990 F.3d 1173
9th Cir.2021Background
- Villegas Sanchez, a Salvadoran national, attempted entry to the U.S. in October 2015, expressed credible fear, and applied for asylum, withholding of removal, and CAT relief; IJ found her credible.
- She testified that a long-time neighbor, "Cabezon," whom she believed was an MS-13 member, repeatedly asked her out in Aug–Sept 2015; after she refused he issued three threats (including texts with casket images and a two-day deadline) but never physically harmed her.
- She left El Salvador two days after the final threat and submitted country-condition reports describing violence against women in El Salvador.
- The IJ concluded the threats did not constitute past persecution and that her proposed particular social groups were not socially distinct; the BIA adopted those findings and denied relief.
- On review in the Ninth Circuit, the court applied the substantial-evidence standard to the BIA’s factual findings and limited review to grounds the BIA relied upon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cabezon's threats amount to past persecution | Threats (casket texts, deadline) by an alleged MS-13 member in a context of gang violence were severe enough to be past persecution | Unfulfilled, vague threats without violence are harassment and do not rise to persecution | BIA/IJ findings sustained: threats were frightening but insufficient as past persecution (substantial evidence) |
| Whether the proposed particular social groups are socially distinct in El Salvador | "Salvadoran women who refuse to be girlfriends of MS gang members" and "women who refuse sexual predation" are identifiable and distinct given pervasive violence against women | Record lacks objective evidence that Salvadoran society generally perceives such women as a distinct group; generalized stats are insufficient | BIA decision sustained: petitioner failed to show social distinction; groups not protected for asylum/withholding |
| Adequacy of BIA factfinding/need for remand | BIA failed to perform an evidence-based, case-specific social-distinction analysis and should have addressed newer BIA/A.G. rulings | BIA adopted IJ’s factual findings, reviewed the record, and gave adequate reasons without needing to repeat every piece of evidence | Denied: BIA’s statement of reasons adequate; no remand required |
| Withholding of removal based on same grounds | Same facts support withholding if asylum standard met | Withholding requires same nexus; failure on asylum forecloses withholding | Denied: ineligibility for asylum (social group) means withholding fails as well |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (substantial-evidence standard for agency factual findings)
- Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003) (unfulfilled threats generally harassment, not persecution)
- Lim v. INS, 224 F.3d 929 (9th Cir. 2000) (unfulfilled threats indicate risk of future persecution but do not necessarily constitute past persecution)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (persecution is an "extreme" concept; not every offensive treatment qualifies)
- Prasad v. INS, 47 F.3d 336 (9th Cir. 1995) (threats alone may be insufficient for past persecution absent more)
- Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019) (threats by phone/in person without violence did not compel finding of past persecution)
- Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020) (limits on review to BIA’s expressly relied-upon grounds)
- Diaz-Torres v. Barr, 963 F.3d 976 (9th Cir. 2020) (social-distinction inquiry requires objective corroboration beyond testimony)
- Conde Quevedo v. Barr, 947 F.3d 1238 (9th Cir. 2020) (generalized country-condition evidence insufficient to show society views a group as distinct)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (standard regarding reversal on agency findings)