                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1192


TUMAINI GEOFREY TEMU,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 29, 2013                 Decided:   January 16, 2014


Before KING, GREGORY, and AGEE, Circuit Judges.


Petition for review granted, order vacated, and case remanded
for  further   consideration  consistent  with   this  published
opinion.   Judge Gregory wrote the majority opinion, in which
Judge King joined. Judge Agee wrote a dissenting opinion.


ARGUED: Katie Bukrinsky, Thomas Joseph Tynan, MCDERMOTT, WILL &
EMERY, LLP, Washington, D.C., for Petitioner.    Woei-Tyng Daniel
Shieh, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.    ON BRIEF:    Paul M. Thompson, Steven Hannes,
MCDERMOTT, WILL & EMERY LLP, Washington, D.C.; Stephen Dekovich,
CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, Washington, D.C., for
Petitioner.     Stuart F. Delery, Acting Assistant Attorney
General, Civil Division, Francis W. Fraser, Senior Litigation
Counsel,   Office   of  Immigration  Litigation,   UNITED  STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Circuit Judge:

     Tumaini       Temu     is    a   Tanzanian    national       who   suffers     from

severe bipolar disorder.                In his home country, Mr. Temu was

tortured by nurses and prison guards because of his illness.

After entering the United States, he applied for asylum, arguing

that he was persecuted because of his membership in a particular

social group.         The Board of Immigration Appeals (“BIA”) denied

his application, finding that Mr. Temu was not a member of a

social group under the Immigration and Nationality Act (“INA”),

and even if he was, Mr. Temu did not show that he was persecuted

because of membership in this group.                       Because we agree with

Mr. Temu    that      the    BIA’s     opinion    rests    on    factual    and   legal

errors,    we   grant       Mr.   Temu’s   petition       for   review,    vacate      the

BIA’s order, and remand for further proceedings consistent with

this opinion.



                                           I.

     The    facts       presented        below    are     based    on      Mr.    Temu’s

testimony, as well as testimony from two expert witnesses who

discussed       Mr.     Temu’s        diagnosis    and     the     conditions       that

individuals      with       mental    illness     face    in    Tanzania.        The    IJ

credited the testimony of all three witnesses, and neither the

BIA nor the government dispute any of the facts presented.



                                            2
     Mr.    Temu’s         troubles      began       during   his    final      year    at    the

University of Dar es Salaam, when his mother died in a car

accident.       This spurred a mental breakdown that forced Mr. Temu

to leave school, and he experienced a series of similar episodes

that were later diagnosed as manifestations of bipolar disorder.

During his manic episodes, Mr. Temu believes he has superhuman

powers.         He    is    visibly      erratic       and    often       walks      into     busy

intersections to direct traffic because he thinks he has the

ability    to    prevent      car     accidents.          This      behavior         caught    the

attention       of    Tanzanian       officials        who    took     him      to    Muhimbili

Hospital in Dar es Salaam, Tanzania, in 2003.

     Mr. Temu’s admission to Muhimbili Hospital kicked off years

in asylums and prisons during which Mr. Temu suffered violent

physical    abuse.           At    his    asylum       hearing,      an    expert       witness

testified       that       Tanzanians       consider          mental      illness        to    be

shameful.        In    Tanzanian         culture,       severe      mental      illness       with

visibly erratic behavior is seen as a manifestation of demonic

possession.           Tanzanians         even    have     a    label      for     the    group,

referring to those with visibly severe mental illness as “mwenda

wazimu,”    which          means    demon-possessed.                The    expert       witness

testified that even medical professionals in Tanzania believe

that severe mental illness accompanied by erratic behavior is

caused by demonic possession.                    Laymen and doctors alike believe

that demonic possession is contagious.                         For this reason, even

                                                 3
though    friends    and    family    visited      Mr.   Temu   during   his    first

hospitalization, they deserted him within months.

     The    nurses    at    Muhimbili      Hospital      treated   Mr.   Temu    with

violence and abuse.          Nurses tied Mr. Temu’s hands and feet for

five to seven hours a day, four days per week.                     When Mr. Temu’s

condition worsened, his “treatment” became more inhumane, as he

was bound and beaten with leather straps for eight hours per

day, five or six days per week.                    Hospital stints turned into

prison    stints,    and    the    abuse   continued.        Prison    guards    beat

Mr. Temu with a club about his elbows and feet four days per

week.    The beatings were so severe that he could not walk.

     The record is unequivocal about what motivated the nurses’

and guards’ behavior.             Throughout all his hospitalizations, the

nurses referred to Mr. Temu as “mwenda wazimu.”                    The record also

shows that while binding Mr. Temu and beating him with leather

straps, the nurses said on multiple occasions, “this is how we

treat people who are mentally ill like you.”                       J.A. 135.       In

prison, the guards also referred to Mr. Temu as “mwenda wazimu.”

All prisoners were beaten, but Mr. Temu received worse beatings.

However, other prisoners who also suffered from severe mental

illness were beaten as much as Mr. Temu.

     Upon    coming    to    the    United     States,    Mr.   Temu   applied   for

asylum, withholding of removal, and relief under the Convention

Against      Torture        (“CAT”).           8    U.S.C.      §§ 1158(b)(1)(A),

                                           4
1231(b)(3)(A); 8 C.F.R. § 208.16.                 Mr. Temu argued that under 8

U.S.C. § 1101(a)(42), he faced severe persecution because of his

membership       in    the     social   group     of       individuals       with   bipolar

disorder who exhibit erratic behavior.                           The immigration judge

(“IJ”) denied Mr. Temu’s asylum and withholding claims.                                   In a

finding adopted by the BIA, the IJ concluded that Mr. Temu’s

proposed group lacks the elements of immutability, particularity

and   social     visibility         necessary     to       qualify      as   a   particular

social group under the INA.               In addition, both the IJ and BIA

concluded that even accepting Mr. Temu’s proposed group, he did

not show that he was persecuted because of his membership in

this group.           However, the IJ granted Mr. Temu CAT relief.                          In

doing so, the IJ and BIA found that Mr. Temu was tortured by

nurses and prison guards because he was mentally ill.

