recent Immigration Law Precedents: Case Briefs and Analysis

Petitioners, Candelaria De Los Angeles Corpeno-Romero and her child, Javi Alexander Cornejo-Corpeno, natives and citizens of El Salvador, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) to avoid returning to El Salvador. They argued they would face persecution from gangs due to their familial situation and opposition to gang violence. Javi’s father was killed by gang members, and Javi had resisted recruitment.

Whether the Board of Immigration Appeals (BIA) erred in denying asylum, withholding of removal, and CAT protection based on the petitioners’ claimed fear of persecution due to their familial status, opposition to gangs, and risk of torture upon return to El Salvador.

Asylum, withholding of removal, and CAT relief require evidence of past persecution or a well-founded fear of future persecution on account of specific grounds (such as political opinion or membership in a particular social group). Under CAT, petitioners must show it is more likely than not that they would face torture with the acquiescence of government officials if returned to their home country.

 In the Ninth Circuit’s analysis of Candelaria De Los Angeles Corpeno-Romero and Javi Alexander Cornejo-Corpeno v. Merrick B. Garland, the court addressed each of the petitioners' claims methodically to determine if substantial evidence supported the BIA’s conclusions:

• PSG Definition and Criteria: The court evaluated whether the proposed PSGs—(1) "Salvadoran women without male familial protection," (2) "Salvadorans who openly oppose criminal gangs with societal reach," and (3) "Salvadoran parents of youth who have resisted gang recruitment"—met the standards required for a cognizable PSG under asylum law. According to immigration law, a PSG must have (a) immutability, (b) social visibility or distinctiveness, and (c) particularity.
• Court’s Analysis of Social Distinctiveness and Particularity: The court emphasized that PSGs must be recognized as socially distinct in Salvadoran society. The claim that Salvadoran women without male protection constitute a PSG lacked merit, as the record showed no indication of harm to Candelaria based on her family status. Additionally, Salvadorans opposing gangs did not demonstrate societal recognition or shared unifying factors that would narrow the group sufficiently for legal purposes.
• Precedent Cited: The court cited Ramos-Lopez v. Holder and Santos-Lemus v. Mukasey, where similar PSGs, based on gang resistance, failed to meet the standards due to lack of a “shared trait that makes the group recognizable within society.” This precedent underscores that merely fleeing or refusing to engage with gang activity does not inherently create a recognized social group.

• Claim of Anti-Gang Political Opinion: Petitioners argued they held a political opinion opposing the criminal gang M-18, shown by Javi’s resistance to recruitment and Candelaria’s association with a police station 16 years prior. For political opinion asylum claims, an individual must prove that they hold and express a conscious, discernible stance that triggers gang persecution.
• Court’s Findings on Political Opinion: The court found the evidence lacking, as there was no public or deliberate expression of political dissent by the petitioners against M-18. The Ninth Circuit referenced Barrios v. Holder and Rodriguez-Zuniga v. Garland, where passive resistance or silent opposition to gangs did not qualify as political opinion. The court maintained that such opinions must be deliberate and observable to qualify for protection.

• Legal Standard for CAT Protection: Under CAT, petitioners must show that it is more likely than not they would face torture if returned to El Salvador, with such torture inflicted or sanctioned by a government official. This standard requires a clear connection between potential harm and governmental involvement or acquiescence.
• Court’s Evaluation of Evidence for Torture: The court determined that the petitioners failed to demonstrate a likelihood of government-sanctioned torture. Although Javi’s father was killed by gang members, the responsible parties were prosecuted and served prison sentences, suggesting government action against the gangs. This undermined the claim that Salvadoran authorities would likely acquiesce in or allow future torture of the petitioners.
• Precedent and Statutory Interpretation: The court relied on CAT regulations, specifically 8 C.F.R. § 1208.18(a)(1), to affirm that torture under CAT must involve state consent or at least indifference by public officials. The Ninth Circuit has consistently required strong proof of government acquiescence for CAT claims, a bar the petitioners could not meet.

