No PSG Without Societal Recognition: Sixth Circuit Reaffirms Social-Distinction Requirement and Rejects Circular Gang-Extortion Groups in Aviles‑Solano v. Bondi

No PSG Without Societal Recognition: Sixth Circuit Reaffirms Social-Distinction Requirement and Rejects Circular Gang-Extortion Groups in Aviles‑Solano v. Bondi

Introduction

In Deysi de Jesus Aviles‑Solano v. Pamela Bondi, No. 24-3610 (6th Cir. Mar. 26, 2025) (not recommended for publication), the Sixth Circuit denied a petition for review from the Board of Immigration Appeals (BIA), affirming the denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petitioner, a Salvadoran mother, fled with her children after threats and extortion by the Barrio 18 gang. Her claims rested on asserted membership in three “particular social groups” (PSGs) tied to gang extortion, recruitment refusal, and cross-gang territory schooling.

The key issue was PSG cognizability: whether the groups posited meet the tri-part test of immutability, social distinction, and particularity. The Sixth Circuit held that two of the proposed groups failed both social distinction and particularity, and a third—although found to meet immutability and particularity—failed on social distinction due to lack of record evidence. The opinion reiterates that social distinction requires societal recognition beyond the persecutors’ awareness and cautions against circular PSG definitions based on the harm suffered.

Parties:

  • Petitioners: Deysi de Jesus Aviles‑Solano and two of her children as derivative beneficiaries (Jimmy Adonay Merino‑Aviles; Carlos Ernesto Merino‑Aviles).
  • Respondent: The Attorney General.

Summary of the Opinion

The court reviewed the BIA’s final decision (which adopted and affirmed the immigration judge’s findings). Applying de novo review to legal questions and substantial evidence review to factual determinations, the panel concluded:

  • None of the three proposed PSGs was cognizable. Two failed both social distinction and particularity; the third was particular and immutable but failed social distinction on this record.
  • Because the PSGs were not cognizable, the court did not reach the “nexus” argument (including mixed-motive) between the persecution and group membership.
  • CAT protection was not considered because any challenge was waived before the BIA and abandoned on appeal.

Result: Petition for review denied.

Analysis

Precedents Cited and How They Shaped the Outcome

  • Vasquez‑Rivera v. Garland, 96 F.4th 903 (6th Cir. 2024) — Set out the asylum elements and reinforced that PSG cognizability is a legal question while its building blocks may involve factual determinations. It also provided a recent benchmark rejecting a broad group (“family members of persons targeted for gang recruitment”) for lack of particularity and social distinction. The court followed that approach to reject petitioner’s “mothers of children who refuse to join” PSG.
  • Umana‑Ramos v. Holder, 724 F.3d 667 (6th Cir. 2013) — Reaffirmed the three PSG elements: immutability, social distinction, and particularity. It rejected groups defined by refusal to join gangs as amorphous and lacking social distinction. The court here relied on Umana‑Ramos to reject both the extortion-refusal PSG as circular and the “mothers of refusers” group as overbroad and not socially distinct.
  • Urbina‑Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) — Recognized a PSG of former gang members based on immutability and social recognition in the record (supported by expert testimony). The court contrasted petitioner’s record, which lacked comparable evidence to show social distinction for the asserted PSGs.
  • Zometa‑Orellana v. Garland, 19 F.4th 970 (6th Cir. 2021) — Cited for the three PSG requirements and the framework the panel applies.
  • Turcios‑Flores v. Garland, 67 F.4th 347 (6th Cir. 2023) — Demonstrated immutability where an attribute is fundamental to identity (e.g., rural landownership), used here to explain how immutability can be established without circularity. The panel leveraged this concept to credit immutability for the third PSG (home/school locations straddling rival gang territory).
  • Mazariegos‑Rodas v. Garland, 122 F.4th 655 (6th Cir. 2024) — Emphasized case-specific, record-driven PSG determinations. The court’s analysis—especially regarding the third PSG—echoes that guidance by noting a better record in a future case could establish social distinction.
  • Matter of M‑E‑V‑G‑, 26 I. & N. Dec. 227 (BIA 2014) — Identified acceptable evidence to prove PSG cognizability (country reports, expert testimony, press accounts, etc.). The court faulted the record here for lacking such proof of broad societal recognition for the third PSG.
  • Al‑Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009) — Provided definitions for social visibility (now commonly called social distinction) and particularity. The court used these standards to evaluate each PSG.
  • Zaldana Menijar v. Lynch, 812 F.3d 491 (6th Cir. 2015) — Clarified that social distinction cannot be shown merely by a persecutor’s ability to identify the group; it must be recognized by society generally. The court explicitly relied on this principle to reject petitioner’s argument that gangs’ information networks suffice.
  • Perez v. Garland, No. 20‑4172, 2021 WL 4988351 (6th Cir. Oct. 27, 2021) (unpublished) — Rejected a youth-based gang-opposition group as too vague/broad for particularity. Applied here to show why the “mothers of refusers” group is amorphous.
  • INS v. Stevic, 467 U.S. 407 (1984) — Cited for the higher “clear probability” standard for withholding of removal. Because asylum failed at the PSG threshold, withholding necessarily failed as well.
  • Island Creek Coal Co. v. Wilkerson, 910 F.3d 254 (6th Cir. 2018) — Cited for abandonment of issues not pressed on appeal, explaining why CAT relief was not considered.
  • Lopez Sosa v. Barr, 780 F. App’x 307 (6th Cir. 2019) — Reinforced that mere refusal to join gangs does not constitute a cognizable PSG.