      Mr.   Temu       filed    a   timely    appeal        of    the   BIA’s     decision,

arguing     that      it   committed     error        in    denying     him      asylum    and

withholding of removal.              We have jurisdiction to hear his case

under 8 U.S.C. § 1252.



                                          II.

      Individuals qualify for asylum if they were persecuted “on

account     of   . . .       membership      in   a    particular        social     group.”




                                             5
8 U.S.C. § 1101(a)(42)(A). 1                This appeal raises two questions.

First,     we    must      analyze   whether      Mr.    Temu’s   proposed       group    of

“individuals with bipolar disorder who exhibit erratic behavior”

qualifies        as    a    “particular     social      group.”        Second,    we     ask

whether Mr. Temu was persecuted because of membership in his

proposed group.             Under Chevron, we give deference to the BIA’s

interpretation of the phrase “particular social group.”                                  See

Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010) (citing

Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984)).

However, in reviewing whether a group meets the BIA’s definition

of “particular social group,” we overturn a denial of asylum if

it    is   “manifestly           contrary    to    the     law    and     an    abuse    of

discretion.”           8 U.S.C. § 1252(b)(4)(D); see Zelaya v. Holder,

668 F.3d 159, 165 (4th Cir. 2012); Crespin-Valladares v. Holder,

632   F.3d      117,       124–126   (4th   Cir.     2011).       We    uphold    factual

findings        unless      no   rational   factfinder      could       agree    with    the

BIA’s position.            Crespin-Valladares, 632 F.3d at 124.


      1
       Because Mr. Temu was granted CAT relief, his right to
remain in the United States is not in dispute.      However, by
granting Mr. Temu CAT relief but not asylum, the BIA placed him
“in an unusual legal status.” Zuh v. Mukasey, 547 F.3d 504, 508
(4th Cir. 2008).    Without asylum, Mr. Temu is not allowed to
become a lawful permanent resident, nor is he allowed to work
without yearly authorization.   Id.  For these reasons, we have
expressed hesitation in placing immigrants in this “unusual
legal status,” which essentially amounts to immigration limbo.
Id.


                                             6
                                       III.

      We first consider the BIA’s conclusion that Mr. Temu was

not   persecuted       because   of   membership       in   his   proposed       group.

Because this is a factual finding, our task is not to decide how

we would rule in the first instance.                Rather, we must uphold the

BIA’s finding unless no rational factfinder could reach the same

conclusion.      See Crespin-Valladares, 632 F.3d at 124.                      In spite

of this stringent standard of review, we are compelled to vacate

because   the     BIA’s     finding    on     nexus       contains      two     logical

contradictions that no rational factfinder could hold.

      First, it is impossible to square the BIA’s conclusion with

the undisputed facts of the case.               The BIA credited Mr. Temu’s

testimony in its entirety, J.A. 151, and he testified not only

that nurses beat and bound him, but also that they explicitly

told him that “[t]his is how we treat people who are mentally

ill like you.”          J.A. 135.     Mr. Temu testified that in prison,

the guards beat all prisoners, but Mr. Temu was singled out for

worse beatings, and other prisoners with mental illness were

beaten as much as Mr. Temu.            J.A. 137.          Throughout his time in

prisons and hospitals, the nurses and guards referred to him as

“mwenda wazimu.”         J.A. 135–37.        We fail to see how a rational

factfinder      could    simultaneously       credit      these   facts       and   also

conclude that Mr. Temu was not persecuted because of his mental

illness   and    its    manifestations.        It    is     difficult     to    imagine

                                         7
evidence    that      is   more     persuasive       and    unequivocal      than    a

persecutor directly telling a victim, “[t]his is how we treat

mentally ill people like you.”              J.A. 135.

     Second,     the    BIA’s     nexus    finding    and   CAT    finding   are    at

logical    loggerheads.         The   BIA       adopted   the    IJ’s   finding   that

“there is no nexus between the respondent’s mistreatment and his

defined particular social group, which is defined in part by

bipolar disorder.”         J.A. 74.       That is, even accepting Mr. Temu’s

proposed group, the BIA concluded that his beatings were due to

his erratic behavior, not his bipolar disorder per se.                            Mere

pages later, however, the IJ granted CAT relief, finding that

Mr. Temu “was singled out for more frequent beatings because he

was mentally ill.”         J.A. 156. 2      We struggle to see how a rational

factfinder could conclude both that Mr. Temu was not persecuted

because    of   his    membership     in    the     group   of    individuals     with

bipolar disorder who exhibit erratic behavior, and also that he

was singled out for beatings because of his mental illness.                         It

might be possible to reconcile these conflicting findings, but

     2
       We note that this finding was unnecessary to a grant of
CAT relief, which only requires that an individual establish
that “it is more likely than not” that he would be tortured in
his home country. 8 C.F.R. § 208.16(c)(2). The BIA found that
Mr. Temu is likely to be tortured upon return to Tanzania, and
then it went out of its way to find that this torture would
occur because of his mental illness.      Thus, a grant of CAT
relief and a denial of asylum need not contradict one another,
but in this case, the BIA ensured that they did.



                                            8
it would demand logical acrobatics, and the BIA makes no attempt

to explain how it can believe that Mr. Temu was not persecuted

because of his bipolar disorder but was tortured because he was

mentally ill.

       We are mindful that reviewing courts should not substitute

their own judgment for the BIA’s in areas where the BIA is

entrusted     with    the   power    to   adjudicate        claims    in    the    first

instance.     See Zuh, 547 F.3d at 504.                This is not a case of a

mere difference in judgment.              When the very core of an opinion

is internally contradictory and advances diametrically opposed

conclusions        within   paragraphs,        this   is    the    very    essence    of

irrationality.        Because the BIA’s nexus finding collapses under

the weight of its logical defects, we are compelled to vacate

the BIA’s finding.



                                          IV.

