GONZALES, ATTORNEY GENERAL v. THOMAS et al.

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GONZALES, ATTORNEY GENERAL v. THOMAS et al.
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 05–552. Decided April 17, 2006
The Immigration and Nationality Act authorizes the Attorney General to
grant asylum to an alien who cannot return to another country because
of “persecution or a well-founded fear of persecution on account of . . .
membership in a particular social group.” 8 U. S. C. § 1101(a)(42)(A).
In applying for asylum, respondents claimed fear of persecution in their
native South Africa because of their “membership in a particular social
group,” as relatives of “Boss Ronnie,” a white South African who alleg
edly held racist views and mistreated black workers. The Immigration
Judge, focusing upon questions of race and political views, rejected their
claim, and the Board of Immigration Appeals (BIA) affirmed. A Ninth
Circuit panel held that the BIA had not adequately considered respond
ents’ claim, and the en banc court held that a family may constitute a
social group under the Act and that “persons related to Boss Ronnie”
fell within the scope of the statutory term “particular social group.”
Held: The Ninth Circuit’s failure to remand the “social group” question to
the administrative agency is legally erroneous, and that error is obvious
in light of INS v. Orlando Ventura, 537 U. S. 12 (per curiam). In Ven
tura, the Ninth Circuit reversed a BIA decision without first giving the
agency an opportunity to consider whether conditions in Guatemala had
improved to the point that political persecution was no longer likely.
Summarily reversing, this Court noted that a “court of appeals ‘is not
generally empowered to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an inquiry,’ ”
and that “ ‘the proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation.’ ” Id., at 16.
No special circumstance here justified the Ninth Circuit’s determination
in the first instance that Boss Ronnie’s family presents the kind of “kin
ship ties” that constitute a “particular social group.” Thus, the court
should have applied the “ordinary ‘remand’ rule,” id., at 18.
Certiorari granted; 409 F. 3d 1177, vacated and remanded.
Per Curiam.
The Immigration and Nationality Act authorizes the At
torney General to grant an alien asylum if the alien cannot

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return to another country because of “persecution or a well
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or po
litical opinion.” § 101(a)(42)(A), as added, § 201, 94 Stat. 102,
8 U. S. C. § 1101(a)(42)(A) (emphasis added). The respond
ents, Michelle Thomas and her immediate family, applied for
asylum. They checked boxes on the application form that
indicated their claim rested upon fear of persecution in their
native South Africa because of (1) their “political opinion[s],”
and (2) their “membership in a particular social group.” In
proceedings before the Immigration Judge, they emphasized
their fear of persecution because of their race (they are
white) and their kinship with Michelle’s father-in-law, “Boss
Ronnie,” a white South African who allegedly held racist
views and mistreated black workers at the company at which
he was a foreman. The Immigration Judge, focusing upon
questions of race and political views, rejected their claim.
And the Board of Immigration Appeals (BIA), responding to
the Thomases’ primarily race-related arguments, summarily
affirmed that decision.
On review, a Ninth Circuit panel held by a 2-to-1 vote that
the BIA had not adequately considered the Thomases’ claim
of persecution because of “membership in a particular social
group, as relatives of Boss Ronnie.” Thomas v. Ashcroft,
359 F. 3d 1169, 1177 (2004). The Ninth Circuit took the mat
ter en banc. The en banc court, overruling what it consid
ered aberrant contrary Circuit precedent, unanimously held
that in principle “a family may constitute a social group for
the purposes of the refugee statutes.” 409 F. 3d 1177, 1187
(2005) (emphasis added) (overruling, inter alia, Estrada-
Posadas v. INS, 924 F. 2d 916 (CA9 1991)). In so doing,
the court relied on earlier BIA opinions holding that certain
“kinship ties” fall within the statutory term. See 409 F. 3d,
at 1180, 1184–1186.
The court then went on to hold, over the dissent of four
judges, that the particular family at issue, namely “ ‘persons

