Maria Velasquez v. Jefferson Sessions III , 866 F.3d 188 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1669
MARIA SUYAPA VELASQUEZ; D.A.E.V., minor child,
Petitioners,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: May 9, 2017 Decided: July 31, 2017
Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.
Petition denied by published opinion. Judge Agee wrote the opinion, in which Judge
Wilkinson and Judge Traxler concurred. Judge Wilkinson filed a separate concurring
opinion.
ARGUED: David John Kline, Alexandria, Virginia, for Petitioners. Gregory Darrell
Mack, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Bridget Cambria, Jacquelyn Kline, CAMBRIA & KLINE,
Reading, Pennsylvania, for Petitioners. Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Terri J. Scadron, Assistant Director, Civil Division, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
AGEE, Circuit Judge:
Maria Suyapa Velasquez, a citizen and native of Honduras, entered the United
States unlawfully in 2014 with her minor son D.A.E.V.; they were detained by U.S.
Customs and Border Patrol at the time of entry. The Government issued a Notice to
Appear, charging Velasquez and D.A.E.V. with removability under section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (the “INA”). See generally 8
U.S.C. § 1182(a)(7)(A)(i)(I). Velasquez conceded her removability, but applied for
asylum and withholding of removal, and attached D.A.E.V. as a rider on her petition. 1
An Immigration Judge (“IJ”) rejected her claims, and a single-member panel of the Board
of Immigration Appeals (the “BIA” or “Board”) dismissed her appeal. Velasquez now
petitions this Court for review. For the reasons that follow, we deny the petition.
I.
A.
We recount the facts set out in the record, which are not disputed.
Velasquez and D.A.E.V. fled Honduras because the mother of D.A.E.V.’s late
father, Maria Estrada, demanded custody of D.A.E.V. For nearly a decade, Estrada
implored Velasquez to turn D.A.E.V. over to her, but each time Estrada made such a
1
Velasquez also applied for relief under the United Nations Convention Against Torture.
An Immigration Judge denied that claim, and Velasquez does not pursue it in her petition for
review. Accordingly, she has abandoned that claim. See Karimi v. Holder, 715 F.3d 561, 565
n.2 (4th Cir. 2013).
2
request Velasquez denied it. In 2013, Estrada’s attempts to take custody of D.A.E.V.
became more forceful. On more than one occasion, Estrada kidnapped D.A.E.V. from
Velasquez’ home while Velasquez was away. Each time, D.A.E.V. escaped and walked
back home. Shortly before Velasquez fled Honduras, Estrada began threatening to kill
Velasquez if she did not relinquish custody of D.A.E.V. to her.
The escalating tension between Velasquez and Estrada prompted Velasquez to
relocate to the United States. In April 2014, Velasquez and D.A.E.V. unlawfully crossed
the United States’ border with Mexico and were detained shortly after. While detained,
Velasquez’ mother communicated to her that Estrada’s son Oscar (D.A.E.V.’s uncle)
murdered Velasquez’ sister. The murder, according to Velasquez’ mother, was a case of
mistaken identity: Oscar believed his victim was Velasquez.
B.
The Government issued Velasquez a Notice to Appear and charged her with being
removable under section 212 of the INA. Velasquez conceded her removability, but
argued she was a “refugee,” entitled to either asylum or withholding of removal under
sections 208 and 241 of the INA. See generally 8 U.S.C. § 1158(b)(1)(A) (setting
standard for asylum); id. § 1231(b)(3) (setting standard for withholding of removal); see
also generally id. § 1101(a)(42)(A) (defining “refugee”). Velasquez based her petition
for asylum and withholding of removal on alleged persecution “on account of” her
membership in a “particular social group,” which she contended was her nuclear family.
See 8 U.S.C. §§ 1101(a)(42). She claimed D.A.E.V. as a derivative beneficiary on her
3
petition for asylum under INA section 208(b)(3)(A). See generally 8 U.S.C.
