Background
Petitioners Evelyn Yesenia Navarro Diaz and Y. I. B. N., natives of El Salvador, sought review of a Board of Immigration Appeals decision dismissing their claims for asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge had denied the Lead Petitioner’s claims for asylum, withholding of removal, and CAT protection, and denied the Rider Petitioner’s derivative asylum claim. The petitioners argued that the Lead Petitioner faced a well-founded fear of future persecution due to imputed political opinion and membership in a particular social group of Salvadoran persons with tattoos.
The court’s reasoning
The court reviewed the agency’s legal determinations de novo and factual findings for substantial evidence. It held that substantial evidence supported the determination that the Lead Petitioner did not establish a well-founded fear of future persecution. The court found that the petitioner failed to demonstrate that her non-gang affiliated tattoos depicted a political opinion or that she faced an individualized risk of persecution. Additionally, the court agreed with the agency that Salvadoran persons with tattoos is not a cognizable social group because it is not sufficiently particularized and socially distinct. The court also noted that arguments regarding narrower social groups were not exhausted before the agency. Regarding the Convention Against Torture claim, the court found that generalized evidence of country conditions was insufficient to establish that the petitioner was more likely than not to be tortured. The court also dismissed the Rider Petitioner’s claims due to lack of administrative exhaustion.
What it means going forward
The denial of the petition leaves the Board of Immigration Appeals order in place, resulting in the denial of asylum, withholding of removal, and Convention Against Torture protection for the Lead Petitioner and the dismissal of the derivative claim for the Rider Petitioner. The temporary stay of removal remains in effect until the mandate issues.