       We   next    consider   the    BIA’s       conclusion       that    Mr.    Temu’s

proposed group does not qualify as a “particular social group”

under 8 U.S.C. § 1101(a)(42)(A).                Through its case law, the BIA

has    formulated      a    three-part     test       for    what    constitutes      a

“particular social group.”           See In re S-E-G-, 24 I & N Dec. 579

(BIA   July   30,     2008).    First,         individuals    in    the    group    must

“share a common, immutable characteristic . . . that members of

the group either cannot change, or should not be required to

                                           9
change.”         Id.     at       582–83     (internal       citation    and     quotation

omitted).       In addition, the group must have social visibility,

which    means        “the    group     should      generally    be     recognizable       by

others in the community.”                  Id. at 586.       Finally, the group must

be defined with particularity, which means the group must have

concrete,       identifiable           boundaries     that    allow     an    observer     to

distinguish members of a group from non-members.                         Id. at 584.

       We must uphold the BIA’s conclusion that Mr. Temu’s group

does    not    qualify       as    a   particular     social     group       unless   it   is

“manifestly contrary to the law and an abuse of discretion.”

Zelaya, 668 F.3d at 165.                     Because the BIA’s opinion rests on

legal error, we must reverse.                       It is unclear from the BIA’s

opinion whether it misapplied its own standard or applied a new

standard       without       explanation,       but   in     either   case,     the   BIA’s

legal analysis is manifestly contrary to the law.                             Further, the

BIA’s opinion rests on factual error.

                                               A.

       We     first    consider        the    BIA’s   social    visibility       analysis.

Social visibility does not mean ocular visibility:                             a group can

qualify as a social group even if one cannot identify members of

the group by sight.                See, e.g., Henriquez-Rivas v. Holder, 707

F.3d 1081, 1087–88 (9th Cir. 2013); Rivera-Barrientos v. Holder,

666 F.3d 641, 652 (10th Cir. 2012).                        Rather, social visibility

speaks to whether a group is in fact recognized as a group.                                See

                                               10
In re C-A-, 23 I. & N. Dec. 951, 959 (BIA 2006) (defining social

visibility    as     whether          a    group      is   “understood        by    others    to

constitute” a social group).                     For example, in the United States,

“Vietnam veterans, . . . cancer survivors, blind people, Cajuns,

practitioners       of    Falun           Gong    and      hippies”      would      likely    be

identified as social groups, whereas “second-born children and

haters of broccoli” would not.                          Henriquez-Rivas, 707 F.3d at

1096–97   (Kozinski,           J.,    dissenting).            Thus,      many      groups    have

qualified as socially visible under BIA case law, even though

their members are not visibly identifiable.                             See In re C-A-, 23

I. & N. Dec. at 959 (citing groups defined by kinship ties,

prior employment, and genital mutilation).

     Mr. Temu’s group appears to have a strong case for social

visibility,       but    the     BIA       never        applied    a    permissible         legal

standard.     The        BIA     found           that      while       “Tanzanian      society

unquestionably targets individuals who exhibit erratic behavior

for serious forms of mistreatment,” this mistreatment is not

“limited to those who have a diagnosis of bipolar disorder.”

J.A. 153.     For example, the IJ noted that a visibly intoxicated

person    might     exhibit          erratic      behavior        and   get     targeted     for

mistreatment.       Id.        On its face, it might appear that the IJ’s

opinion conflates the nexus requirement with social visibility,

but in fact, the IJ’s argument is much more subtle.                                   The IJ’s

argument is that a lack of nexus is evidence of a lack of social

                                                 11
visibility.         Thus,     if   persecutors          torture       a     wide       swath     of

victims    indiscriminately,         this        not    only     suggests          a    lack    of

nexus, but it also suggests that the persecutors did not even

consider any one victim’s particular social group.                                      This, in

turn, suggests a lack of social visibility.                       In sum, because the

persecutors       used   erratic     behavior          as   an   overbroad             proxy    for

identifying victims, the persecutors did not view Mr. Temu’s

proposed group as a group in the first place.

     This conclusion does not show that Mr. Temu’s group lacks

social visibility:            it shows that Mr. Temu’s group lacks 20/20

visibility.       The record is clear that Tanzanians view those with

severe, chronic mental illness who exhibit erratic behavior as a

group,    since     these     individuals        are    singled       out    for        abuse   in

hospitals     and    prisons       and    are     specifically            labeled        “mwenda

wazimu.”     J.A. 137, 145.              The nurses in this case explicitly

said that “this is how we treat people who are mentally ill like

you.”     J.A. 135 (emphasis added).               The fact that Tanzanians are

overbroad in assigning this label to individuals does not show

that social visibility is lacking.                      Though the persecution can

be poorly aimed in theory, Tanzanians still appear to view the

“mwenda    wazimu”       as    a   group,    and        that     is    all    that        social

visibility requires.           See Henriquez-Rivas, 707 F.3d at 1089.

     Another      formulation       of    the     social       visibility          test    lends

further support to this point.                  Circuit courts and the BIA have

                                            12
argued that a group is socially visible if it can show that it

is   singled    out    for    worse    treatment         than   other    groups.          For

example, the BIA rejected a group of non-criminal informants as

lacking   social       visibility      because      “informants         are   not    in    a

substantially different situation from anyone who has crossed

[the persecutors] or who is perceived to be a threat to the

[persecutors’] interests.”             In re C-A-, 23 I. & N. Dec. at 960–

61; see also In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 75 (BIA

2007); Ramos-Lopez v. Holder, 563 F.3d 855, 861 (9th Cir. 2009).

In this case, Mr. Temu meets that test easily.                          The undisputed

facts show that even though all prisoners were abused, Mr. Temu

was singled out for worse abuse, with the exception of other

prisoners with mental illness, who received the same increased

abuse as Mr. Temu.

