The BIA narrowly reviewed circuit law regarding witness PSGs and ultimately found that to satisfy both the social distinction and particularity requirements of the PSG analysis under M-E-V-G-, an applicant must satisfy two criteria: (1) they must formally or publicly cooperate with prosecution against their persecutors in their country of origin and (2) that country must recognize the members of the proposed PSG through legislation or other form of witness protection. The BIA likewise found that confidential informants lack social distinction due to their anonymity and their similarity in position to anyone who is merely “perceived to be a threat” to a cartel’s interests. In its analysis in H-L-S-A-, the BIA stated that victims of, or witnesses to crime, without more, cannot satisfy the particularity or social distinction requirements. A PSG must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of M-E-V-G-, 26 I&N Dec. ![]() BIA Analysis and HoldingĪn asylum or withholding of removal applicant may be eligible for relief under the Immigration and Nationality Act if he or she demonstrates a well-founded fear of persecution on account of his or her membership in a PSG. The immigration judge denied the application for withholding of removal and found that the proposed PSG “prosecutorial witnesses” was not cognizable under the law. He expressed a fear that the gang members in the United States would inform gang members in El Salvador of the applicant’s cooperation and that his life would be in danger if he returned. H-L-S-A had a prior removal order, he was placed in withholding-only proceedings. ![]() As a result, the gang members were convicted of and sentenced for various crimes. He was then transferred back to the second facility, where he later met with federal prosecutors and agents to discuss his knowledge of gang activity and to identify suspected gang members from a photo line-up. H-L-S-A- was transferred back for his hearing, detainees called him a “rat” and threatened to kill him. The applicant informed authorities, was placed in protective custody, and then transferred to another facility. The gang member at one point revealed to the applicant that he had a weapon. The cellmate warned him that if he complained to guards, he would be placed in protective custody, marking him as a snitch. While in detention, he began to be extorted and threatened by his cellmate, an MS-13 gang member. ![]() Ten years after his reentry, he was arrested. He fled El Salvador and reentered the United States a month later. Upon returning to El Salvador, he learned that a family member was murdered for failure to pay extortion to gang members and was warned that MS-13 was looking for him. H-L-S-A-, the applicant, a Salvadoran national, was removed from the United States pursuant to an in absentia removal order. The Board of Immigration Appeals, or BIA, recently issued a decision where it concluded that individuals who cooperate with law enforcement may constitute a valid particular social group, or PSG, but only if their cooperation is public in nature and the society in question recognizes and provides protection for such cooperation.
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