Limits Reaffirmed on Domestic-Violence-Based Particular Social Groups and the Need for Particularized, Ongoing Risk for Asylum and CAT

Precedents and Authorities Cited

• Xue Hong Yang v. U.S. Department of Justice (2d Cir. 2005): Confirms that appellate review considers the IJ’s decision as modified/limited by the BIA’s rationale.
• Yanqin Weng v. Holder (2d Cir. 2009): Establishes standards of review—substantial evidence for facts and de novo for legal questions.
• 8 U.S.C. § 1252(b)(4)(B): Administrative factual findings are conclusive unless any reasonable adjudicator would be compelled to reach the contrary result.
• Paloka v. Holder (2d Cir. 2014); Matter of M-E-V-G- (BIA 2014); Matter of W-G-R- (BIA 2014): Framework for PSG cognizability—immutability, particularity, and social distinction; the group must exist independently of the persecution, and society (not just the persecutor) must perceive the group as distinct.
• Hernandez-Chacon v. Barr (2d Cir. 2020): Reinforces social distinction requirements; explores when resistance to gendered violence in a gang context may have a political dimension; distinguished here.
• Debique v. Garland (2d Cir. 2023): Abandonment doctrine—claims not meaningfully argued in opening briefs are deemed abandoned.
• Yueqing Zhang v. Gonzales (2d Cir. 2005); INS v. Elias-Zacarias (U.S. 1992): Political opinion nexus requires persecution on account of the applicant’s own political opinion; generalized political motives of persecutors are insufficient; conclusory briefing can forfeit arguments.
• Quituizaca v. Garland (2d Cir. 2022): “One central reason” causation standard applies to both asylum and withholding of removal.
• KC v. Garland (2d Cir. 2024): Threats alone do not necessarily amount to past persecution; supports the finding of no past persecution in this case.
• Ramsameachire v. Ashcroft (2d Cir. 2004); Jian Xing Huang v. U.S. INS (2d Cir. 2005): Defines objectively reasonable fear; speculative fears lacking record “solid support” are insufficient.
• Melgar de Torres v. Reno (2d Cir. 1999): Lack of harm to similarly situated family members undermines objective fear of future persecution.
• 8 C.F.R. § 1208.13(b)(1)(iii): Humanitarian asylum presupposes past persecution on a protected ground.
• Quintanilla-Mejia v. Garland (2d Cir. 2021); 8 C.F.R. § 1208.16(c)(2); § 1208.18(a)(7); Pierre v. Gonzales (2d Cir. 2007): CAT standards—more-likely-than-not risk of torture by or with government acquiescence; acquiescence requires prior awareness and a failure to intervene.
• Kyaw Zwar Tun v. U.S. INS (2d Cir. 2006): Torture is more severe than persecution; threats alone are generally insufficient.
• Mu Xiang Lin v. U.S. DOJ (2d Cir. 2005); Mu-Xing Wang v. Ashcroft (2d Cir. 2003): Generalized country conditions do not establish that someone in the petitioner’s particular circumstances is more likely than not to be tortured.

The court also noted that the BIA expressly disclaimed reliance on Attorney General decisions vacated while the appeal was pending, signaling adherence to the Paloka/M-E-V-G-/W-G-R- PSG framework rather than the briefly applicable A-B- line of cases later vacated by the Attorney General.

Legal Reasoning and Application

1) Domestic-Violence-Based PSG Claims: Cognizability and Nexus

The court agreed with the agency that the proposed groups—described as Salvadoran women who refuse control as “property” or who refuse to conform to rules imposed on them—were not cognizable because they were defined by the very harm alleged (control and forced conformity). Under Paloka and M-E-V-G-/W-G-R-, a PSG must exist independently of persecution; definitions that incorporate the persecutory conduct are circular and invalid. Additionally, the petitioner failed to marshal evidence that Salvadoran society perceives such women as a distinct social group. Evidence of legal reforms (e.g., specialized courts and police units in El Salvador addressing domestic violence) did not, without more, demonstrate that Salvadoran society recognizes the particular, refusal-based subset as socially distinct. This mirrors Hernandez-Chacon’s insistence on proof that society (not only persecutors) regards the group as distinct.