      This formulation of social visibility also illustrates the

BIA’s legal misstep.          Evidence that persecutors target an entire

population     indiscriminately            can     be     evidence      of    no    social

visibility.      Id.     In that situation, the fact that members of a

particular      social       group    get    caught        in     the   same       net    is

irrelevant.      The BIA extended this reasoning to conclude that

any time a persecutor’s net is too large, social visibility must

be   lacking.     The     folly       of    this        legal   conclusion         can    be

demonstrated with a hypothetical.                  Imagine that an anti-Semitic

government     decides       to   massacre       any     Jewish    citizens.             Now,

                                            13
imagine that in putting its policy into practice, the government

collects a list of surnames of individuals who are known to be

Jewish and then kills anyone with the same surname.                      Jews and

Gentiles alike might be murdered, but this does not change the

fact that Jews have social visibility as a group.                      Meanwhile,

under the BIA’s reasoning, the fact that persecutors might lump

non-group    members    with   group      members      is,   by   itself,     enough

evidence to find a lack of social visibility.

      Similarly,   an     analogy    to     a   group    that     qualifies    as   a

particular social group is helpful in illustrating why the BIA’s

analysis in this case is impermissible.                 There is no doubt under

BIA or federal case law that kinship ties can serve as the basis

for a particular social group.            The BIA has identified “kinship

ties” as a paradigmatic example of a particular social group.

See Crespin-Valladares, 632 F.3d at 124–25 (citing In re C-A-,

23 I. & N. at 959; In re H-, 21 I. & N. Dec. 337, 342 (BIA

1996)).     This Court and “every circuit court to have considered

the   question”    have    reached     the      same    conclusion.      Crespin-

Valladares, 632 F.3d at 125 (collecting case law).                     Yet, under

the BIA’s reasoning in this case, if persecutors were using a

distinctive family trait like curly red hair to identify and

persecute individuals, then family ties would not qualify as a

particular social group, since persecution would not be “limited

to those” who are in the group.                  J.A. 153.         These examples

                                       14
illustrate why the BIA’s application of its social visibility

test is legally erroneous in this case.               Requiring what amounts

to 20/20 visibility, rather than social visibility, would lead

to absurd conclusions that flout the case law of this Court,

other circuit courts, and the BIA itself.

     There is no mechanical way to separate “haters of broccoli”

from “Vietnam veterans,” Henriquez-Rivas, 707 F.3d at 1096–97,

but one highly relevant factor is if the applicant’s group is

singled out for greater persecution than the population as a

whole.     In re C-A-, 23 I. & N. Dec. at 960–61.                    Similarly,

evidence that a proposed group has a specific label in a society

is highly relevant.          A group cannot be defined solely by the

fact of its persecution, Gatimi v. Holder, 578 F.3d 611, 616

(7th Cir. 2009), so evidence that members of a society have a

label for a proposed group helps suggest that the group has a

common thread outside of its victimhood, assuming of course that

the label is not something like “persecution victims.”                  In sum,

we vacate the BIA’s social visibility finding because it rests

on legal error.

                                          B.

     The     BIA   also     commits      legal   error    in   concluding     that

Mr. Temu’s    group     lacks     particularity.      Specifically,     the    BIA

erred    because   it     broke   down    Mr.    Temu’s   proposed   group    into

pieces and rejected each piece, rather than analyzing his group

                                          15
as a whole.         Once again, the BIA applied an impermissible legal

standard      because       it     rejected        groups      that    Mr.     Temu        never

proposed.

       A social group must have identifiable boundaries to meet

the     BIA’s      particularity         element.        For     example,       the        group

“affluent         Guatemalans”          fails      because       the      group       changes

dramatically based on who defines it. See In re A-M-E-, 24 I. &

N.    Dec.   at     76.   Affluent       might     include      the    wealthiest         1%   of

Guatemalans, or it might include the wealthiest 20%.                                Therefore,

this group lacks boundaries that are fixed enough to qualify as

a particular social group.

       In    this    case,       the    BIA     found    no     particularity         because

bipolar disorder is too broad and erratic behavior is too fuzzy.

First, bipolar disorder covers a wide range of severity.                                  At its

least severe, the disorder can be so mild as to be outwardly

undetectable.             Therefore,      the      disorder      covers       too    broad     a

spectrum of behavior to have identifiable boundaries.                               The other

component of Mr. Temu’s proposed group is erratic behavior, but

this,    too,     lacks     particularity.              The    definition       of    erratic

behavior changes based on who defines it, and it is difficult to

put precise, identifiable boundaries on what constitutes erratic

behavior.       Because each part of Mr. Temu’s proposed group lacks

particularity,        the    BIA       concluded     that      the    group    as     a    whole

fails.

                                              16
       The     BIA’s       opinion        commits      legal    error       by    splitting

Mr. Temu’s group in two and rejecting each part, rather than

considering it as a whole.                    See Crespin-Valladares, 632 F.3d at

125.     The BIA is correct that the label of mental illness can

cover a broad range of severity.                       On its own, it is possible—

though    we    do   not        decide—that      the    group   of     individuals          with

bipolar disorder lacks particularity because of its breadth, but

that is not Mr. Temu’s proposed group. Rather, Mr. Temu limits

his group to those individuals with bipolar disorder who exhibit

outwardly erratic behavior.                   It may well be that mental illness

lacks particular boundaries, since the label covers a huge swath

of     illness       that        ranges       from     life-ending       to      innocuous.

Mr. Temu’s       group      does    not    suffer      from    the   same     shortcoming,

because it is limited to a specific mental illness so severe

that individuals are visibly, identifiably disturbed.

       Similarly,         the    BIA    rejects      erratic    behavior         as    lacking

particularity.            Erratic       behavior       is   difficult    to      define     and

subjective.          We    doubt       that    “individuals      who    exhibit        erratic

behavior” would qualify as a particular social group, but again,

Mr. Temu proposed no such group.                       Rather, Mr. Temu’s group is

limited to individuals who exhibit erratic behavior and suffer

from    bipolar      disorder.           Unlike      “erratic    behavior,”           the   term

bipolar disorder has well-defined, identifiable characteristics.

