51 F.4th 424
1st Cir.2022Background
- Rommel Alexander Chavez, a Salvadoran national, lived in the U.S. from 1997–2012 (except two months in 2012) and was removed to El Salvador in 2012; he later sought withholding of removal and CAT protection in 2020.
- Credible testimony: as a youth he was shot by police, was repeatedly stopped/abused, has a tattoo associated with rival gang Mara 18, and was threatened and beaten by MS‑13 members (including a credible death threat tied to reporting a robbery).
- After return to El Salvador (2012) he received a gunshot-fired-at‑house incident and other neighborhood murders by MS‑13, and left after MS‑13 sought to “check” his tattoos.
- IJ denied withholding and CAT relief; BIA affirmed; Chavez petitioned the First Circuit.
- First Circuit: accepts credibility findings, affirms BIA on the political‑opinion and CAT issues, but rejects the BIA’s categorical rule barring recognition of persons incorrectly perceived as gang members as a particular social group and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MS‑13 perceived Chavez to hold an actual or imputed anti‑MS‑13 political opinion | Chavez: his conduct (erasing graffiti, admonishing gang members, reporting crimes) shows anti‑gang political opinion and MS‑13 perceived it | Gov't: MS‑13 perceived Chavez as a rival‑gang member (not a political actor) and attacked for rivalry/personal reasons | Court: Substantial evidence supports BIA/IJ finding that MS‑13 perceived him as a rival gang member, so political‑opinion claim fails |
| Whether Salvadorans incorrectly perceived to be gang members can constitute a "particular social group" (PSG) | Chavez: persons incorrectly perceived as gang members can be a cognizable PSG | Gov't: relied on Matter of E‑A‑G‑ to argue a categorical bar (actual gang membership and imputed membership cannot form PSGs) | Court: Rejects Matter of E‑A‑G‑’s categorical bar as impermissible; remands for the BIA to assess Chavez’s proposed PSG on the merits |
| Whether Chavez is entitled to CAT protection because Salvadoran officials would acquiesce or be willfully blind to torture by gangs | Chavez: country conditions, expert testimony, reports and quarantine procedures create a more‑likely‑than‑not risk and show official acquiescence/willful blindness | Gov't: record shows prosecution and anti‑gang/state efforts; no clear evidence officials would acquiesce or willfully blind | Court: BIA/IJ reasonably credited countervailing evidence of government action; no misapplication of willful blindness; CAT denial upheld |
| Whether past police conduct constituted torture and whether future police encounters (e.g., checkpoints/quarantine) make torture more likely than not | Chavez: shooting as teenager and pandemic quarantine/checkpoint practices show past torture and high future risk (tattoo detection) | Gov't: long lapse without police interactions and evidence of state efforts lower likelihood of future torture | Court: Even if the juvenile shooting were torture, the long absence of subsequent incidents and other evidence do not compel finding of future torture; petitioner failed to meet burden |
Key Cases Cited
- Elias‑Zacarias v. INS, 502 U.S. 478 (statutory standard for withholding review) (agency factual findings reviewed for substantial evidence)
- Cantarero v. Holder, 734 F.3d 82 (1st Cir. 2013) (discussing BIA treatment of gang/former‑gang claims)
- Paiz‑Morales v. Lynch, 795 F.3d 238 (1st Cir. 2015) (three‑part test for cognizable particular social group)
- Perez‑Trujillo v. Garland, 3 F.4th 10 (1st Cir. 2021) (acquiescence includes willful blindness; standard for CAT acquiescence)
- Marín‑Portillo v. Lynch, 834 F.3d 99 (1st Cir. 2016) (personal‑revenge or rival‑gang disputes are not motivated by an enumerated statutory ground)
- Vasquez‑Rodriguez v. Garland, 7 F.4th 888 (9th Cir. 2021) (rejecting Matter of E‑A‑G‑’s categorical bar to recognition of those incorrectly perceived as gang members)