Beyond the merits, the court observed that the petitioner did not meaningfully challenge the BIA’s cognizability reasoning on appeal, triggering Debique’s abandonment doctrine as an independent ground to deny relief.

2) Political Opinion

To establish asylum or withholding based on political opinion, the harm must be on account of the applicant’s political opinion. The petitioner claimed her refusal to adopt a traditional gender role was a political opinion, but the argument was underdeveloped. Moreover, the record showed abuse by a former partner with no evidence he targeted her because of an actual or imputed political belief. The court distinguished Hernandez-Chacon, where resistance to gang rape in a context of gang domination potentially imbued the resistance with political meaning. Here, the abuser was not alleged to be a gang member and the relationship had ended a decade before departure; the case lacked the broader political context that could transform personal resistance into a political stance under Yueqing Zhang.

3) Gang-Based Claim: Past Persecution and Future Fear

The gang made threats and demanded the storage of drugs and weapons; however, there was no physical harm to the petitioner, her son, or her daughters. Relying on KC v. Garland, the court held that threats alone did not compel a finding of past persecution. Without past persecution, the petitioner had to show a well-founded fear of future persecution with an objectively reasonable basis. The court found the fear speculative: the events were more than seven years old, there was no indication of ongoing gang interest, and her daughters remained unharmed in El Salvador, which under Melgar de Torres undermines the objective reasonableness of her fear.

Because the lack of objectively reasonable fear was dispositive, the agency did not need to separately analyze the son’s family-based PSG claim—a procedural economy the court endorsed.

4) Humanitarian Asylum

Humanitarian asylum presupposes past persecution on a protected ground. Because the petitioner did not establish past persecution tied to a protected ground, she was categorically ineligible for humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1)(iii).

5) CAT Protection

The CAT claim failed for two reasons. First, it was not meaningfully argued, which is a familiar basis for denial under Yueqing Zhang’s briefing principles. Second, on the merits, the record did not show that future torture was more likely than not, nor that any such torture would occur with government acquiescence. The threats did not amount to past torture (Kyaw Zwar Tun), and generalized evidence of violence and corruption does not satisfy the particularized “more likely than not” standard (Mu Xiang Lin). Government acquiescence requires prior awareness and a breach of duty to intervene (8 C.F.R. § 1208.18(a)(7); Quintanilla-Mejia; Pierre), which the record did not establish.

Impact and Practical Implications

• Domestic-violence PSGs remain tightly cabined in the Second Circuit: Petitioners must avoid circular group definitions and must supply evidence that the specific group is socially distinct in the relevant society. Generalized proof of gender-based violence or governmental programs is not enough to show that the society recognizes a particular refusal-based subset as distinct.
• Political opinion claims in intimate-partner contexts face high hurdles: Absent evidence that the harm was motivated by actual or imputed political opinion, courts will treat the violence as private rather than political. Where gangs are involved, some contexts may support political-opinion framing, but this requires concrete linkages showing the resistance transcends personal self-protection and challenges power dynamics.
• Threats without harm often fail to meet the persecution threshold: KC v. Garland’s prominence in this order underscores that threats alone will rarely compel a finding of past persecution.
• Objective reasonableness is fact-intensive and time-sensitive: Long gaps without incidents, lack of ongoing interest by alleged persecutors, and safety of similarly situated relatives weigh heavily against future fear.
• CAT requires particularity and proof of acquiescence: General country conditions (e.g., criminality, corruption) are insufficient without a showing that a person in the petitioner’s specific circumstances is more likely than not to be tortured, and that officials would be aware and fail to intervene.
• Briefing discipline is critical: Failure to engage with the BIA’s core reasoning (e.g., PSG cognizability) or to substantively argue a claim (e.g., CAT) can result in abandonment and forfeiture on petition for review.