See generally American Psychiatric Association, Diagnostic and

                                                17
Statistical Manual of Mental Disorders (5th Ed., 2013); World

Health Organization, International Statistical Classification of

Diseases    and   Related    Health    Problems      V(F30)–(F39)              (10th   ed.,

2010). The BIA faulted Mr. Temu’s group because it lacks an

“adequate benchmark,” J.A. 4, but that is precisely what the

DSM-V supplies with regard to the other component of Mr. Temu’s

group.     J.A. 4.     Thus, erratic behavior has unclear boundaries

that the other component of Mr. Temu’s group supplies.                           In turn,

bipolar disorder covers a broad spectrum of behavior that is

sharply limited by the requirement of erratic behavior.

      In essence, the BIA committed legal error because it missed

the forest for the trees.             While each component of Mr. Temu’s

group     might      not    satisfy       the     particularity            requirement

individually, the BIA must consider Mr. Temu’s definition as a

whole.     See Crespin-Valladares, 632 F.3d at 125 (“[The BIA’s

legal    error]   flowed    from    the    fact     that,       as   the       Government

concedes, the BIA’s removal order rejected a group different

from that which the [applicants] proposed”).                         For example, we

have recently found that the “group consisting of family members

of those who actively oppose gangs in El Salvador by agreeing to

be   prosecutorial     witnesses”     qualifies      as     a    particular        social

group.     Id. at 120–121, 125–26.           Each component of the group in

Crespin-Valladares         might    not      have    particular            boundaries.

“Prosecutorial     witnesses”      might     reach    too       broad      a    swath   of

                                        18
individuals;         “those      who   actively     oppose    gangs”      might       be   too

fuzzy a label for a group.               Our case law is clear, however, that

the group as a whole qualifies.                        In this case, the BIA took

issue with the component parts of Mr. Temu’s group, but it never

reached the stage of assessing the particularity of Mr. Temu’s

group    as    a     whole.       Instead,    it   considered       and    rejected        two

different groups that were based on pieces of Mr. Temu’s group.

        Thus, the BIA’s particularity analysis was based on legal

error.         The    INA     requires      that   an    individual       be    persecuted

because of membership in a “particular social group.”                             8 U.S.C.

§ 1101(a)(42).             Nothing in the statute requires that if a group

is defined by a collection of traits, that each individual trait

must    meet    all    the       criteria    for   a    “particular      social    group.”

Time and again, case law from this Court, other circuits, and

the    BIA    has     accepted      social    groups      that,   as     part    of    their

definitions, contain components that might not meet the BIA’s

legal standards.              See Crespin-Valladares, 632 F.3d at 120–21

(accepting the group of “family members of those who actively

oppose    gangs       in    El   Salvador     by   agreeing    to   be    prosecutorial

witnesses”); Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672

(7th Cir. 2005) (accepting the group of “educated, landowning

class of cattle farmers”); In re C-A-, 23 I. & N. at 960 (citing

favorably the group of “young women of a particular tribe who

were    opposed       to     female    genital     mutilation”      as     a    particular

                                              19
social group) (citing In re Kasinga, 21 I. & N. Dec. 357, 365–66

(BIA 1996)).          Notably, the BIA itself has accepted individuals

with bipolar disorder as a particular social group in the past,

albeit in cases that, like this one, were unpublished.                                  In re

Daniel    Francisco      Lopez-Sanchez,         2010    Immig.       Rptr.      LEXIS    7882

(BIA 2010); In re -A-, (BIA May 31, 2007) (slip op.).                             In fact,

after oral arguments in this case, the BIA issued a decision

accepting the particular social group of individuals in Ghana

with severe mental illness, specifically bipolar disorder, who

are indigent and lack family support.                       In re --, (BIA Nov. 15,

2013) (slip op.).            These cases illustrate that in making asylum

determinations, the BIA must consider an individual’s proposed

group as a whole.             Once again, it is unclear whether the BIA

misapplied      its    own    legal   standard         or    advanced      a    new     legal

standard    that      involves    piecemeal       analysis.           Either     way,     the

BIA’s opinion is “manifestly contrary to the law.”                                Crespin-

Valladares, 632 F.3d at 126.

                                           C.

      Particular       social     groups    must       also    be    characterized         by

immutability,      and    Mr.    Temu’s     proposed        group    easily      satisfies

this final element.           The BIA’s conclusion to the contrary rests

on factual error.         The BIA opinion finds that “there is no cure

for   bipolar    disorder,”       J.A.     154,   so    there       is    no    doubt    that

bipolar    disorder      is     immutable.        However,          the   BIA    found     no

                                           20
immutability     because      Mr.      Temu’s     erratic     behavior      can    be

controlled with medication.            Id.     However, in the same opinion,

the BIA also adopts the finding that “there is no consistent

access to the medications the respondent needs in Tanzania,” and

that because his family has abandoned Mr. Temu, he will not be

able to obtain what medications are available.                   J.A. 146.        Once

again, the BIA’s opinion advances two factual findings that are

impossible to reconcile without violating fundamental rules of

logic.     According to the BIA, Mr. Temu’s disorder will never be

cured and will only worsen.            J.A. 146.     He can only control his

behavior with medication, but he will not have access to this

medication in Tanzania.             The inescapable conclusion from this

finding is that if he is returned to Tanzania, Mr. Temu will not

be able to control his behavior.                In sum, Mr. Temu’s membership

in his proposed group is not something he has the power to

change.

     The    BIA’s    position    has    been     explicitly      rejected   by    the

Seventh    Circuit    and   by   the    BIA     itself.     In    Kholyavskiy      v.

Mukasey, the Seventh Circuit considered an asylum claim based in

part on the applicant’s mental illness.                   540 F.3d 555, 572–74

(7th Cir. 2008).       The BIA found no immutability because even if

the disease is incurable, the individual’s behavior could be

controlled     through      medication—medication         that     the   applicant

would not have access to if returned to his home country.                         The

                                         21
Seventh Circuit concluded that the BIA’s immutability argument,

which is identical to the one presented here, had no factual

basis.     Id. at 573.       Further, the BIA itself has found that

severe mental illness is immutable in two unpublished opinions,

explicitly     ruling     that   “bipolar       disorder      [is]    a     chronic

psychiatric condition subject to treatment but not cure, and

thus it [is] an immutable characteristic.”                In re -A-, (BIA May

31, 2007) (slip op.); In re --, (BIA Nov. 15, 2013) (slip op.)

