Crespin-Valladares v. Holder: "family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses" qualifies as a "particular social group".

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.

Lizama v. Holder: "Young, Americanized, well-off, Salvadoran male deportees with criminal histories who oppose gangs" not a social group for Asylum and Withholding

In Lizama v. Holder the petitioner, Carlos Lizama, sought judicial review of an order of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

Carlos Lizama, a native and citizen of El Salvador, entered the United States in 1992 and was placed in removal proceedings in 2006.  As a defense to removal he petitioned for asylum, withholding of removal, and protection under CAT. The Immigration Judge denied Mr. Lizama's application for relief. He appealed the Immigration Judge's decision to the BIA, which affirmed.  

The U.S. Court of Appeals for the Fourth Circuit dismissed Mr. Lizama's claim for asylum for lack of jurisdiction in that he had not applied for asylum within one year of entry (8 U.S.C. 1158(a)(2)(B)), and reasoned that recently accumulated wealth did not constitute "changed" or "extraordinary" circumstances which excused his failure to file a timely asylum application. The Court also denied Mr. Lizama's petition for review of his withholding of removal under 8 U.S.C. section 1231(b)(3) holding that being a "young, Americanized, well-off Salvadoran male deportee with a criminal history who opposes gangs" did not qualify him for membership in a social group possessing the common, immutable characteristics and recognized level of visibility and particularity required by BIA precedent.  Finally, the court agreed with the Immigration Judge who held that Mr. Lizama did not qualify for CAT protection because he had failed to establish he would "more likely than not" be tortured if removed to El Salvador.