§ 1158(b)(3)(A); 8 C.F.R. § 208.21. 2
Velasquez’ petition for asylum and withholding of removal was heard by an IJ,
who denied the petition on both bases. First, the IJ found that Velasquez was not entitled
to asylum because the dispute between Velasquez and Estrada was not “on account of”
Velasquez’ membership in her claimed particular social group, her nuclear family, but
rather was “an intra-family custody dispute over” D.A.E.V. A.R. 93. In particular, the IJ
held that Velasquez “failed to proffer evidence that the motivation for the conduct of the
Estrada family was to persecute [her] on account of her family membership.” A.R. 93. It
observed, for example, that Oscar had killed Velasquez’ sister “in the presence of [her]
mother, who remained untargeted and intact” and that Velasquez’ “four other children
[by a different father] remain in Honduras and are unharmed.” A.R. 93. Because the IJ
denied Velasquez’ application for asylum, it necessarily also denied D.A.E.V.’s
derivative claim. In addition, because withholding of removal employs a more stringent
standard than asylum, it held Velasquez could not meet her burden of proof as to
withholding of removal. Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004) (“[A]n
applicant who is ineligible for asylum is necessarily ineligible for withholding of
removal.”). Compare 8 U.S.C. § 1231(b)(3)(A) (providing that an alien cannot be
2
Velasquez did not, and could not, claim D.A.E.V. as a derivative beneficiary on her
withholding of removal petition. See Niang v. Gonzales, 492 F.3d 505, 513 (4th Cir. 2007)
(“[T]he statute permitting withholding of removal does not encompass derivative withholding
claims, that is, claims for withholding of removal based on persecution to another person;
instead, an alien seeking withholding of removal must established that they will suffer harm if
removed.”).
4
removed if she demonstrates that her “life or freedom would be threatened” because of
her “membership in a particular social group”), with 8 U.S.C. § 1158(b)(1) (stating that
an alien may be granted asylum if she can demonstrate that membership in a particular
social group “was or will be at least one central reason” for persecution in her native
country).
Velasquez timely appealed the IJ’s adverse decision to the Board, which dismissed
her appeal in a single-member decision. The Board adopted and supplemented the IJ’s
reasoning, stating: “The [IJ’s] finding that the criminal acts committed by [Velasquez’]
deceased husband’s family against [her] d[id] not constitute persecution on account of a
statutorily protected ground is not clearly erroneous inasmuch as the record supports the
finding that [Velasquez] was targeted due to a personal dispute over who should have
custody of [D.A.E.V.].” A.R. 437. The Board reiterated the IJ’s conclusion that “the
current facts involve a dispute over a personal matter within the family.” A.R. 437.
Velasquez timely petitioned this Court for review of the Board’s decision. We
have jurisdiction to consider her petition under section 242 of the INA. See generally
8 U.S.C. § 1252.
II.
“The decisions of the BIA concerning asylum eligibility or withholding of
removal are deemed conclusive if supported by reasonable, substantial and probative
evidence on the record considered as a whole.” Abdel-Rahman v. Gonzales, 493 F.3d
444, 448 (4th Cir. 2007) (internal quotation marks omitted). “Where[, as here,] the BIA
5
has adopted and supplemented an IJ’s decision, [the Court] review[s] both rulings and
accord[s] them appropriate deference.” Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir.
2010). We review the IJ’s findings of fact for substantial evidence; we must affirm
unless the record would compel “any reasonable adjudicator . . . to conclude to the
contrary.” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011). We review legal issues
de novo. Id.III.
In her petition for review, Velasquez 3 argues that the BIA erred as a matter of law
in concluding that she was not a “refugee” entitled to asylum in light of Estrada’s actions.
A.
Velasquez is entitled to asylum only if she is a “refugee,” as the INA defines that
term. See 8 U.S.C. § 1158(b)(1)(A). A “refugee” is an alien outside the country of her
nationality “who is unable or unwilling to return to, and is unable or unwilling to
avail . . . herself of the protection of, that country because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1101(a)(42)(A). The asylum-seeker
bears the burden of demonstrating her refugee status. Id. § 1158(b)(1)(B)(i).
To do so, Velasquez must demonstrate: (1) she “has a well-founded fear of
persecution”; (2) her fear arises “on account of” membership in a protected social group;
3
Because D.A.E.V. is a rider on Velasquez’ petition for asylum, we need only examine
her arguments.
6
and (3) the threat is made by an organization that the Honduran government “is unable or
unwilling to control.” Hernandez-Avalos v. Lynch, 784 F.3d 944, 948–49 (4th Cir. 2015).
The parties here address only the second prong: whether Estrada’s prosecution of
Velasquez arose “on account of” Velasquez’ membership in a particular social group, her
nuclear family. 4 We have recognized that an individual’s membership in her nuclear
family is a particular social group. Id. at 949 (“[M]embership in a nuclear family
qualifies as a protected ground for asylum purposes.”).
