In Crespin-Valladares v. Holder the U.S. Court of Appeals for the Fourth Circuit held that "family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses" qualified as a "particular social group" under the Immigration and Nationality Act (INA).
In this case Orlando Crespin-Valladares and his wife and children - citizens of El Salvador - petitioned for review of a final order of removal entered by the Board of Immigration Appeals (BIA). Mr. Crespin argued that he and his family deserved asylum because he feared persecution in El Salvador on account of his family ties because of events arising from the murder of Crespin’s cousin in El Salvador. An immigration judge (IJ) accepted this argument and granted the Crespins’ asylum application, but the BIA vacated and ordered their removal.
Here, the U.S. Court of Appeals for the Fourth Circuit articulated at least two reasons for granting the petition for review.
- Relatives of witnesses, testifying against MS-13, who suffer persecution on account of their family ties, constitute a "particular social group"; and
- In holding that Crespin suffered persecution - not merely harassment, the Court reiterated its holding that "threat of death" qualifies as persecution. Because Crespin had received such threats, he is "presumed to have a well-founded fear of future persecution."
The Court remanded the case to the BIA with instructions that it review for "clear error" two factual issues where the BIA had applied the incorrect legal standard and instead "simply substituted its own judgment for that of the IJ":
- Whether Crespin’s persecution was "on account of his family ties; and
- Whether the Salvadoran government is unable or unwilling to control MS-13’s activities.
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