51 F.4th 553
4th Cir.2022Background
- Maria S. Morales, a native of El Salvador, entered the U.S. in 2015 and applied for asylum, withholding of removal, and CAT protection.
- She alleged past sexual and domestic abuse by family/ex-partner and that she witnessed an MS-13 robbery in 2015, cooperated with police, then received gang threats and later left for the U.S.
- An IJ denied relief, citing inconsistencies in her testimony and finding her proposed "particular social groups" not cognizable or lacking nexus; Morales appealed to the BIA.
- The BIA dismissed her appeal, briefly agreeing with the IJ and noting Morales had not meaningfully challenged the CAT ruling on appeal.
- Morales petitioned the Fourth Circuit, which denied asylum and withholding claims and dismissed review of her CAT claim for failure to exhaust administrative remedies.
Issues
| Issue | Morales' Argument | Government's Argument | Held |
|---|---|---|---|
| Cognizability of group: "Salvadoran women who are witnesses to gang criminal activity and targeted because they filed a police report" | This group is discrete: witnesses who report crimes are specifically targeted and thus a particular social group | The group is amorphous and overbroad—terms like "witnesses," "criminal activity," and "targeted" lack definable boundaries and social distinctiveness | Not cognizable: fails "particularity" and "social distinction" requirements |
| Membership in group: "Salvadoran women in a domestic relationship that they are unable to leave" | Morales asserts her past relationships place her within this present-tense group | Government: her relevant relationships ended long ago and record does not show she was unable to leave at time of flight | Denied: substantial-evidence supports conclusion she was not a current member |
| Nexus for family-based claim | Family membership explains assaults; family is a cognizable group | Government: abuses plausibly motivated by non-protected reasons (jealousy, sexual desire); no evidence others were targeted for family status | Denied: family is cognizable but Morales failed to prove persecution "on account of" family membership (no nexus) |
| CAT claim and exhaustion | Morales now argues government acquiescence/impunity for gangs supports CAT relief | Government: Morales did not present that theory to the BIA on appeal; issue was not meaningfully briefed | Dismissed for lack of jurisdiction: Morales failed to exhaust administrative remedies on CAT theory |
Key Cases Cited
- Tairou v. Whitaker, 909 F.3d 702 (4th Cir. 2018) (standard of review and deference to BIA interpretations)
- Nolasco v. Garland, 7 F.4th 180 (4th Cir. 2021) (limits on social-group scope to avoid swallowing refugee definition)
- Herrera-Martinez v. Garland, 22 F.4th 173 (4th Cir. 2022) ("particularity" requires clear in/out boundaries)
- Amaya v. Rosen, 986 F.3d 424 (4th Cir. 2021) (examples of insufficiently particular group definitions)
- Lizama v. Holder, 629 F.3d 440 (4th Cir. 2011) ("criminal history" as an overbroad trait)
- Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (substantial-evidence review and treatment of CAT issues)
- Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015) (family can be a cognizable social group)
- Massis v. Mukasey, 549 F.3d 631 (4th Cir. 2008) (failure to raise issue to BIA bars judicial review)