Second Circuit reaffirms: Gang defection is not “political opinion” and CAT relief demands individualized proof and government acquiescence

Second Circuit reaffirms: Gang defection is not “political opinion” and CAT relief demands individualized proof and government acquiescence

Introduction

In Ramirez Alvarado v. Bondi (No. 21-6603, Sept. 24, 2025), a nonprecedential summary order, the U.S. Court of Appeals for the Second Circuit denied a petition for review from a decision of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The petitioner, a native and citizen of El Salvador and a former member of MS-13, argued that he faced persecution on account of political opinion and a likelihood of torture by gangs and Salvadoran authorities if returned.

The case squarely presents three recurring issues in gang-related protection claims:

  • When, if ever, refusal to join or obey a gang amounts to persecution on account of “political opinion.”
  • What evidence suffices to prove CAT eligibility, including the “more likely than not” risk and the requirement of government acquiescence.
  • What it takes to secure a remand (functionally akin to reopening) based on post-hearing evidence—in particular, how to connect new harms to the applicant’s own risk.

Although the order is nonprecedential, it reinforces well-established Second Circuit principles in gang-based asylum and CAT jurisprudence and offers practical guidance on evidentiary burdens, preservation of arguments, and motion-to-remand standards.

Summary of the Opinion

The Second Circuit (Judges Sullivan, Lee, and Merriam) denied the petition and affirmed the BIA’s order. Reviewing the Immigration Judge’s decision as supplemented by the BIA, the court held:

  • Asylum/Withholding: Petitioner failed to establish the required nexus to a protected ground. Refusal to obey or leave MS-13, without more, does not constitute a political opinion, and the record lacked evidence that any harm was motivated by the petitioner’s actual or imputed political beliefs.
  • CAT: The record did not compel the conclusion that petitioner would more likely than not be tortured with government acquiescence. General country conditions and speculative inferences from family harms were insufficient; the IJ permissibly gave little weight to a corroborating statement and the BIA reasonably found the mother’s later murder unconnected on this record. The court declined to consider petitioner’s “de facto state actor” theory for MS-13 because it was unexhausted before the BIA.
  • Motion to Remand: The BIA did not abuse its discretion in denying remand based on the post-hearing evidence of petitioner’s mother’s murder, as the motive was reported as “unknown” and the new evidence would not likely alter the result.

Analysis

I. Precedents and authorities applied

  • Standards of review: The court reviewed factual findings for substantial evidence and legal questions de novo (Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018); 8 U.S.C. § 1252(b)(4)(B)). It reviewed the IJ’s decision as supplemented by the BIA (Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005)).
  • Asylum burden and nexus:
    • 8 C.F.R. § 1208.13(b) (well-founded fear; protected grounds); KC v. Garland, 108 F.4th 130 (2d Cir. 2024) (past persecution presumption and rebuttal).
    • Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010) (need “sufficiently strong nexus”).
    • Paloka v. Holder, 762 F.3d 191, 196–97 (2d Cir. 2014) (nexus turns on persecutor’s motive).
    • INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (applicant must provide some direct or circumstantial evidence of motive).
    • Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (political opinion requires disagreement with political systems/policies).
    • Zelaya-Moreno v. Wilkinson, 989 F.3d 190, 199–201 (2d Cir. 2021) (refusal to join or obey a gang is not itself a political opinion; “opposition to criminal elements” does not become political merely because the gang reacts).
    • Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (persecution attributable to government or private actors the government is unable or unwilling to control).
  • CAT standards and evidence:
    • 8 C.F.R. §§ 1208.16(c), 1208.18(a) (more-likely-than-not standard; torture; acquiescence).
    • Pierre v. Gonzales, 502 F.3d 109, 118 (2d Cir. 2007) (acquiescence can be shown where officials are aware and willfully blind to torture).
    • Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 2003) (general country evidence is insufficient; must show an individualized likelihood of torture).
    • Quintanilla-Mejia v. Garland, 3 F.4th 569, 592 (2d Cir. 2022) (conflicting evidence insufficient unless it compels a contrary conclusion under substantial evidence review).
    • Savchuck v. Mukasey, 518 F.3d 119, 123 (2d Cir. 2008) (applicant bears burden of proving the likelihood of each link in the chain of events leading to torture).
  • Evidentiary weight and agency consideration of the record:
    • Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2009) (presumption that IJ considered all evidence).
    • Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (no duty to parse every piece of evidence).
    • Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) and Likai Gao v. Barr, 968 F.3d 137, 149 (2d Cir. 2020) (deference to agency’s evaluation of weight of unsworn letters and unauthenticated documents).
  • Issue exhaustion: Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) (arguments not raised to the BIA are unexhausted and generally not considered by the court).
  • Motion to remand (new evidence): Li Yong Cao v. Dep’t of Justice, 421 F.3d 149, 151, 156 (2d Cir. 2005) (remand held to motion-to-reopen standards); Jian Hui Shao, 546 F.3d at 168 (new evidence must likely alter the outcome).