Legal Reasoning

The court’s analysis proceeds in stages, beginning with the threshold requirement that asylum claims premised on “membership in a particular social group” must identify a cognizable PSG. The panel reviews:

  • Standards of review — Legal issues de novo; factual findings for substantial evidence. Cognizability of a PSG is a legal question, but its constituent elements may involve fact-bound inquiries (e.g., social distinction in the relevant society).
  • Three-part PSG test — A cognizable group must satisfy:
    • Common, immutable characteristic (not defined by the harm itself);
    • Social distinction (recognized in the relevant society, not just by persecutors);
    • Particularity (discrete, defined boundaries—not amorphous or overly broad).

Applying that framework, the court evaluated each proposed PSG:

  • 1) “El Salvadoran citizens who refuse to pay the Barrio 18 gang’s extortion demand.”
    • Immutability: The defining characteristic is refusal to pay under threat—this is circular because it uses the fact of persecution to define the group. Immutability requires more than an inability to change a past act of refusal; it cannot be the persecution itself.
    • Social distinction: The record lacks evidence that Salvadoran society recognizes “those who refuse Barrio 18 extortion” as a distinct class. The court cited Umana‑Ramos in rejecting such formulations.
    • Holding: Not cognizable because of circularity and lack of social distinction.
  • 2) “El Salvadoran citizens who are the mothers of children who refuse to join the Barrio 18 gang.”
    • Particularity: Too amorphous and potentially sweeping—could encompass a very large set depending on how “refusal” is defined. The Sixth Circuit’s Vasquez‑Rivera and Perez cases reject similarly broad formulations tied to gang recruitment dynamics.
    • Social distinction: No record evidence shows Salvadoran society regards “mothers of children who refuse to join” as a distinct group.
    • Holding: Not cognizable for lack of particularity and social distinction.
  • 3) “El Salvadoran citizens who live in Barrio 18 gang territory and have children that attend school in the MS‑13 gang territory.”
    • Immutability: Credited on this record. Where one lives and where children attend school are characteristics the court deemed individuals should not be required to change to avoid persecution (citing the fundamental-identity logic exemplified in Turcios‑Flores).
    • Particularity: Also credited. The group is described with sufficient precision—those who cross rival gang territory lines for schooling.
    • Social distinction: Not satisfied on this record. The court emphasized the absence of evidence (e.g., expert testimony, country reports, press accounts) showing society generally recognizes such cross-territory families/students as a distinct class.
    • Notable guidance: The panel explicitly noted that “a future asylum applicant might provide record evidence” establishing social distinction for this group. Thus, while not cognizable here, the court left the door open for similar PSGs supported by robust, society-wide recognition evidence.

The panel rejected petitioner’s argument that gangs’ large presence and communication networks prove social distinction, citing Zaldana Menijar: social distinction is measured by recognition in the broader society, not just by persecutors’ awareness.

Because none of the PSGs was cognizable, the court did not reach the “nexus” element (including mixed-motive), nor did it evaluate past persecution or internal relocation in a dispositive way. Withholding of removal necessarily failed for the same reason (and in any event would require a higher “clear probability” showing). The CAT claim was deemed abandoned.