• Substantial Evidence in Review: The court’s review focused on whether the BIA’s findings were supported by substantial evidence, meaning such findings should not be overturned unless the record compels a different conclusion. This is a high threshold that respects the agency’s fact-finding role.
• Conclusion Based on Record: The court reiterated that for each claim—PSG, political opinion, and CAT—the evidence presented did not sufficiently compel a finding in favor of the petitioners, thus upholding the BIA’s denial.

The Ninth Circuit found that substantial evidence supported the BIA's determination that the petitioners' claims did not meet the standards required for asylum, withholding of removal, or CAT protection. The court’s analysis set a clear expectation that claims based on gang-related threats must demonstrate social and legal distinctiveness, overt political dissent, or credible risk of state-condoned torture to qualify for immigration relief. Consequently, the case was partially remanded, offering the petitioners the possibility of addressing any procedural gaps in their claims but affirming the core elements of the BIA’s decision.

The court granted the petition in part and denied it in part, remanding the case to the BIA for further proceedings aligned with this analysis. This decision reaffirms the standards required to meet asylum and CAT protections under U.S. immigration law.

This case highlights the Ninth Circuit’s stringent approach to defining PSG and political opinion in asylum cases, limiting eligibility for individuals threatened by gangs unless the criteria for protected grounds are met. The ruling aligns with previous decisions that reject gang resistance as sufficient grounds for asylum without broader political or social distinction. 

Under U.S. immigration law, asylum is protection granted to foreign nationals who have fled their country due to persecution or a well-founded fear of future persecution. To qualify, the persecution must be based on one or more protected grounds:

• Race
• Religion
• Nationality
• Membership in a particular social group (PSG)
• Political opinion
• Establishing a "Particular Social Group" (PSG):
  
  •  A PSG is a group of people who share a common, unchangeable characteristic, such as a family relationship or other social attributes that the society recognizes.
  • Criteria: Courts require that the group be:
    • Immutable: Members cannot change the characteristic or should not be required to.
    • Socially Distinct: The society from which the applicant is fleeing recognizes the group as distinct.
    • Particular: The group must be specifically defined with clear boundaries.
  • Application in This Case: The court found that the petitioners’ proposed PSGs—such as "Salvadoran women without male protection" and "Salvadoran parents of children who resisted gang recruitment"—did not satisfy these criteria because Salvadoran society does not distinctly recognize these groups, nor were they narrowly defined.

• Political Opinion in Asylum Claims:
  
  • Definition: A claim based on political opinion requires showing persecution due to holding or expressing a particular viewpoint, especially if it opposes a powerful entity (such as the government or, in some cases, gangs).
  • Requirement of Expression: Courts look for evidence that the applicant openly expressed their opinion in a way that would make them a target of persecution.
  • Application in This Case: The court found that merely refusing to join a gang or fleeing gang threats did not amount to an expressed, political opposition against gangs. Past case law requires a visible stance or clear, politically motivated actions to satisfy this claim.

• Withholding of removal is similar to asylum but has a higher standard of proof. Petitioners must show a "clear probability" that they will be persecuted if returned to their home country. This means that it must be more likely than not that they would face persecution on account of a protected ground (race, religion, nationality, PSG, or political opinion).
• Key Differences from Asylum:
  • Withholding of removal does not allow for a path to U.S. citizenship.
  • The burden of proof is higher, as applicants must demonstrate a more certain likelihood of persecution.
• Application in This Case: The court did not find sufficient evidence to meet the clear probability of persecution required for withholding of removal, due to a lack of evidence that their proposed PSGs were cognizable or that they expressed a political opinion.

• The Convention Against Torture offers protection to those who can show that they are likely to be tortured if removed to their country. Torture, in this context, is defined as severe pain or suffering intentionally inflicted by or with the consent or acquiescence of a public official.
• Requirements:
  • Likelihood of Torture: Petitioners must show it is "more likely than not" they will face torture.
  • Government Involvement or Consent: There must be evidence that the torture would be carried out or at least tolerated by the government.
• Application in This Case: The court found that the gang-related risk of harm did not meet the standard for CAT protection. The prosecution and imprisonment of Javi's father’s killers suggested that the government does not acquiesce to gang violence, which weakened the CAT claim.

