Thomas: Why “Boss Ronnie’s” Family Had to Go Back to the Agency First

You fear harm because of who your relative is or what your relative did. Asylum law protects people persecuted because of “membership in a particular social group.” Can a family be that group, and who decides? A court of appeals generally cannot make that call before the immigration agency does. Today the agency’s answer is demanding: A family counts only if the applicant proves it is defined with enough particularity and is seen as distinct in the society at home. Being related is not enough.

The who-decides rule comes from Gonzales v. Thomas, 547 U.S. 183 (2006), No. 05-552, decided April 17, 2006. The government asked the Supreme Court to set aside a Ninth Circuit en banc decision holding that one South African family was a particular social group. The Court agreed in a short unsigned opinion, issued without oral argument. It vacated the Ninth Circuit’s judgment and sent the case back so the agency could address the question first.

Threats aimed at a foreman’s family

Michelle Thomas, her husband and their two children are white South Africans who came to the United States as visitors in 1997. They applied for asylum within a year. These facts come from the Ninth Circuit’s en banc opinion, Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), which the Supreme Court later vacated on the remand question.

Michelle was the only applicant who testified. The immigration judge made no adverse credibility finding, so the en banc court accepted her testimony as true. By that testimony, the family’s trouble grew out of her father-in-law, known as “Boss Ronnie,” a foreman at a Durban construction company who was racist and abused the Black workers under him. She testified that their dog was poisoned, their car was vandalized and feces were thrown at their door. She said a man wearing the company’s overalls threatened to come back and cut her throat, and that four men later tried to take her daughter from her arms, one of them in the same overalls. She believed the attackers went after her family rather than Boss Ronnie because he was armed and lived in what amounted to a fortress. The immigration judge attributed the harm to random crime and rejected the link to Boss Ronnie.

The agency never squarely decided the family claim

On their application, the Thomases checked boxes for political opinion and membership in a particular social group. At the hearing they emphasized their race and their kinship with Boss Ronnie. The immigration judge focused on race and political views and rejected the claim. The Board of Immigration Appeals, responding mainly to race-related arguments, summarily affirmed.

A Ninth Circuit panel held by a 2-to-1 vote that the Board had not adequately considered the family claim. The court then reheard the case en banc. It unanimously held that a family can be a particular social group, overruling earlier circuit precedent that it considered out of line. Over the dissent of four judges, it went further and held that “persons related to Boss Ronnie” were such a group and that the Thomases had been targeted because they belonged to it.

A remand that came too late

The en banc court believed it was following the remand rule. Citing INS v. Orlando Ventura, 537 U.S. 12 (2002), it did remand for the Board to decide whether the threats and attacks were serious enough to be persecution and to address other remaining issues. But it had already decided the group question and the question of why the family was targeted. The dissenting judges said the agency should have considered the group question first.

Agreeing with the Solicitor General, the Supreme Court reached the same conclusion as the dissent. Ventura had already reversed the Ninth Circuit for deciding a question about changed conditions in Guatemala that the Board had not reached. The error here, the Court said, was “obvious in light of Ventura.” The agency had “not yet considered whether Boss Ronnie’s family presents the kind of ‘kinship ties’ that constitute a ‘particular social group.’” And the question was one for the agency in the first instance: “The matter requires determining the facts and deciding whether the facts as found fall within a statutory term.” The Court found “no special circumstance” that justified the Ninth Circuit’s going first.

The Court treated this as a straightforward application of Ventura. As we read the decision, though, it shows that a partial remand does not cure the problem. The Ninth Circuit sent several issues back and still erred, because it kept for itself a question the agency had not addressed.

A family claim after the remand

The Court required the agency to address this family’s claim first. The opinion expressly vacated the judgment and remanded for further proceedings.

The vacatur did not end the Ninth Circuit’s general view that a family may be a particular social group. In Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015), the court restated that part of the en banc opinion, described the opinion as vacated on other grounds and said that, even under the Board’s newer three-part test, “the family remains the quintessential particular social group.” Rios did not decide whether the applicant’s own family qualified. It left that claim for the Board. It ended in a remand, the same result Thomas requires, though it relied on circuit precedent that the Board may not ignore a petitioner’s arguments. The Board had not addressed a withholding claim based on a gang’s vendetta against the applicant’s family, “a failure that constitutes error and requires remand.”

