Geral Ayala, along with his wife Marcela Morales and their minor daughter, petitioned the Ninth Circuit for review of a Board of Immigration Appeals (BIA) order. The BIA had affirmed an immigration judge's decision denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petitioners are natives and citizens of Colombia who alleged they faced harm from members of a soccer fan club called Fortaleza Leoparda Sur, of which Ayala was a former member, as well as from police. The agency found that the harm they experienced did not amount to persecution and that their proposed groups for asylum eligibility did not meet legal requirements.
The panel applied the substantial evidence standard to review the agency's findings. First, regarding the claim of persecution, the court noted that while Ayala experienced intermittent harm and threats, these incidents did not involve significant physical violence or serious injuries requiring medical treatment. The court emphasized that threats alone, without accompanying physical violence that causes significant suffering, do not compel a finding of past persecution. The record showed Ayala was beaten as a teenager and threatened with death, but he never required medical care, and his wife and daughter were never harmed. Second, the court addressed the proposed particular social groups (PSGs). The BIA found the group 'Colombian witnesses to crimes who are willing to testify against criminals' lacked particularity because willingness to testify is changeable and cannot be easily verified. The court agreed, citing precedent that groups based on general opposition to violence or fluid membership are not cognizable. The BIA also found the group 'former members of Fortaleza Leoparda Sur' lacked social distinction. The court rejected Ayala's argument that this group was socially distinct, noting his reliance on materials outside the administrative record and conclusory statements. Finally, the court held the agency did not err by skipping a nexus analysis, as it had already determined the groups were not cognizable. Regarding CAT protection, the court found no substantial evidence that it was more likely than not the petitioners would be tortured if returned to Colombia.
The petition is dismissed, and the BIA's order denying asylum, withholding of removal, and CAT protection remains in effect. The petitioners face removal to Colombia. The decision reinforces the Ninth Circuit's strict application of the substantial evidence standard regarding the severity of harm required for persecution and clarifies that proposed social groups must be clearly defined and socially distinct within the specific country context.
Podcast (federal-narrative-summaries): Play in new window | Download