Wilfredo Reyes v. Loretta E. Lynch, 2016 U.S. App. LEXIS 21408

Wilfredo Garay Reyes, a Salvadoran who joined Mara 18 at 17, left the gang after <1 year following threats and an attack; he later entered the U.S. without inspection and conceded removability.
Garay applied for withholding of removal (8 U.S.C. § 1231(b)(3)) and CAT protection, claiming persecution/torture if returned as a former gang member and as a deportee.
The IJ found Garay credible, pretermitted asylum (untimely), denied withholding (group not cognizable) and denied CAT relief (insufficient evidence of torture). IJ relied in part on precedent barring violent-gang membership as a particular social group basis.
The BIA issued a precedential decision (Matter of W–G–R–) clarifying the particular social group test: immutability, particularity, and social distinction (renamed from social visibility); it held Garay’s proposed groups (former Mara 18 members who renounced; deportees from the U.S.) not cognizable and affirmed the CAT denial on review for clear error.
The Ninth Circuit affirmed the BIA’s particularity and social-distinction framework and upheld the BIA’s rejection of both proposed particular social groups under that framework.
The Ninth Circuit vacated and remanded the CAT denial because the BIA and IJ erred (the IJ appeared to treat killings as not torture and the BIA failed to correct that legal error or carry out required factfinding regarding government acquiescence).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA’s particularity and social-distinction rules for "particular social group" are lawful/deferable	Garay: requirements are unreasonable, bar meritorious claims	Government/BIA: rules are reasonable refinements entitled to Chevron deference	Court: BIA’s articulation is reasonable and entitled to Chevron deference (affirmed)
Whether "former members of Mara 18 who renounced" is a cognizable particular social group	Garay: former members who renounced face persecution on account of that status	BIA: group is amorphous, overbroad, lacks particularity and social distinction	Court: substantial evidence supports BIA; group not cognizable (affirmed)
Whether "deportees from the U.S. to El Salvador" is a cognizable particular social group	Garay: deportees are targeted and thus form a distinct social group	BIA: group is too broad/diverse to meet particularity	Court: BIA reasonably rejected this group as not particular (affirmed)
Whether denial of CAT relief was lawful and supported by record	Garay: IJ and BIA misapplied law; killings can be torture and record supports more-likely-than-not torture risk and possible government acquiescence	Government: substantial evidence supports denial; BIA could review de novo because petitioner sought plenary review	Court: BIA committed legal error (IJ seemed to treat killings as not torture) and improperly performed factfinding; CAT denial vacated and remanded for proper legal standard and factfinding

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S. 1984) (agency construction of ambiguous statute entitled to deference)
National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (U.S. 2005) (agency interpretations can receive Chevron deference even if they differ from prior judicial readings)
INS v. Aguirre-Aguirre, 526 U.S. 415 (U.S. 1999) (BIA should be afforded deference in defining refugee-related terms)
INS v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (nexus requirement turns on persecutor motive)
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (examined social visibility and particularity; guided analysis of group recognition)
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (addressing gang membership claims and particular social group issues)
Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (killings and beatings can constitute torture under CAT)
Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (CAT relief does not require a nexus to a protected ground)