What family claims face now

Since then, the agency has spoken, and it has not stayed still. In Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), the Board said a family may be a particular social group but that membership alone does not prove the harm occurred because of it. In 2019 Attorney General Barr issued a further Matter of L-E-A- decision, 27 I&N Dec. 581, concluding that a family-based group qualifies only if it meets the particularity and social-distinction requirements. In 2021 Attorney General Garland vacated that decision in Matter of L-E-A-, 28 I&N Dec. 304.

On September 2, 2025, Attorney General Bondi reversed course in Matter of R-E-R-M- & J-D-R-M-, 29 I&N Dec. 202 (A.G. 2025). The decision overruled the 2021 decision and instructed immigration judges and the Board to follow the 2019 decision “in all pending and future cases.” Under that standard, a family-based group qualifies only if it is “defined with sufficient particularity” and is “socially distinct in his society.” Society in general, and not just the persecutor, must see the family as a group. The decision says that, to the extent circuit decisions adopted a categorical rule that any nuclear family could be a particular social group, that result would be inconsistent with the asylum laws and Board precedent. It also remanded the case to the Board without deciding the respondents’ claim.

In our view, that may set up a conflict in Ninth Circuit cases, although neither decision addresses the other. Rios is published circuit authority and calls the family the quintessential group under the Board’s test, but it left the applicant’s own family claim for the Board. The Attorney General’s decision is binding on immigration judges and the Board, and it demands a case-specific showing. R-E-R-M- tries to account for Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), by calling its reading the best reading of the statute. Under Loper Bright, courts decide what a statute means using their own judgment. Whether a court will follow Rios over R-E-R-M-, and how much of Thomas’s remedy survives for a pure question of statutory meaning, are open questions we would expect the government and applicants to contest. Thomas itself involved facts as well as law, and in our view that part of its reasoning should be unaffected.

What this means if you fear harm because of a relative

These steps are our practical advice, based on these decisions and the agency’s current position.

• Name the group precisely. Say which family and which relatives, not simply your family in general. R-E-R-M- asks for boundaries that can be identified.
• Prove that others see this family as a group. Gather evidence that the community knows the family: reputation, surname, position in town, news reports, statements from neighbors. Evidence that only the persecutor singled out the family may not be enough under the agency’s standard.
• Prove why you were targeted. A group alone does not win the case. For asylum, the statute, 8 U.S.C. § 1158(b)(1)(B)(i), requires that the protected ground be at least one central reason for the harm. Keep the threats, the words used and what happened to other relatives.
• State the family claim in writing, every time. The Thomases checked the social-group box, but the immigration judge focused on race and political views, and the Supreme Court described their arguments to the Board as primarily race-related. Put the family theory in the application, the declaration, the hearing argument, the notice of appeal and the Board brief.
• Make the record under both lines of authority. Build the particularity and social-distinction evidence the agency demands, and preserve the argument that Rios and the statute support the family group. An issue not raised before the agency may be lost in court.
• Expect a remand, not a win. If the Board skips your family claim, the usual remedy is another round at the agency, under whatever standard then applies.

Later developments

Three days after this analysis’s June 2, 2026 date, the Board applied the 2019 standard to a family claim in Matter of S-E-M-Z-, 29 I&N Dec. 680 (BIA June 5, 2026). The immigration judge had found that people in Honduran neighborhoods know each other and each other’s families. The Board held that social distinction must generally be measured countrywide, reasoning that “treating a neighborhood or other limited geographic location as the relevant society for the social distinction inquiry is inconsistent with the INA’s focus on countrywide persecution,” and it found insufficient evidence that this family carried greater significance in Honduran society. It also reversed on causation, because recruitment and the gang’s power and control were the only central reasons for the harm, and it sustained the government’s appeal, vacated the grant of withholding of removal and returned the record only so the immigration judge could consider a Convention Against Torture claim. In our view, after S-E-M-Z-, statements from neighbors and a local reputation may not be enough on their own. The Board pointed to country conditions reports, expert testimony and press accounts as ways to show that a group is distinct in the wider society. The case arose in the Fifth Circuit. The Board noted that the Ninth Circuit also accepts a second way to prove causation: “whether the motive arising from a protected ground was sufficient on its own to cause the harm.” The Board did not discuss Rios, and whether a court in the Ninth Circuit would follow Rios over these agency decisions remains open.