989 F.3d 190
2d Cir.2021Background:
- Petitioner Douglas Adrian Zelaya-Moreno, a Salvadoran from Pasaquina, refused MS-13 gang recruitment and told gang members that "gangs are bad for my town and country." He was beaten twice (one beating by gang members in presence of police resulted in a broken arm) and later received death threats; he left El Salvador in April 2014.
- At removal proceedings Zelaya applied for asylum, withholding of removal, and CAT relief; the IJ found him credible and that he suffered past persecution but rejected asylum and CAT for lack of nexus and insufficient evidence of future torture.
- The BIA disagreed with the IJ on the political-opinion issue, holding that anti-gang views are not a political opinion because gangs are criminal rather than political organizations; the BIA also denied CAT relief, finding no evidence police would acquiesce to future torture.
- Zelaya petitioned the Second Circuit, which reviewed legal questions de novo and factual findings for substantial evidence; the court assumed Zelaya credible for purposes of review.
- The Second Circuit majority affirmed the BIA: (1) Zelaya’s generalized statement that "gangs are bad" did not amount to a protected political opinion; (2) substantial evidence supported the BIA’s finding that Zelaya failed to show it was more likely than not he would be tortured if returned to El Salvador.
- Judge Pooler dissented, arguing Zelaya’s public refusals in presence of police and the broken-arm beating supported finding a political opinion and a likelihood of future torture given police acquiescence and country conditions.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zelaya's anti-gang statements constitute a "political opinion" for asylum nexus | Zelaya: his expressed opposition to gangs ("gangs are bad for my town and country") was a political opinion and a central reason for persecution | Gov: opposition to gangs is a general anti-crime stance toward criminal actors, not a political belief; refusal to join is not political per Matter of E-A-G- | Held: Anti-gang statement was not a political opinion as record lacked evidence gangs had political ideology or that Zelaya’s stance transcended personal/self-protective opposition; BIA decision affirmed |
| Whether Zelaya established it is more likely than not he would be tortured if returned (CAT) | Zelaya: prior beatings (broken arm), police involvement, threats when he left home, and country conditions show likely future torture or police acquiescence | Gov: substantial evidence shows no ongoing targeting (months elapsed without further attacks), family remained unharmed, no proof the same officers or police would acquiesce to future torture; generalized country-condition allegations insufficient | Held: Substantial evidence supports BIA that Zelaya failed to show likelihood of future torture or governmental acquiescence; CAT claim denied |
Key Cases Cited:
- Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) (political-opinion analysis must account for political context and nongovernmental actors can have political valence)
- Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (persecutor's motive must arise from applicant's political belief; distinguish personal grievances)
- Delgado v. Mukasey, 508 F.3d 702 (2d Cir. 2007) (opposition to insurgent groups can be political; imputed opinions recognized)
- Hernandez-Chacon v. Barr, 948 F.3d 94 (2d Cir. 2020) (political dimension can arise when resistance transcends mere self-protection)
- Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) (applicant must specify the political opinion relied upon)
- Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) (general aversion to gangs does not necessarily constitute a political opinion)
- Meng v. Holder, 770 F.3d 1071 (2d Cir. 2014) (past harm does not create presumption of future torture; totality of evidence relevant)
- De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010) (definition of torture requires public-official instigation or acquiescence)
- Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (opposition to an ideologically-driven insurgent group may be political)
- Elias-Zacarias v. INS, 502 U.S. 478 (1992) (asylum requires persecution on account of political opinion)