BIA Holds That Individuals Who Cooperate With Law Enforcement May Constitute A Valid Particular Social Group Under The INA If Their Cooperation Is Public In Nature, Particularly Where Testimony Was Given In Public Court Proceedings, And The Evidence In The Record Reflects That The Society In Question Recognizes And Provides Protection For Such Cooperation.
On January 28, 2021, the Board of Immigration Appeals (BIA or Board) dismissed Respondent’s appeal of a decision by the Immigration Judge (IJ) denying his application for withholding of removal under both INA §241(b)(3)(A) and the Convention Against Torture (CAT). A native and citizen of El Salvador, Respondent entered the U.S. without inspection (EWI) in 2005 and was placed into removal proceedings; he was ordered removed in absentia a year later and deported in 2009. After returning home, Respondent visited his mother-in-law and was informed that his wife’s cousin had been killed by MS-13 gang members after refusing to pay extortion money. Another relative warned him that MS-13 members were looking for him and his mother-in-law’s neighbor told him he was not safe in El Salvador. He soon re-entered the U.S. EWI and 10 years later, in 2019, was arrested for unlawful reentry after being removed.
Kept at a detention facility to await prosecution, Respondent explained his situation to his cellmate who he “did not realize” was a member of MS-13. A few days later, he was approached by another inmate and ordered to pay gang members at the facility $100 for protection. This detainee also told Respondent that those who complained about this were placed into protective custody, which he took as a warning that MS-13 knew who was in protective custody and thus whether anyone reported extortion. Respondent told this inmate he could not afford the payment but was informed he had no choice; he repeated this to his cellmate, who told him that if he did not pay, an MS-13 member would stab him. Fearing the detainee with whom he shared a cell was concealing weapons in their shared space, Respondent deposited $75.00 into an account and was not asked for more money.
At the end of May 2019, Respondent’s cellmate became upset with an officer at the facility and showed Respondent a concealed weapon; Respondent went to the warden, told him about the extortion and threat to the officer, and asked to be placed in protective custody. The warden told him the facility would be searched, placed Respondent into protective custody, and transferred him to another detention facility. When transferred back for a hearing on the unlawful reentry charge, a gang member shouted that he was a “rat” and threatened to kill him. Transferred back to the second facility, Respondent met with prosecutors and FBI agents to discuss his knowledge of gang activities at the first institution. He identified photos of those he knew or suspected to be gang members and was told he would not be sentenced until his situation was investigated. A week before his sentencing, gang members at the first facility were sentenced for various crimes and he believed their sentences were increased based on his discussions with prosecutors and the FBI.
Respondent had no further problems in the U.S. but feared that if he was removed to El Salvador, MS-13 members there would harm him as his cooperation with the government in the U.S. would be known to them. He testified that “the gang can find him anywhere in El Salvador and, although local police may protect him for a time, if no one targets him in that country, they will eventually leave him unprotected.”
In withholding-only proceedings, the IJ denied Respondent’s application for withholding, finding he had not shown a clear probability of persecution in El Salvador based on his membership in a valid PSG. An IJ also found his 2 proposed social groups, “prosecutorial witnesses” and “long-term residents of the United States” were not valid and that Respondent had failed to prove he would be tortured if deported home. This appeal followed.
The BIA began its analysis of the withholding decision by repeating INA §241(b)(3)(A), that to establish eligibility for withholding of removal, one must demonstrate that he experienced past persecution, or that there is a clear probability of future persecution in his home country on account of a protected ground. Agreeing with the IJ that Respondent met neither of these 2 tests, the decision found that the proposed PSG of “prosecutorial witnesses” was not valid “on this record.” Whether it is cognizable under the INA, though, was is a question of law to be reviewed de novo. The Board explained that to establish a valid PSG, Respondent “must demonstrate that his proposed group is ‘(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.’”