To satisfy the second prong, Velasquez must show that her membership in her
nuclear family “was or will be at least one central reason for” her persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i). She “need not show that h[er] family ties provide the central reason
or even a dominant central reason for h[er] persecution.” Hernandez-Avalos, 784 F.3d at
949 (internal quotation marks omitted). Rather, she “must demonstrate [only] that these
ties are more than an incidental, tangential, superficial, or subordinate reason for h[er]
persecution.” Id.
B.
Velasquez contends both the IJ and the Board erred in characterizing her dispute
as a personal one that it is not protected rather than one “on account of” her membership
in her nuclear family, which would be protected. “[A]liens with a well-founded fear of
4
The IJ did not address the third prong, but resolved the case under the protected social
group aspect. Velasquez never pursued the third prong before the IJ or BIA, and we, therefore,
lack jurisdiction to consider it at this juncture. See Cordova v. Holder, 759 F.3d 332, 336 n.2
(4th Cir. 2014) (noting that where a petitioner failed to press a claim before the BIA, we “lack
jurisdiction to review” it).
7
persecution supported by concrete facts are not eligible for asylum if those facts indicate
only that the alien fears retribution over purely personal matters . . . .” Huaman-Cornelio
v. Bd. of Immigration Appeals, 979 F.2d 995, 1000 (4th Cir. 1992); accord Jun Ying
Wang v. Gonzales, 445 F.3d 993, 998–99 (7th Cir. 2006) (stating “[t]his circuit and
others, however, have repeatedly held that a personal dispute cannot give rise to a claim
for asylum”; collecting cases). “[E]very threat that references a family member is [not]
made on account of family ties.” Hernandez-Avalos, 784 F.3d at 950 n.7.
Substantial evidence in the record supports the IJ’s factual conclusion that this
case is solely one of personal conflict among family members: Velasquez and her
mother-in-law. Most pointedly, Velasquez’ trial testimony proves this point: no one
besides Velasquez, her mother-in-law, and brother-in-law were involved. For example,
upon cross examination Velasquez testified as follows:
[Q:] Is anybody else outside of these two families involved in this
disagreement?
[A:] No
[Q:] Are you afraid of anybody else in Honduras taking your son, besides
this family?
[A:] No.
A.R. 165–66. Upon redirect examination, she confirmed that “[t]he disagreement has
been with her and me.” A.R. 167.
In that circumstance, “[e]vidence consistent with acts of private violence or that
merely shows that an individual has been the victim of criminal activity does not
constitute evidence of persecution on a statutorily protected ground.” Sanchez v. U.S.
8
Att’y General, 392 F.3d 434, 438 (11th Cir. 2004). We must view the facts “holistically,
with an eye to the full factual context.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015).
Viewed through that lens, Estrada’s threats were motivated not by Velasquez’ family
status but by a personal desire to obtain custody over D.A.E.V. Velasquez testified that
“[t]he disagreement [between myself and Estrada] is that [Estrada] does not want me to
have [D.A.E.V.]. She wants to have him.” A.R. 165.
Nevertheless, Velasquez contends that our decision in Hernandez-Avalos required
the IJ to find that the dispute between herself and Estrada was “on account of” her status
as a member of her nuclear family. We disagree. Were we to credit Velasquez’
understanding of Hernandez-Avalos, we would transform every intra-family dispute into
a case for asylum.
In Hernandez-Avalos we held that threats made by a gang and directed at the
petitioner were made “on account of” her membership in her nuclear family, where gang
members tried to have her persuade her son to join the gang. Five members of the El
Salvadorian gang “Mara 18” approached the petitioner and demanded that she allow her
son to join the gang. 784 F.3d at 947. When the petitioner refused, one of the gang
members “put a gun to her head and told her that if she opposed her son’s joining them”
that she would die. Id. Later, the gang members returned, demanded the petitioner let
her son join the gang, and gave her “one day to turn her son over to the gang or she
would be killed.” Id. On those facts, the BIA concluded that the petitioner had not been
persecuted “on account of” her family membership. We reversed and concluded that
“Mara 18 threatened [the petitioner] in order to recruit her son into their ranks, but they
9
also threatened [her], rather than another person, because of her family connection to her
son.” Id. at 950. Continuing, we noted the “threats that directed [the petitioner] to turn
her son over to the gang were meaningful only because of her maternal authority over her
son’s actions, and there is no evidence that she would have been selected as the recipient
of those threats absent that familial connection.” Id. at 950 n.7.
