Maria Magdalena Perez De Lopez and her son, Jose Noel Lopez Perez, natives of El Salvador, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). They alleged that Jose was targeted by a classmate, Marcos Cruz, who claimed to be a member of the MS-13 gang and demanded extortion payments. When Jose failed to pay, he received death threats. The petitioners also cited the murders of a cousin and friends as evidence of persecution. The Immigration Judge and the Board of Immigration Appeals (BIA) denied their applications, finding that the threats did not amount to persecution and that the proposed particular social group was not cognizable. The petitioners appealed to the Ninth Circuit, challenging the agency's factual findings and legal conclusions.
The Ninth Circuit applied the substantial evidence standard, which requires that the agency's findings be supported by reasonable, substantial, and probative evidence on the record considered as a whole. First, regarding past persecution, the court noted that while threats can constitute persecution when accompanied by violence or near-confrontations, the surrounding circumstances here did not compel such a finding. Jose was not harmed when he failed to pay, and neither he nor his mother were approached after he stopped attending school. The court also upheld the agency's decision to discount the murders of family and friends, noting that harm to others is relevant only when it is part of a pattern of persecution closely tied to the petitioner. Second, on the issue of future persecution, the court found the petitioners' fear was not objectively reasonable. The record lacked sufficient evidence that Cruz was actually a member of MS-13 or that the gang was interested in targeting the mother. Third, the court addressed the proposed particular social group: 'students in public schools in El Salvador who report gang extortion to school authorities.' Citing Matter of M-E-V-G-, the court held that the petitioners failed to show this group is socially distinct, meaning set apart in a significant way within Salvadoran society. Fourth, the court rejected the argument that Jose's opposition to gang control constituted a political opinion basis for the threats, as the record did not compel that conclusion. Finally, regarding CAT relief, the court found that the petitioners failed to meet the 'more likely than not' standard for torture, as the evidence did not compel a finding that they would be tortured if removed.
The petition for review is denied, and the BIA's order denying relief is affirmed. The temporary stay of removal remains in place until the mandate issues. This decision reinforces the high bar for establishing a cognizable particular social group in gang-related cases and clarifies that death threats without corroborating evidence of gang membership or actual violence may not suffice for asylum eligibility. The case leaves open the question of what specific evidence is required to prove a gang member's affiliation in the absence of direct proof.
Podcast (federal-narrative-summaries): Play in new window | Download