The Board next noted that the Fourth Circuit Court of Appeals, where this case arises, has not yet addressed the validity of a prosecutorial witness PSG and stated that the appeals court, in its 2011 Crespin-Valldares case, had found that a PSG composed of family members of those who actively oppose gangs in El Salvador by agreeing to act as prosecution witnesses was valid. The opinion went on to find that other circuit courts “have more directly addressed this issue and have recognized that cooperating with law enforcement in a public manner, particularly testifying in public proceedings, is sufficient to establish a valid social group if there is evidence that the society in question recognizes and provides protection for such conduct.” The Ninth Circuit’s 2013 en banc Henriquez-Rivas decision had recognized a PSG comprised of persons who testify against gang members in criminal proceedings, added the BIA, and had concluded that “group’s social distinction is confirmed by the fact that ‘the Salvadoran legislature enacted a special witness protection law in 2006 to protect people who testify against violent criminal elements, such as [MS-13], in Salvadoran court.’” The decision concluded that such cases stand for the proposition that the evidence must show that the society in question generally views witnesses as a distinct group before the group can be viewed as socially distinct. In other words, the focus have should be on how the relevant society views prosecutorial witnesses; the perspective or intent of the criminal against whom an applicant testified is thus only relevant “to the extent that it can be indicative of whether society views the group as distinct,” but a criminal’s perception is not, in and of itself, sufficient to engender social distinction.
The Board further noted that two Third Circuit decisions had addressed the validity of PSGs comprised of prosecution witnesses and held that in-court testimony renders a group of such witnesses sufficiently particular and socially distinct. Disagreeing with the Third Circuit that in-court testimony is indistinguishable from the public provided out of court assistance to law enforcement, the decision found that testimony in court represents “a more formal and meaningful degree of cooperation” than talking and providing assistance to the police and “is much more easily verifiable.” As such, held the BIA, a group comprised of prosecution witnesses is socially distinct if members of the group have publicly testified, and the record reflects that the society in question recognizes the group as uniquely vulnerable to harm by, for example, enacting legislation or other formal legal protections of testifying witnesses. The opinion concluded that “cooperation with law enforcement may satisfy the requirements of immutability, particularly, and social distinction and establish a valid particular social group under the Act if the cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in questions recognizes and provides protection for such cooperation.”
As to the application, the Board found that the IJ had correctly held the Respondent had not established that his proposed PSG of “prosecutorial witnesses” was valid on this record. His contention was that his assistance to law enforcement had become known to gang members because they referred to him as a “rat” and threatened to kill him; even if the gang knew he had provided information to the authorities, concluded the opinion, this “individual retaliation” does not qualify as persecution based on his membership in the proposed PSG. Further, the scope of the proposed group is unclear because “it appears to encompass not only prosecutorial witnesses in El Salvador and the United States but also witnesses to prosecutions in every legal forum throughout the world.” Because the characteristics defining Respondent’s PSG provide no clear benchmark for determining who falls within the group, it lacks particularity. As the proposed social group was not found to be sufficiently particular or socially distinct in Salvadoran society, the Board held that Respondent had not established a clear probability that he will suffer persecution in El Salvador on account of a valid PSG.
In applying for CAT relief, Respondent contended that MS-13 members in El Salvador would torture him, as they will know that he informed U.S. authorities about their activities here; the BIA found no clear error in the IJ’s finding that Respondent’s fellow detainees were unaware that he had reported them and it was insufficiently likely that they would tell gang members in El Salvador about him and that they would locate him there and torture him based on the report he made in the U.S. Additionally, Respondent did not show that a Salvadorean official or one acting in an official capacity would consent to or acquiesce in his torture by MS-13 members in El Salvador; country conditions evidence reflect that while gang violence and corruption are issues in that country, the Salvadorean Government “is taking significant action to address gang violence and corruption in that country.” The appeal was therefore dismissed. Matter of H-L-S-A-, 28 I&N Dec. 228 (BIA 2021).