(finding     immutability    because     bipolar     illness     is       permanent

regardless     of   medication).            These   cases     reach       the   same

conclusion that is compelled by the facts of this case:                     when an

individual suffers from an incurable mental illness, it is of no

relevance that somewhere in the world, there exists medication

that can help him control the illness.              If he cannot access the

medication, his behavior is as effectively immutable as if the

medication    did   not   exist.       Further,     the     underlying      bipolar

disorder will never change.        While it can be managed, this does

not mean that it can be cured.              These facts compel the finding

that Mr. Temu’s group membership is immutable.




                                       22
                                  V.

     For   the   foregoing   reasons,   we   grant   the   petition   for

review, vacate the BIA’s order affirming the IJ’s decision, and

remand for further consideration consistent with this opinion.



                                        PETITION FOR REVIEW GRANTED,
                                    ORDER VACATED, AND CASE REMANDED




                                  23
AGEE, Circuit Judge, dissenting:

       Because I find the majority opinion errs in holding that

the     Board     of     Immigration       Appeals         (“Board”)       impermissibly

interpreted       the     Immigration      and      Nationality      Act    (“INA”)    in

reviewing       Temu’s       application     for     asylum    and     withholding    of

removal under the INA, I respectfully dissent.                         Specifically, I

conclude that the Board did not err as a matter of law in its

determination       that       Temu’s   proposed       social    group      lacked    the

necessary characteristic of particularity.



                                             I.

       As the majority describes, the facts are not in dispute and

the immigration judge (“IJ”) found the evidence Temu presented—

including his own testimony about his treatment in Tanzania—to

be credible.       The record demonstrates that, beginning in 2001 or

2002,    Temu     began       displaying     erratic       behavior     and   was    both

hospitalized and jailed following episodes where he would walk

onto    a   road       and    attempt   to        direct    traffic.        During    his

hospitalizations and imprisonment, he was tied up and beaten.

The nurses and doctors indicated that they believed Temu was

mentally ill and referred to him by the term “mwenda wazimu,”

which roughly means “demon-possessed or deranged.”                            (A.R. 55,




                                             24
136. 1)          Upon Temu’s release, his family increasingly rejected

him as their efforts to rid him of his “evil spirit” failed.

(A.R. 56, 137.)

       While lawfully in the United States on a temporary visa,

Temu       was    taken      to   the   hospital   after     police    observed    him

standing in the middle of a street attempting to direct traffic.

Over time and after observation, medical professionals diagnosed

Temu with bipolar disorder.                  Temu’s visitor’s visa expired in

2006,       but    he     nevertheless       remained   in    the     United    States

unlawfully.               Although      he   can   be   employed      and      function

independently while on medication, Temu has suffered relapses

when he does not take his medications.                  On two occasions during

such relapses, Temu was detained in psychiatric facilities after

police observed him in the middle of a street attempting to

control traffic.

       In 2010, the Department of Homeland Security filed a notice

to appear against Temu charging him with eligibility for removal

based on overstaying his visitor’s visa without authorization.

He asserted eligibility for asylum and withholding of removal

under the INA based on his membership in a particular social

group,       which      he    identified      as   “schizophrenic      and     bipolar


       1
       Citations to the adopted administrative record filed with
this Court are denoted by “A.R.”



                                             25
individuals in Tanzania who exhibit outwardly erratic behavior.” 2

(A.R. 72, 153.)

      The IJ concluded that Temu satisfied the requirements for

filing a late application for relief, and also determined that

he    satisfied    the    criteria   for    relief   under   the   Convention

Against Torture.         As to Temu’s other claims, the IJ concluded

that Temu was ineligible for asylum or withholding of removal

under the INA because he failed to “demonstrate[] that the harm

he suffered was inflicted on account of his membership in a

cognizable particular social group as required by law.”                 (A.R.

72, 153.)    She held that Temu’s proposed group lacked the three

characteristics for a particular social group that the agency

has   determined    the   INA   requires:    particularity,    immutability,

and social visibility.          Alternatively, the IJ concluded that

Temu failed to demonstrate a nexus between his past persecution

and his membership in the proposed social group.                   The Board

adopted the IJ’s findings and conclusions, and dismissed Temu’s

appeal, agreeing that Temu’s proposed group did not satisfy the

requirements for a particular social group.




      2
       The alternate diagnosis of schizophrenia is no longer part
of Temu’s proposed social group.



                                      26
                                          II.

     The Court must uphold the denial of Temu’s application for

asylum unless the denial is “manifestly contrary to the law and

an abuse of discretion.”           8 U.S.C. § 1252(b)(4)(D).                Whether a

proposed group constitutes a particular social group under the

INA is a question of law that the Court reviews de novo.                         Lin v.

Mukasey,    517    F.3d   685,    691   (4th       Cir.   2008).      In    so   doing,

however, the Court accords Chevron 3 deference                       to the Board’s

reasonable interpretation of the INA.                  Id. at 691-92.       Where, as

here, the Board adopts the IJ’s decision and includes its own

reasons     for     affirming,    the         Court    reviews     both     decisions.

Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010).

     To establish eligibility for the discretionary relief of

asylum, Temu had the burden of showing that he has a “well-

founded fear of persecution on account of . . . membership in a

particular social group . . . .”                   Naizgi v. Gonzales, 455 F.3d

484, 486 (4th Cir. 2006) (citing 8 U.S.C. § 1101(a)(42)(A); 8

C.F.R. § 1208.13(a).          Temu faces a higher burden of proof to

establish     eligibility        for    withholding         of     removal—he        must

demonstrate “that it is more likely than not that [his] life or

freedom    would    be    threatened      .    .   .   because   of   [his]      .   .   .


     3
          Chevron    v.   Nat’l    Res.       Defense     Counsel,    467    U.S.     837
(1984).



                                          27
membership in a particular social group . . . .”                   Gomis v.