Although the familial relationships at issue in Hernandez-Avalos and the present
case involve a mother’s relationship with her son, this case is unlike Hernandez-Avalos in
critical respects. In Hernandez-Avalos, a non-familial third party persecuted the
petitioner because of her family association for the purpose of gang recruitment. In
contrast, Velasquez had a long-standing personal disagreement with Estrada over a solely
personal conflict regarding D.A.E.V. Estrada’s persecution of Velasquez was only
between the two of them—that is, merely incidental to Estrada’s desire to obtain custody
of D.A.E.V. 5 “[T]he asylum statute was not intended as a panacea for the numerous
personal altercations that invariably characterize economic and social relationships.”
Saldarriaga v. Gonzales, 402 F.3d 461, 467 (4th Cir. 2005). Because Estrada was
motivated out of her antipathy toward Velasquez and desire to obtain custody over
D.A.E.V., and not by Velasquez’ family status, Hernandez-Avalos does not provide the
rule here. The IJ and BIA appropriately concluded that Estrada’s motive was not
5
Nor, as Velasquez suggests, does Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014),
control. There, the BIA considered whether “married women in Guatemala who are unable to
leave their relationship” constituted a cognizable particular social group for asylum relief. Id. at
392. The legal validity of the social group identified by Velasquez is not at issue in this case.
Moreover, A-R-C-G does not bear on our nexus analysis because, there, the Government
“concede[d] . . . that the mistreatment [suffered by the alien] was, at for at least one central
reason, on account of her membership in a cognizable particular social group.” Id. at 395.
10
Velasquez’ familial status, but simply a personal conflict between two family members
seeking custody of the same family member. That factual conclusion is fully supported
by the record and not clearly erroneous. Abdel-Rahman, 493 F.3d at 448 (“The
decision[] of the BIA concerning asylum . . . [is] deemed conclusive if supported by
reasonable, substantial and probative evidence on the record considered as a whole.”
(internal quotation marks omitted)). Thus, substantial evidence supports the IJ’s
conclusion that Velasquez simply failed to show that family status was a reason, central
or otherwise, for her difficulties. See Hernandez-Avalos, 784 F.3d at 949.
For similar reasons, this case also is unlike the recent decision in Cruz v. Sessions,
853 F.3d 122 (4th Cir. 2017). In Cruz, the petitioner, a Honduran national, applied for
asylum based on her membership in a “particular social group,” namely the “nuclear
family of [her husband,] Johnny Martinez.” Id. at 124–25. Martinez had been killed by
his boss, who worked closely with organized crime groups, ostensibly after Martinez had
discovered his boss’ illicit business and tried to go to authorities. See id. After Martinez’
death, Cruz confronted Martinez’ boss, who repeatedly threatened her and stationed his
criminal associates outside of Cruz’ home. See id. at 125–26. Cruz fled to the United
States, where she was detained and issued a Notice to Appear. When Cruz later claimed
asylum, an IJ denied her petition, observing that her dispute with Martinez’ boss was a
dispute with a “private actor for personal reasons.” Id. at 126–27. We reversed, relying
on Hernandez-Avalos and concluding that the IJ, and subsequently the BIA, applied an
“excessively narrow interpretation of the evidence relevant to the statutory nexus
requirement” and that Cruz had satisfied her burden of proof by demonstrating that she
11
more likely than not was targeted “because of [her] relationship with her husband.” Id. at
129–30.
Velasquez’ case is inapposite. The dispute between Velasquez and Estrada was a
private and purely personal dispute between grandmother and mother regarding D.A.E.V.
Velasquez specifically testified to that fact. Unlike Cruz or Hernandez-Avalos, this case
does not involve outside or non-familial actors engaged in persecution for non-personal
reasons, such as gang recruitment or revenge. Rather, this case concerns solely a custody
dispute between two relatives of the same child and necessarily invokes the type of
personal dispute falling outside the scope of asylum protection. See Huaman-Cornelio,
979 F.2d at 1000; Jun Ying Wang, 445 F.3d at 998–99.
For all these reasons, Velasquez did not meet her burden of showing persecution
“on account of” a protected ground.
C.