• Substantial Evidence Standard: The court used the "substantial evidence" standard to review the BIA’s findings, which means that the court will uphold the BIA’s decision unless the evidence presented by the petitioners "compels" a different conclusion.
• Application in This Case: The Ninth Circuit did not find evidence compelling enough to overturn the BIA’s decision, as the petitioners' claims did not meet the legal requirements for asylum, withholding, or CAT.

• Ramos-Lopez v. Holder and Santos-Lemus v. Mukasey: These cases reinforce that groups based solely on gang resistance (like refusing to join a gang) generally do not meet the legal definition of a PSG.
• Barrios v. Holder: Established that passive opposition (like refusing to join) is insufficient to establish a political opinion.
• Rodriguez-Zuniga v. Garland: Stressed that a political opinion must be a "sufficiently conscious and deliberate" expression to qualify for asylum.

The practical implications of this case for non-citizens seeking asylum, withholding of removal, or protection under the Convention Against Torture (CAT) are significant, particularly for those fleeing gang-related violence or social instability in their home countries. Here are the key takeaways:

• Asylum and Withholding of Removal: Non-citizens must present concrete evidence that they face persecution on one of the five protected grounds (race, religion, nationality, political opinion, or membership in a particular social group). Courts will not grant asylum based solely on general violence or gang threats; applicants must show that they are specifically targeted due to an immutable characteristic or clear stance.
• CAT Protection: To qualify, non-citizens must demonstrate a high likelihood of torture, with involvement or acquiescence from government officials. This is particularly challenging when governments in the applicant’s country take actions against gangs, as it undermines claims of state-sanctioned harm.
• Practical Impact: Non-citizens from countries with high gang violence, like parts of Central America, face a substantial burden to prove that their risk is individualized and politically or socially significant, rather than part of a broader societal threat.

• The case underscores that PSGs must be specific, socially distinct, and recognized as cohesive groups in their home society. For example, being a "young person who refuses gang recruitment" often does not qualify, as courts find this too broad and insufficiently recognized in many societies as a distinct group.
• Practical Advice: Non-citizens should present PSG claims that meet the legal criteria and show that they belong to a narrowly defined, socially recognized group. Often, familial relationships, tribal affiliations, or associations tied to highly visible social roles are more likely to qualify than broad resistance to gangs.

• Deliberate and Visible Stance Required: For asylum based on political opinion, non-citizens must demonstrate that their stance is openly expressed and recognized as a political viewpoint, not merely passive resistance or a personal choice.
• Practical Advice: Non-citizens who have actively engaged in anti-government or anti-gang actions, protested, or aligned themselves with a recognized political cause are more likely to succeed in asylum claims. Passive actions, like declining to join a gang or avoiding interaction with gang members, are typically insufficient.

• High Threshold for Overturning BIA Decisions: The substantial evidence standard used in appeals means that courts defer significantly to the findings of the immigration judge and BIA unless the applicant provides compelling evidence to the contrary.
• Practical Advice: Non-citizens should present the strongest possible case, with clear evidence and documentation, in initial hearings rather than relying on appeals. Appeals are rarely successful without new, compelling evidence or clear legal errors.

• Need for Legal Assistance: This case highlights the complex legal standards non-citizens face in immigration courts. Having experienced legal representation can make a significant difference in how well a case is presented, as attorneys can help craft narrower, legally compliant arguments around PSG or political opinion.
• Building a Record of Persecution: Non-citizens can benefit from documenting any past persecution, reporting threats to authorities (if safe), and showing any affiliations with social or political groups that increase their vulnerability.

Non-citizens fleeing general violence or instability should consider alternative legal pathways or evidence, as general risks of gang violence alone do not often meet the standards for asylum. They may instead focus on more specific legal arguments, such as showing a distinct political affiliation or familial vulnerability that heightens their risk of persecution, and actively seek legal aid early in their application process.