Holder, 571 F.3d 353, 359 (4th Cir. 2009) (citing 8 U.S.C. §

1231(b)(3)(A);    8    C.F.R.   §   208.16(b)(2));   see   also   Camara   v.

Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).

     The INA does not define “particular social group.”              The IJ

and Board rely on prior Board opinions that interpreted this

phrase to mean a group that (1) “share[s] a common, immutable

characteristic” other than the fact that they are targeted for

persecution,     (2)    that    “[has]     particular   and   well-defined

boundaries,” and (3) that “possess[es] a recognized level of

social visibility.” 4     (A.R. 68.)



     4
       On appeal, Temu challenges the Board’s use of this three-
part test in addition to its application of it, asserting that
requiring “social visibility” is a marked departure from the
Board’s long-standing approach to defining a “particular social
group” and that this Court should not afford this criteria
Chevron deference. The Attorney General responds that Temu has
waived appellate review of the Board’s use of the social
visibility criteria because he failed to raise this issue in his
appeal to the Board and thus has not exhaust his administrative
remedies, as required by the INA.
     The majority opinion does not address this issue and
proceeds instead directly to the Board’s application of the
social visibility criteria.       I would expressly hold that the
Court lacks jurisdiction to consider this aspect of Temu’s
claim.    The INA expressly requires exhaustion of administrative
remedies, 8 U.S.C. § 1252(d)(1), and as such there is no
futility exception to this requirement and it must be strictly
enforced.     See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).
And although this Court alone can resolve the question of
Chevron deference, the Board could have considered anew whether
its   use    of   the  three-part  criteria  was   an  appropriate
interpretation of the INA and cured its purported lack of an
(Continued)
                                      28
       Temu    challenges     the    IJ   and   Board’s   application    of   the

three-part analysis of his proposed group and its conclusion

that it was not a cognizable “particular social group” under the

INA.    As noted, the IJ and Board concluded that Temu’s proposed

group of bipolar individuals in Tanzania who exhibit outwardly

erratic behavior lacked all three characteristics necessary for

an alien to prove his or her “particular social group” status:

immutability, particularity, and social visibility.                 I conclude

that the Board’s decision can be upheld with respect to the

particularity requirement, and it is therefore unnecessary to

proceed further to deny Temu’s petition for review.                 See Zelaya

v. Holder, 668 F.3d 159, 167 (4th Cir. 2012) (affirming the

Board’s decision to deny asylum based on conclusion that the

proposed      group   lacks     particularity       without    discussing     the

remaining characteristics)

       As its title suggests, a “particular social group” must

have “particular and well-defined boundaries,” id. at 166, such

that it is not “too amorphous . . . to create a benchmark for

determining group membership,” Matter of S-E-G-, 24 I. & N. Dec.

579, 584 (B.I.A. 2008).             The majority concludes that the IJ and

Board’s       determination     that       Temu’s   proposed     group      lacks



explanation for why it was appropriate to use that construct had
Temu raised that issue for the Board’s consideration.



                                          29
particularity is based on an error of law.                           Maj. Op. at 15-20.

Specifically,         the   majority         opines     that     the          IJ     and        Board

“commit[ted] legal error by splitting Mr. Temu’s group in two

and rejecting each part, rather than considering it as a whole.”

Maj. Op. at 17.        I disagree.

       At the outset, it is fundamentally important to review the

IJ and Board’s actual holdings.                      The IJ concluded that Temu’s

proposed      social    group     lacked      particularity          “because           the      term

‘erratic      behavior’     is    too    amorphous       to    ‘provide            an    adequate

benchmark for determining group membership.’”                             (A.R. 72.)              It

explained that “[e]rratic behavior could range from eccentric

remarks       to    violent      outbursts.            Whether       one           perceives       a

particular         behavior      to     be     ‘erratic’        is        a    question           of

perspective, and as a result the respondent’s particular social

group lacks particularity.”                  (Id.)     The Board, in turn, agreed

with    the    IJ’s     conclusion       that        “‘erratic       behavior’             is    too

indeterminate to meet the requirement of particularity . . . as

the mentally ill . . . comprise a wide variety of different

individuals covering a broad range of functionality.”                                   (A.R. 4.)

And    in     rejecting       Temu’s     argument        that        he       satisfied          the

particularity requirement “with evidence that individuals with .

. . bipolar disorder suffer from a discrete set of symptoms[]

that include[s] erratic behavior,” the Board also noted that

“erratic behavior is an amorphous characteristic, which does not

                                              30
provide an adequate benchmark for determining group membership

or a concrete trait that would readily identify a person as

possessing such a characteristic.”                    (Id.)

       As the above recitation suggests, the Board did not divide

Temu’s proposed group into two discrete subsections and consider

them entirely apart from each other.                          To the extent that the

underlying analysis focused on the component parts, however, it

was not an error of law to do so.                          If each component of a

proposed social group is amorphous and lacks particularity then

it will often be true – and I conclude is the case here – that

the group as a whole also lacks the requisite particularity.

Far from being an aberration in this Court’s or the Board’s

precedent, the IJ and Board’s approach in this case is one that

both    the   Board   and    this     Court        have   used       in    the   past.      For

example, in Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011), the

Court    upheld     the     Board’s      conclusion           that    Lizama’s      proposed

social group of “young, Americanized, well-off Salvadoran male

deportees     with    criminal       histories          who     oppose      gangs”       lacked

particularity.        Id. at 442.             In so holding, the Court observed

that    the   component      parts       of    this    group        were    “all   amorphous

characteristics that neither ‘provide an adequate benchmark for

determining group membership,’ nor embody concrete traits that

would     readily      identify          a      person         as     possessing          those

characteristics.”            Id.    at       447    (internal        citation      omitted).

                                              31
Indeed, Lizama specifically argued that the Board had erred by

“dissect[ing]     [Lizama’s]       social        group       into    supbarts,       and

fail[ing] to consider the group in its totality.”                        Id.   Far from

recognizing that approach as legal error, the Court rejected the

argument for the simple reason that Lizama failed to “explain

how viewing the above-mentioned terms in conjunction with each

other makes the group any more particular[.]                       The truth remains

that, as a whole, the group described is not narrow or enduring

enough to clearly delineate its membership or readily identify

its members.”      Id. at 447-48.              If the approach taken by the

Board had been an error of law, Lizama would have recognized it

as   such   and   would     not    have    applied         the   same     approach   in

considering       whether         Lizama’s           proposed        group       lacked

particularity.