Impact

This opinion (though unpublished) carries practical importance for practitioners litigating gang-based asylum claims in the Sixth Circuit:

  • Reaffirmation of social distinction as societal recognition — Evidence that gangs know or track noncompliant individuals is insufficient. Counsel must marshal materials showing society at large recognizes the group as distinct (e.g., expert testimony explaining social categorizations; country reports identifying and describing the group; press coverage; community practices or labels).
  • Circularity caution — PSGs defined by refusing extortion or recruitment are perilous when the common trait is the harm itself (extortion/threats/refusal under duress). Courts will characterize such groups as circular and reject them at the immutability step.
  • A pathway for “cross-gang-zone” PSGs — The court’s acknowledgment that “live in Barrio 18 territory and attend school in MS‑13 territory” satisfies immutability and particularity is a concrete blueprint. Future claimants may succeed if they develop record evidence proving that Salvadoran society recognizes such persons as a discrete class.
  • Record building is decisive — Matter of M‑E‑V‑G‑ supplies the evidentiary menu. Given the court’s case-by-case approach (Mazariegos‑Rodas), robust records can change outcomes even where earlier cases have failed.
  • Derivative asylum and strategy — Because two of petitioner’s children were derivative beneficiaries, the PSG failure for the principal foreclosed their asylum as well. Practitioners should consider whether any child has an independent claim or distinct PSG supported by the record.
  • Withholding and CAT considerations — When asylum falls at the PSG threshold, withholding will generally fail too, and CAT requires separate proof of likely torture with government involvement or acquiescence. Preservation and development of CAT arguments are critical; waiver or abandonment will foreclose review.

Although not precedential, the opinion consolidates recent Sixth Circuit doctrine on PSG cognizability in gang-related claims and provides targeted guidance for how a narrowly framed, non-circular PSG might be sustained with the right evidentiary support.

Complex Concepts Simplified

  • Particular Social Group (PSG) — A protected ground for asylum claims. To qualify, the group must have:
    • Immutability: A common trait that cannot or should not be changed because it is fundamental to identity (and is not defined by being persecuted);
    • Social distinction: Recognized by society at large as a distinct group;
    • Particularity: Defined with clear boundaries so it is not vague or too broad.
  • Circular PSG — A group defined by the persecution itself (e.g., “people who are extorted by X gang”). Such definitions generally fail because the defining characteristic is the harm experienced.
  • Social distinction vs. persecutor awareness — It is not enough that the persecutor can identify group members. The society in the home country must perceive the group as a distinct class.
  • Particularity — The group’s boundaries must be precise. Labels that could sweep in many people or that change constantly (e.g., all youths who refuse gangs) usually fail.
  • Nexus — The harm must be “on account of” the protected ground (e.g., PSG). If the PSG is not cognizable, courts typically do not reach nexus. When reached, a “mixed-motive” analysis can apply—membership must be at least one central reason for the persecution.
  • Withholding of removal — Similar to asylum but with a higher burden: the noncitizen must show a “clear probability” of persecution if returned.
  • CAT protection — Requires showing it is more likely than not that the individual would be tortured by or with the acquiescence of the government. It is separate from asylum/withholding and must be argued and preserved.
  • Standards of review — Legal issues are reviewed de novo; factual findings under the substantial evidence standard (upheld unless any reasonable adjudicator would be compelled to reach the opposite conclusion).
  • Derivative beneficiaries — Certain family members (e.g., minor children) may receive asylum derivatively if the principal applicant is granted relief; if the principal is denied, derivates are typically denied as well unless they have independent claims.

Conclusion

Aviles‑Solano reinforces that PSG claims rooted in gang dynamics face exacting scrutiny in the Sixth Circuit. The court rejected a PSG defined by refusal to pay extortion as circular, and another defined by a parental relationship to gang-refusing children as overbroad and not socially distinct. Importantly, the panel signaled that a narrower, non-circular group—families who must cross rival gang territories between home and school—can satisfy immutability and particularity, but only succeeds if the record establishes society-wide recognition.

The decision offers a roadmap: avoid circular definitions; tailor the group with clear boundaries; and, above all, build a record that demonstrates societal recognition through expert testimony, country conditions, and corroborating sources. While unpublished and non-precedential, this opinion harmonizes with the Sixth Circuit’s PSG jurisprudence and provides practical guidance for future asylum claims confronting the intersection of gang control, geography, and daily life in El Salvador.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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