II. The court’s legal reasoning

A. Asylum and withholding: no “political opinion” nexus

The court held that the petitioner’s harm at the hands of MS-13—beatings for tardiness and for attempting to leave the gang—was not on account of a political opinion. The panel leaned on Zelaya-Moreno, which makes clear that merely refusing gang demands or resisting gang control does not transform the dispute into a political one. To qualify as a political opinion, the belief must concern the policies or practices of a government or a politically oriented entity, or involve a position toward actors that seek to influence or replace the government.

Here, the record reflected the gang’s dissatisfaction with petitioner’s noncompliance (“not obeying them”), not any hostility toward a politically expressive stance. Under Elias-Zacarias and Paloka, the focus is the persecutor’s motive; petitioner offered no direct or circumstantial evidence that MS-13 targeted him for political reasons, actual or imputed. Without nexus, asylum fails, and withholding (which requires an even higher probability of persecution) necessarily falls as well.

B. CAT: failure to establish individualized likelihood and acquiescence

CAT relief requires proof that it is more likely than not that the applicant would be subjected to torture, and that the torture would be inflicted by or with the acquiescence (including willful blindness) of a public official. Two strands of fear were presented:

  1. Fear of gangs (MS-13 and Barrio 18): The agency permissibly discounted the weight of an unsworn letter from petitioner’s sister describing a 2016 attack in the United States and found the later murder of petitioner’s mother insufficiently connected to petitioner (news articles reported the motive as “unknown”). Under Xiao Ji Chen and Y.C., the IJ’s weighing of unsworn or remote letters warrants deference. The BIA considered the new evidence on remand and reasonably concluded it did not establish either a gang link or likely government acquiescence. General country-condition reports indicating gangs punish defectors do not suffice under Mu-Xing Wang and Quintanilla-Mejia; CAT demands individualized risk tied to the applicant’s specific circumstances. The fact that petitioner’s sister remained in his hometown without threats further undercut the claim of targeted risk.
  2. Fear of Salvadoran authorities: Although petitioner alleged past police abuse when he was a known gang member, the agency found that his renunciation of gang activity reduced the likelihood of future police contact. Under Savchuck, petitioner bears the burden to show the likelihood of each link in the chain; the record, including general evidence that authorities sometimes target former gang members, did not compel the conclusion that petitioner himself would more likely than not be tortured by officials.

The court also declined to reach petitioner’s argument that MS-13 functions as a “de facto” state actor, obviating the need to prove acquiescence, because the theory was not exhausted before the BIA (Punin).

C. Motion to remand: new evidence not outcome-determinative

Treating the motion to remand under the standards for reopening, the BIA concluded that the post-hearing evidence—the 2021 murder of petitioner’s mother—did not likely change the outcome. The news reports indicated that the motive was unknown and the investigation ongoing, and petitioner offered no additional proof connecting the murder to him or to gangs. Under Li Yong Cao and Jian Hui Shao, the BIA’s conclusion was not arbitrary or capricious.