      As another example, in Zelaya v. Holder, 668 F.3d 159 (4th

Cir. 2012), Zelaya asserted that he was eligible for asylum and

withholding of removal based on his membership in the proposed

group of “young Honduran males who (1) refuse to join the Mara

Salvatrucha 13 gang (MS-13), (2) have notified the authorities

of   MS-13’s   harassment     tactics,         and   (3)    have    an    identifiable

tormentor within MS-13.”          Id. at 162.          In upholding the Board’s

denial of relief based on the conclusion that Zelaya’s group was

not cognizable under the INA, the Court held:



                                          32
     The critical problem with Zelaya’s proposed social
     group for purposes of seeking asylum is that it fails
     the BIA’s particularity requirement.        First, as we
     have previously recognized, opposition to gangs is an
     amorphous characteristic providing neither an adequate
     benchmark   for     determining   group  membership   nor
     embodying a concrete trait that would readily identify
     a   person   as    possessing   such   a  characteristic.
     Resisting gang recruitment is similarly amorphous, and
     the   fact    that    Zelaya’s   conduct   in   resisting
     recruitment included complaining twice to the police
     adds little to the particularity equation in the face
     of the common sense proposition that MS-13 would look
     unfavorably upon anyone who complained about its
     harassment tactics to the police.         Similarly, the
     concept that a person who is victimized by one gang
     member more than by other gang members somehow serves
     to particularize all such persons into a targeted
     social group is just nonsensical.

Id. at 166-67.    The Court thus considered the group as a whole,

but in so doing addressed why its specific components lacked

particularity as part of that whole.          Similarly, here, the Board

considered Temu’s proposed group and concluded that it consisted

of criteria that would not make that group “particular.”              (Cf.

A.R. 4.)    Far from being an error of law, that is precisely the

inquiry the IJ and Board are charged with undertaking.

     I conclude that the IJ and Board’s determinations after

conducting that proper legal inquiry are not manifestly contrary

to the law or an abuse of discretion.             No adequate benchmark

exists for determining whether an individual is a member of a

group defined as “bipolar individuals in Tanzania who engage in

erratic behavior.”         Contrary to the majority’s claim, there is

nothing    inherent   in    this   group’s   description   that   limits   a

                                      33
person’s erratic behavior to a diagnosis of bipolar disorder or

vice versa.     More to the point, bipolar disorder covers a wide

spectrum of behaviors and tendencies, and “erratic behavior” is

inherently subjective and amorphous.                   There is no discernible

basis for readily identifying an individual as being part of the

proposed group or not.             See, e.g., Mendoza-Alvarez v. Holder,

714 F.3d 1161, 164 (9th Cir. 2013) (per curiam) (rejecting the

proposed social groups of “all insulin-dependent diabetics or

all    insulin-dependent           diabetics     who       suffer     from      mental

illnesses”      (whether         the   group     contained         the    additional

characteristics       of    an    inability     to     work,   lack      of    medical

insurance, and a lack of money from other sources from which to

pay for essential medication or not) as lacking particularity

because the proposed group “include[s] large numbers of people

with different conditions and in different circumstances . . .

[and] [i]ndividuals may have these conditions separately or in

combination, and in varying degrees of severity” and thus are

“far from a particular, discrete social group”); Matter of S-E-

G-, 24 I. & N. Dec. at 585 (concluding that “male children who

lack stable families and meaningful adult protection, who are

from   middle   and   low    income       classes,   who    live    in   territories

controlled by the MS-13 gang, and who refuse recruitment” lacks

particularity    because         “these    characteristics     remain         amorphous



                                           34
[given    that]      ‘people’s      ideas    of     what    those      terms      mean     can

vary’”).

       The majority is correct that the IJ and Board must consider

the scope of the group the petitioner actually proffers.                                   See

Maj. Op. at 18.          And it is conceptually true that the INA does

not    require       “that   each   individual         trait     must     meet      all    the

criteria       for   a   ‘particular       social      group’”    in     order      for    the

proposed        group     considered        as     a    whole       to     satisfy         the

particularity requirement.             See Maj. Op. at 19.               But where none

of the proposed group’s parts satisfy the requirement, then it

will most frequently be the case that the whole cannot satisfy

it either.

       The     majority’s      reliance     on    Crespin-Valladares           v.   Holder,

632 F.3d 117 (4th Cir. 2011), is, I believe, misplaced because

there    the     petitioners’       proposed      group     consisted       in      part   of

family members, a trait that had previously been recognized as

being a discrete group that was well-defined.                       Id. at 125.            The

Board’s error in that case was ignoring that component of the

proposed group in conducting its original analysis and then re-

characterizing the group on remand beyond its proposed scope.

Id.;     see    also     Zelaya,     668     F.3d      at   166     (noting         Crespin-

Valladares’s         holding    that   “the       self-limiting          nature     of     the

family unit satisfied the particularity requirement”).                              Neither

the IJ nor the Board engaged in similar conduct here; instead,

                                            35
they    considered     Temu’s      proposed   group       according    to     each

component he urged and found that this proposed group lacked the

requisite particularity.           For the reasons described above, I

would hold that their analysis was not manifestly contrary to

the law or an abuse of discretion.



                                       III.

       Because I would uphold the Board’s decision with respect to

particularity, it follows that Temu’s proposed group would fail

to   satisfy   all    the   required    characteristics      of   a   particular

social group, and his claim would fail as a matter of law.                    Cf.

Zelaya, 668 F.3d at 167.        As such, I do not find it necessary to

consider   Temu’s      remaining    arguments.        I   would   deny      Temu’s

petition for review, thereby affirming the Board’s decision to

deny Temu’s application for asylum and withholding of removal

under the INA.       I therefore respectfully dissent.




                                        36
