The Board of Immigration Appeals, or BIA, recently issued a decision where it concluded that individuals who cooperate with law enforcement may constitute a valid particular social group, or PSG, but only if their cooperation is public in nature and the society in question recognizes and provides protection for such cooperation. Matter of H-L-S-A-, 28 I&N Dec. 228 (BIA 2021).

Summary of Facts

Mr. H-L-S-A-, the applicant, a Salvadoran national, was removed from the United States pursuant to an in absentia removal order. Upon returning to El Salvador, he learned that a family member was murdered for failure to pay extortion to gang members and was warned that MS-13 was looking for him. He fled El Salvador and reentered the United States a month later. Ten years after his reentry, he was arrested. While in detention, he began to be extorted and threatened by his cellmate, an MS-13 gang member. The cellmate warned him that if he complained to guards, he would be placed in protective custody, marking him as a snitch. The gang member at one point revealed to the applicant that he had a weapon. The applicant informed authorities, was placed in protective custody, and then transferred to another facility.

When Mr. H-L-S-A- was transferred back for his hearing, detainees called him a “rat” and threatened to kill him. He was then transferred back to the second facility, where he later met with federal prosecutors and agents to discuss his knowledge of gang activity and to identify suspected gang members from a photo line-up. As a result, the gang members were convicted of and sentenced for various crimes. Because Mr. H-L-S-A had a prior removal order, he was placed in withholding-only proceedings. He expressed a fear that the gang members in the United States would inform gang members in El Salvador of the applicant’s cooperation and that his life would be in danger if he returned. The immigration judge denied the application for withholding of removal and found that the proposed PSG “prosecutorial witnesses” was not cognizable under the law. The applicant appealed to the BIA.

BIA Analysis and Holding

An asylum or withholding of removal applicant may be eligible for relief under the Immigration and Nationality Act if he or she demonstrates a well-founded fear of persecution on account of his or her membership in a PSG. A PSG must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014).

In its analysis in H-L-S-A-, the BIA stated that victims of, or witnesses to crime, without more, cannot satisfy the particularity or social distinction requirements. The BIA likewise found that confidential informants lack social distinction due to their anonymity and their similarity in position to anyone who is merely “perceived to be a threat” to a cartel’s interests.

The BIA narrowly reviewed circuit law regarding witness PSGs and ultimately found that to satisfy both the social distinction and particularity requirements of the PSG analysis under M-E-V-G-, an applicant must satisfy two criteria: (1) they must formally or publicly cooperate with prosecution against their persecutors in their country of origin; and (2) that country must recognize the members of the proposed PSG through legislation or other form of witness protection. The BIA distinguished between circumstances in which an individual testifies against his or her persecutors in court proceedings in a country that has enacted a special witness protection law and those where a person has filed a police report in a country where no law protects those who report criminal activity. In excluding the latter PSG, the BIA suggested that a lack of general community knowledge of an applicant making a police report is a significant factor against an immigration judge finding social distinction. The BIA stated that any retaliation for cooperation that is not clearly public is merely individual retaliation, not persecution on account of a PSG.

Application to Facts

In Mr. H-L-S-A-’s withholding case, the BIA determined that the immigration judge had properly found that the applicant had not presented a valid PSG with “prosecutorial witnesses,” since it comprised individuals like the applicant who had not testified in any court proceeding. In particular, the BIA found that there was no public aspect to the applicant’s cooperation, including his participation in identifying suspected gang members in a photo line-up. The BIA found the actions gang members took to show they knew of his cooperation, such as calling him a “rat” and threatening to kill him, were merely individual retaliation, not persecution based on any PSG membership. The BIA further found that the PSG of “prosecutorial witnesses” was too broad, because it encompassed potentially confidential or “minimally cooperating” witnesses and could span multiple countries or jurisdictions, including El Salvador and the United States in this case, defeating a finding of particularity. Regarding social distinction, the BIA found that it was unclear from the record whether El Salvador recognizes witnesses such as the applicant for any form of protection, particularly where the witness’s cooperation did not lead to public testimony but only a photo line-up in the United States.

Conclusion

Regrettably, the BIA’s decision in H-L-S-A- marks a continuation of the BIA’s campaign to limit asylum eligibility for those fleeing persecution. Its holding risks eliminating asylum eligibility for many applicants who have genuine fears of return based on having taken public actions against their potential persecutors. These actions could have taken the form of reporting past persecution to law enforcement or otherwise cooperating with prosecutors in nonpublic ways. Practitioners must continue to remind immigration judges that PSGs are examined on a case-by-case basis. They should continue to argue for witness PSGs, teasing out any ways in which their clients’ cooperation might have public visibility or be verifiable with public records. Practitioners should look for any ways in which witnesses or victims are recognized in their clients’ countries of persecution, including through witness protection programs, victim assistance programs, victims’ compensation resources, offices of victim affairs, and similar resources.