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related to Boss Ronnie,’ ” fell within the scope of the statu
tory term “particular social group” and that the “Thomases
were attacked and threatened because they belong to
the particular social group of ‘persons related to Boss
Ronnie’ . . . .” Id., at 1189. The dissenting judges argued
that the question “whether the Thomases are a ‘particular
social group’ ” should first be considered by the relevant ad
ministrative agency. Id., at 1193 (opinion of Rymer, J.) (em
phasis in original). And they said that the majority’s con
trary decision was inconsistent with this Court’s holding in
INS v. Orlando Ventura, 537 U. S. 12, 18 (2002) (per curiam).
The Solicitor General now asks us to grant certiorari to
consider whether the Ninth Circuit “erred in holding, in
the first instance and without prior resolution of the ques
tions by the” relevant administrative agency, “that members
of a family can and do constitute a ‘particular social group,’
within the meaning of ” the Act. Pet. for Cert. I. He ar
gues that a court’s role in an immigration case is typically
one of “ ‘review, not of first view.’ ” Id., at 29 (quoting
Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)). He adds
that the decision clearly violates what this Court described
in Ventura as the “ ‘ordinary “remand” rule.’ ” Pet. for
Cert. 15 (quoting Ventura, supra, at 18). And he concludes
that “the Ninth Circuit’s error is so obvious in light of Ven
tura that summary reversal would be appropriate.” Pet.
for Cert. 29.
We agree with the Solicitor General. The Ninth Circuit’s
failure to remand is legally erroneous, and that error is “ob
vious in light of Ventura,” itself a summary reversal.
The alien in Ventura sought asylum on grounds of a rea
sonable fear of “persecution” in Guatemala “ ‘on account
of . . . [a] political opinion.’ ” 537 U. S., at 13. The BIA held
that the alien did not qualify for asylum because whatever
persecution he faced when he left Guatemala in 1993 was
not on account of a “ ‘political opinion.’ ” Ibid. The Ninth
Circuit reversed, holding that the record showed that in 1993

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the alien did indeed face politically based persecution in Gua
temala. The Circuit then went on to consider the Govern
ment’s alternative argument—that, in any event, conditions
within Guatemala had improved to the point that political
persecution was no longer likely. Ibid. And the Circuit re
jected this “ ‘changed circumstances’ ” claim without first
giving the agency an opportunity to consider the matter.
Id., at 14.
We reversed the Ninth Circuit summarily. We pointed
out that “[w]ithin broad limits the law entrusts the agency
to make the basic asylum eligibility decision.” Id., at 16.
“In such circumstances,” we added, a “ ‘judicial judgment
cannot be made to do service for an administrative judg
ment.’ ” Ibid. (quoting SEC v. Chenery Corp., 318 U. S. 80,
88 (1943)). “A court of appeals ‘is not generally empowered
to conduct a de novo inquiry into the matter being reviewed
and to reach its own conclusions based on such an inquiry.’ ”
Ventura, supra, at 16 (quoting Florida Power & Light Co. v.
Lorion, 470 U. S. 729, 744 (1985)). “Rather, ‘the proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.’ ” Ven
tura, supra, at 16 (quoting Florida Power & Light Co.,
supra, at 744; citing SEC v. Chenery Corp., 332 U. S. 194,
196 (1947)). Applying these “basic legal principles,” we con
cluded that “every consideration that classically supports the
law’s ordinary remand requirement does so here.” Ventura,
537 U. S., at 16, 17.
We must reach the same conclusion in the present case.
The agency has not yet considered whether Boss Ronnie’s
family presents the kind of “kinship ties” that constitute a
“particular social group.” The matter requires determining
the facts and deciding whether the facts as found fall within
a statutory term. And as we said in Ventura:
“The agency can bring its expertise to bear upon the
matter; it can evaluate the evidence; it can make an ini
tial determination; and, in doing so, it can, through in

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formed discussion and analysis, help a court later deter
mine whether its decision exceeds the leeway that the
law provides.” Id., at 17.
We can find no special circumstance here that might have
justified the Ninth Circuit’s determination of the matter in
the first instance. Thus, as in Ventura, the Court of Appeals
should have applied the “ordinary ‘remand’ rule.” Id., at 18.
We grant the petition for certiorari. We vacate the judg
ment of the Court of Appeals. And we remand the case for
further proceedings consistent with this opinion.
It is so ordered.