III. Impact and practical implications

While nonprecedential, this order is a strong reaffirmation of settled Second Circuit principles that shape litigation strategy in gang-related protection claims:

  • Political opinion claims tied to gang defection remain disfavored absent specific evidence of political motive. Applicants must do more than frame personal resistance to gang authority as “political”; they must point to evidence that the persecutor targeted them for beliefs about governance, policy, or political control. Evidence of statements, slogans, or actions that link the gang’s hostility to a political stance could change the analysis.
  • CAT requires individualized proof and acquiescence. General reports that gangs punish defectors or that abuses occur in the country are insufficient. Applicants should marshal individualized threats, recent and geographically specific patterns, expert reports, and incidents involving similarly situated persons. Evidence that public officials are aware of the risk and will not intervene—e.g., complaints ignored, collusion, or systemic obstruction—can be decisive.
  • Unsworn or remote letters are weak corroboration. Where practicable, practitioners should obtain sworn statements, contemporaneous documentation, or live testimony and be prepared to explain gaps, inconsistencies, or the inability to secure stronger forms of corroboration.
  • Family safety can undermine risk. The unthreatened presence of close family in the home community is frequently cited to rebut claims of individualized targeting. Applicants should explain why relatives’ safety does not reflect their own risk (e.g., the applicant is uniquely identified, relatives have moved or are in hiding, or threats were communicated specifically about the applicant).
  • Preserve theories at the BIA. Arguments such as “de facto state actor” must be squarely presented to the BIA, with supporting authority and record citations. Failure to exhaust can foreclose appellate review.
  • Remand/reopening turns on likely materiality. New evidence must do more than raise questions; it must likely alter the outcome. For post-decision crimes against relatives, applicants should provide concrete links to the applicant (e.g., threats referencing the applicant, suspects’ affiliation, police reports indicating motive, or patterns of retaliatory harm against defectors’ families).
  • Country-conditions dynamics require updating the record. Especially in fast-changing environments (such as El Salvador’s evolving security policies), practitioners should present up-to-date, probative evidence about how current conditions affect the applicant’s personal risk, including whether state crackdowns reduce gang capacity to retaliate or, conversely, increase risks for former gang members.

Complex concepts simplified

  • Protected ground (asylum/withholding): The reason you are targeted must be race, religion, nationality, political opinion, or membership in a particular social group. “Nexus” is the causal link between the harm and one of these grounds.
  • Political opinion (in this context): It concerns beliefs about government or political control. Disobeying a gang’s rules is not automatically political unless the gang targets you because of your political beliefs (actual or imputed).
  • Persecution vs. private crime: Persecution must be by the government or by private actors the government cannot or will not control. Ordinary criminal violence, without more, does not meet this definition.
  • CAT “more likely than not” and “acquiescence”: You must show a greater than 50% chance you will be tortured if returned, and that officials would carry it out, consent to it, or knowingly turn a blind eye despite a duty to protect.
  • Substantial evidence review: The court defers to the agency’s factual findings unless the record compels the opposite conclusion. Close calls are resolved in favor of the agency.
  • Abuse of discretion (remand/reopening): The BIA’s decision stands unless it is arbitrary, capricious, or contrary to law. New evidence must likely change the outcome.
  • Issue exhaustion: You must present your legal theories to the BIA; otherwise, the court of appeals will usually not consider them.
  • Chain-of-events burden (CAT): If your theory of torture requires multiple steps (e.g., identification at the airport → arrest → transfer → torture), you must show the likelihood of each step.

Conclusion

Ramirez Alvarado underscores three durable lessons in Second Circuit removal jurisprudence. First, gang resistance or defection, without evidence of a political motive attributed by the persecutor, does not satisfy the “political opinion” ground for asylum or withholding. Second, CAT relief requires granular, individualized proof that torture is more likely than not and that public officials would acquiesce—generalized country conditions and speculative links will not carry the burden. Third, new evidence prompting remand must plausibly change the result, and unexhausted theories cannot be revived on appeal.

Although this summary order lacks precedential effect, it aligns with and reinforces existing circuit law. For practitioners, it is a roadmap to the evidentiary and preservation pitfalls that often doom gang-based protection claims—and a reminder that success depends on tightly connecting motive, risk, and state involvement to the applicant’s unique circumstances, supported by robust, timely, and credible documentation.

Case Details

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

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