Montejo-De Cortez v. Garland, 18-2356-ag

Petitioners: Silvia De Los Angeles Montejo-De Cortez and her children (all El Salvadoran citizens) appealed denial of asylum, withholding of removal, and CAT relief after an IJ denied relief and the BIA affirmed.
Facts: Petitioners claimed threats and attempted recruitment/targeting by gangs; Montejo alleged vulnerability as a female head of household with a husband in the U.S.; Emerson alleged resistance to gang recruitment and related threats.
Procedural posture: IJ denied relief for failure to show past persecution and a nexus to a protected ground; BIA affirmed. Petitioners sought review in the Second Circuit.
Legal claims: asylum and withholding require past persecution or well‑founded fear based on a protected ground (race, religion, nationality, particular social group, political opinion); CAT requires likelihood of torture with state acquiescence.
Agency findings: threats were unfulfilled and did not rise to persecution; proposed particular social groups were not cognizable or insufficiently shown; no evidence gangs targeted petitioners because of religion or political opinion; CAT claim not shown and petitioners did not press a procedural error claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether petitioners suffered past persecution	Montejo/Emerson argued gang threats and targeting amounted to past persecution	Government: threats were unfulfilled and constituted harassment, not persecution	Denied — substantial evidence supports finding no past persecution
Whether harm was on account of a particular social group	Montejo: women heads of household (and those unable to report crimes); Emerson: youth resisting recruitment or youth in female‑headed households	Government: proposed groups lacked particularity, were overbroad, or grounded in perceived wealth/vulnerability, not an immutable/defined trait	Denied — groups not cognizable or petitioners failed to prove membership
Whether harm was on account of political opinion or religion	Emerson: opposition to gangs and/or religious status made him a target	Government: no evidence gangs knew of Emerson’s political opinion or targeted for religion (gangs target both religious and nonreligious)	Denied — no nexus shown to political opinion or religion
Whether petitioners are eligible for CAT protection	Petitioners argued risk of torture upon return	Government: petitioners failed to show torture by or with acquiescence of public officials; petitioners did not preserve procedural challenge to agency’s standard	Denied — petitioners did not establish likelihood of torture; procedural challenge forfeited

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (review of IJ and BIA opinions)
Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (standard of review for factual findings)
Lecaj v. Holder, 616 F.3d 111 (2d Cir. 2010) (withholding requires clear probability of persecution)
Mei Fun Wong v. Holder, 633 F.3d 64 (2d Cir. 2011) (definition of persecution and its limits)
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332 (2d Cir. 2006) (persecution must rise above mere harassment)
Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408 (3d Cir. 2006) (unfulfilled threats do not constitute persecution)
Ucelo‑Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (particular social group must show disadvantage beyond visibility to criminals)
Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (nexus requirement for political‑opinion claims)
De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010) (CAT requires more‑likely‑than‑not risk of torture)
Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (definition of torture requires state consent or acquiescence)
Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (issues not raised before the BIA are generally not considered on appeal)