Velasquez spends considerable time in her petition for review trying to shift the
factual basis of her claim from that presented to the IJ and BIA in order to align more to
the facts of Hernandez-Avalos. She speculates without proof that Estrada’s persecution
was part of a larger scheme orchestrated by the gang Mara Salvatrucha, commonly
known in the United States as MS-13. According to Velasquez, both Estrada and Oscar
have some connection to MS-13, and Estrada’s effort to take custody over D.A.E.V.
really was an effort to recruit him into the gang. As evidence of this recent theory,
Velasquez contends that Oscar, who killed her sister, is an active member of MS-13; that
after the murder, Oscar spray-painted a death threat on her home and signed it “M.S.,”
12
A.R. 150; and that Estrada “g[a]ve[] [MS-13 members] food,” A.R. 419. But none of
these “facts” establishes a relevant nexus to a third party persecuting the victim on
account of their particular social group. In particular, there is no evidence in the record
that Estrada’s interest in her grandson had any connection of any kind to gang
recruitment or any gang involvement. Instead, it is a late conjured theory devoid of
record evidence of any connection to a particular social group.
As an initial matter, it is not clear that we have jurisdiction over Velasquez’ claim
insofar as she asserts that MS-13, not Estrada, was the source of her persecution. “[A]n
alien who does not raise a particular claim before the [Board] fails to exhaust [her]
administrative remedies as to that claim,” leaving the federal courts without jurisdiction
to consider it. Tiscareno-Garcia v. Holder, 780 F.3d 205, 210 (4th Cir. 2015). The
record contains only passing references to gangs generally, and MS-13 particularly. In
Velasquez’ application for asylum, she mentions as a matter-of-fact “Oscar is often with
members of the MS gang.” A.R. 250. Yet she offered nothing else to tie Estrada’s
actions to a gang, and stated that she did not “know if [Estrada] is associated with the
MS.” Id. None of her arguments to the IJ or the Board asserted that she was being
persecuted by a gang or that affected her or D.A.E.V. in any way.
But even if we do have jurisdiction, substantial evidence supports the IJ’s
conclusion, affirmed by the Board, that Velasquez was persecuted by Estrada, not by MS-
13, and that this persecution was solely personal. Velasquez’ petition confirms the
deeply personal nature of her conflict with Estrada, attributing Estrada’s threats to the
fact that that she “never liked [Velasquez] very much,” not to a gang-related motive.
13
A.R. 249. Again, when asked directly about the source of her persecution before the IJ,
Velasquez explicitly confirmed that no one “outside of [the Velasquez and Estrada]
families [were] involved in this disagreement.” A.R. 165. Accordingly, we hold that the
IJ’s conclusion, adopted by the Board, that the dispute between Velasquez and Estrada
was solely a personal dispute was supported by substantial evidence.
****
In sum, the IJ did not err in concluding that the dispute between Velasquez and
Estrada was not “on account of” Velasquez’ membership in a particular social group, but
was simply a personal dispute. As such, Velasquez failed to meet her burden of proof as
to an essential element of her asylum claim: that her persecution arose “on account of
membership in a particular social group.” Therefore, we deny Velasquez’ petition for
review. 6
IV.
Based on the foregoing, Velasquez’ petition for review of the Board’s decision
dismissing her petition for asylum and withholding of removal is denied.
PETITION DENIED
6
Velasquez also applied for withholding of removal under section 241(b)(3) of the INA.
See generally 8 U.S.C. § 1231(b)(3). That statute provides that the Attorney General cannot
“remove an alien to a country if [he] decides that the alien’s life or freedom would be threatened
in that country because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.” Id. § 1231(b)(3)(A). “[A]n applicant who is ineligible for asylum is
necessarily ineligible for withholding of removal.” Camara, 378 F.3d at 367. Given the above
discussion, Velasquez necessarily did not meet the higher burden for withholding of removal.
Accordingly, we also deny Velasquez’ petition for withholding of removal.
14
WILKINSON, Circuit Judge, concurring:
I am happy to concur in Judge Agee’s fine opinion for the court. I write briefly to
emphasize the need for some outer boundary in the interpretation of the “particular social
group” prong of the asylum statute. 8 U.S.C § 1101(a)(42)(A).
In Matter of L-E-A-, the Board of Immigration Appeals (“BIA”) emphasized that
“the fact that a persecutor has threatened an applicant and members of his family does not
necessarily mean that the threats were motivated by family ties.” 27 I. & N. Dec. 40, 45
(BIA 2017). “[N]exus is not established simply because a particular social group of
family members exists and the family members experience harm.” Id. Moreover, “the
fact that a persecutor targets a family member simply as a means to an end is not, by
itself, sufficient to establish a claim, especially if the end is not connected to another
protected ground.” Id. If inflicting harm on family members is not an independent end,
perpetuated “because of an animus against the family,” then we must look to “the reasons
that generate the dispute.” Id. at 44–45. “[T]he scope of the motive inquiry necessarily
encompasses the context in which a family member is identified for harm and how that
relates to the interest in the applicant.” Id. at 46 n.5.
