Lisseth Andrea Hurtado-Perez, a native and citizen of El Salvador, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) after claiming she was targeted because she witnessed the murder of family members by criminals or security forces. An Immigration Judge denied her application, and the Board of Immigration Appeals affirmed that decision. Hurtado-Perez petitioned the Ninth Circuit for review, arguing that she belongs to a cognizable particular social group and that the Salvadoran government acquiesced in the torture she fears. The case was decided by a panel consisting of Circuit Judges Higginson, Nguyen, and Bress.
The court applied substantial evidence review to the agency's factual findings and de novo review to its legal conclusions. The central issue was whether Hurtado-Perez's proposed particular social groups—Salvadorans who witnessed criminal activity and family members of crime victims—met the three-part test for cognizability: immutable characteristic, particularity, and social distinctness. The court found that while the record showed she witnessed crimes, it lacked evidence that Salvadoran society perceives such individuals as a distinct group. The court distinguished her case from Henriquez-Rivas, noting that the petitioner in that case had publicly testified against gang members in court, making her social visibility apparent. Hurtado-Perez did not publicly testify or report the perpetrators to the police. Furthermore, the court found no evidence that Salvadoran law or society recognizes mere witnesses as a distinct group. Regarding the family member claim, the court acknowledged that family is a quintessential particular social group but found no evidence that family members of crime victims are perceived as set apart from other persons in Salvadoran society. Because social distinction was dispositive, the court affirmed the denial of asylum and withholding of removal. On the CAT claim, the court held that the record did not compel a finding that the assailants were state actors. Additionally, the court ruled that general government ineffectiveness in investigating crime does not constitute acquiescence to torture, citing Andrade-Garcia and Colin-Villavicencio.
The petition for review is denied, and the BIA's order denying relief stands. The decision reinforces the strict requirement for social distinctness in particular social group claims for Salvadoran nationals, particularly regarding witnesses to crime. It clarifies that without evidence of public testimony or specific legal recognition, witnessing a crime alone does not create a cognizable group. The ruling also reiterates that general government inability to prevent crime does not satisfy the high bar for CAT acquiescence.
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