was the case Roger S. Green and Jenny Tsai took to the 9th U.S. Circuit Court of Appeals seeking reversal of a Board of Immigration Appeals decision.

A Guatemala man who persuaded his younger brother to defect from the violent Mara Salvatrucha gang won asylum from a San Francisco immigration judge, only to be overruled by the BIA.

Green and Tsai persuaded a 9th Circuit panel to reverse that decision and clarified the legal standard for inclusion in the social group category of those who merit relief.

The BIA required that a protected social group be "socially visible" within the culture from which the asylum applicant fled. But much gang activity takes place in the shadows. That seemed to eliminate those who rejected Mara Salvatrucha recruitment. Critics said the BIA wrongly lumped those opposed to gangs in with all other gang cases.

The panel told the BIA to make evidence-based individualized assessments in each case, based on the facts presented in immigration court. Pirir-Boc v. Holder, 750 F.3rd 1077.

"The court made extensive and meaningful analysis on membership in a particular social group for asylum claims," Tsai said.

"This case comes at an especially important time in history, given the recent surge of Central American children fleeing across the border," she added. "We hope that this case can help protect all those peaceful people fleeing the gang or other violence for safety here."

The Justice Department attorneys who argued the case could not be reached for comment.

It wasn't Green & Tsai's first immigration case dealing with Central American hostilities. In 2013, the 9th Circuit agreed with them that opposition to violence can constitute political opinion, another of the categories on which asylum claims can be based. Regalado-Escobar v. Holder, 717 F.3rd 724.

- JOHN ROEMER