The analysis of “particular social group” in the asylum statute is at risk of lacking
rigor. I understand that many of the alleged persecutions present heart-rending situations,
and I respect the impulse, shared by us all, simply to do something to help someone out.
The protected characteristics, 8 U.S.C § 1101(a)(42)(A), however, are for the most part
precisely defined. Had Congress intended “membership in a particular social group” to be
some omnibus catch-all, it would be odd to find its placement not at the end of a series,
15
but sandwiched between more sharply etched criteria. I fear judicial interpretations of this
statute may outstrip anything Congress intended.
To extend the concept of persecution on account of a “particular social group” to
the kind of intra-familial disputes at issue here would, as Judge Agee notes, render the
asylum statute unrecognizable. The concept of a “particular social group” must be
understood in the context of the other statutory grounds for asylum protection. Matter of
M-E-V-G-, 26 I. & N. Dec. at 230 (“Consistent with the interpretive canon ‘ejusdem
generis,’ the proper interpretation of the phrase can only be achieved when it is compared
with the other enumerated grounds of persecution (race, religion, nationality, and political
opinion), and when it is considered within the overall framework of refugee protection.”).
None of the other statutory grounds for asylum creates protected classes of only two or
three people. To the contrary, asylum was intended to protect specific segments of the
population who are marginalized or subjected to social stigma and prejudice. Families, of
course, may suffer hardships, but they are less likely candidates for the kind of targeted
racial, ethnic, religious, and political prejudice with which the asylum statute is chiefly
concerned.
Moreover, particularity requires “a clear benchmark for determining who falls
within the group,” Matter of M-E-V-G-, 26 I. & N. Dec. at 239. In other words, a
proposed social group must be “described in sufficiently distinct terms that it would be
recognized, in the society in question, as a discrete class of persons.” Matter of W-G-R-,
26 I. & N. Dec. at 214 (internal quotation marks omitted). Particular social groups cannot
16
be “amorphous, overbroad, diffuse, or subjective.” Matter of M-E-V-G-, 26 I. & N. Dec.
at 238.
Victims of general extortion and domestic violence that is not unique to any
family but rather that “affects all segments of the population” are nonetheless seizing
upon the “particular social group” criterion in asylum applications. Matter of S-E-G-, 24
I. & N. Dec. 579, 587 (BIA 2008). The example of gang violence is illustrative.
Petitioners are often not “exposed to more violence or human rights violations than other
segments of society,” and “not in a substantially different situation from anyone who has
crossed the gang, or who is perceived to be a threat to the gang’s interests.” Id. The BIA
has previously explained that “victims of gang violence come from all segments of
society, and it is difficult to conclude that any ‘group,’ as actually perceived by the
criminal gangs, is much narrower than the general population.” Id. at 588; see Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 250 (BIA 2014) (“Against the backdrop of widespread
gang violence affecting vast segments of the country's population, the applicant in Matter
of S-E-G- could not establish that he had been targeted on a protected basis. Although he
was subjected to one of the many different criminal activities that the gang used to
sustain its criminal enterprise, he did not demonstrate that he was more likely to be
persecuted by the gang on account of a protected ground than was any other member of
the society.” (citations omitted)). It is difficult to establish the necessary causation when
so many persons outside the particular social group experience identical persecution for
the same overarching reasons. The pervasive nature of the persecution threatened in these
cases suggests that family membership is often not a central reason for the threats
17
received, but rather is secondary to a grander pattern of criminal extortion that pervades
petitioners’ societies.
The asylum statute is not a general hardship statute. It was not at all drafted in that
way. It is crucial to remember that the statute is but one provision in a larger web of
immigration laws designed to address individuals in many different circumstances. To
expand that statute beyond its obviously intended focus is to distort the entire
immigration framework. There is often no evidence that “persecutors had any animus
against the family or the [applicant] based on their biological ties, historical status, or
other features unique to that family unit.” Matter of L-E-A-, 27 I. & N. Dec. at 47.
Persecutors are seeking money, power, and control. Alleged persecution on account of
family membership, distressing though it may be, is often nothing more than a
manifestation of the general extortion and gang violence that plagues El Salvador. I again
do not attempt to minimize the magnitude of human suffering that these conditions cause.
But to broaden the statutory grounds for relief from those conditions must by definition
be a congressional rather than a judicial enterprise.
18