S-E-G-, 24 I&N Dec. 579 (BIA 2008)

Cite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
Matter of S-E-G-, et al., Respondents
Decided July 30, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13
gang and who have rejected or resisted membership in the gang based on their own personal,
moral, and religious opposition to the gang’s values and activities nor the family members
of such Salvadoran youth constitute a “particular social group.”
FOR RESPONDENT: Benjamin Casper, Esquire, West St. Paul, Minnesota
BEFORE: Board Panel: GRANT and MILLER, Board Members; CLARK, Temporary
Board Member.
GRANT, Board Member:
In a decision dated September 6, 2006, an Immigration Judge denied the
respondents’ applications for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). The
respondents have appealed from that decision. The Department of Homeland
Security has not provided a response. The appeal will be dismissed.
A. Facts
At the time of the hearing, the female respondent was 19 years old and her
two younger brothers were 16 years old. The respondents lived in El Salvador,
but they fled their country in 2004 because of violence and threats from a
criminal gang called the “Mara Salvatrucha” or “MS-13.” The MS-13
threatened the youth in the area and controlled the neighborhood in which the
respondents lived. Cite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
In June 2004, the MS-13 stole money from the brothers, harassed and beat
them for refusing to join their gang, and threatened to rape or harm the female
respondent. Neither of the brothers required medical treatment as a result of
the beatings, but armed MS-13 gang members warned the respondents that the
brothers must join the gang or else their bodies might end up in a dumpster or
in the street someday. Fearing retaliation and believing the police would not
help them, the respondents never reported the beatings and threats to the two
police officers in their neighborhood. Eventually, the MS-13 warned the
respondents that they had been given sufficient time to make a decision about
whether to join the gang, and they advised the respondents to take the gang
seriously because the threats were not a game. A few months prior to their
departure from El Salvador, the respondents also learned that the MS-13 shot
and killed a young boy in the neighborhood after he refused to join the gang.
The respondent’s expert witness, a professor at the Central American
University, studied gangs or “maras” in El Salvador since 1996. He testified
that the MS-13, which originated in Los Angeles, California, and spread to
Latin America, is comprised of youth who operate mainly in urban areas and
who often commit serious crimes. The MS-13 is active in the area where the
respondents’ hometown is located. Although the Salvadoran Government
prosecutes and imprisons gang members, gangs have become stronger and
more organized over the past 15 years. The “Manoduro” was a policy of the
former Government to control the gangs, and the current Government has
unveiled a new anti-gang plan called the Master Plan for Security. Some
mainly private programs exist to help Salvadoran youth avoid the gangs, but
the Government programs are weak and focus on gang suppression, rather than
on gang prevention.
In the professor’s opinion, the police are not capable of controlling the
MS-13, which acquires members, in part, through the forcible recruitment of
young males who live within an MS-13 controlled zone. Economic position
is an important factor in determining whether an individual will be recruited
by a gang, since the gang is less likely to recruit young people from middle or
upper middle class areas. The average age for recruitment is 12 years of age,
and gangs retaliate against those who refuse recruitment efforts by threatening
the potential recruit and his family members. An individual who refuses
recruitment by the MS-13 would have a reasonable fear of harm in El Salvador
because it is a small country, there is a constant flow of information and
communication within the country, and it would be very difficult to find a
place where a person could be sure of not being identified by the MS-13.
Because gang members have some influence within the Government and on
certain police officials, they can protect themselves from prosecution.Cite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
B. Immigration Judge’s Decision
The Immigration Judge found that the respondents were removable based
on their own admissions. He also determined that their testimony was credible
but concluded that they had failed to establish either past persecution or a
well-founded fear of future persecution on account of a protected ground. The
Immigration Judge ruled that the beatings and threats against the respondents
were based on the gang’s desire to recruit new members and fill their ranks,
rather than to punish the respondents for their membership in a particular
social group or their political opinion. Finding a lack of the required nexus,
the Immigration Judge denied the respondents’ applications for asylum and
withholding of removal.
The Immigration Judge also determined that the respondents failed to
establish that the Government of El Salvador was unable or unwilling to
control the criminal gangs. He concluded that the background evidence
indicated that the Government had made a number of efforts to control the
gangs and had arrested and prosecuted their members through various gang
suppression programs. The Immigration Judge also denied the respondents’
claims under the Convention Against Torture, concluding that the Government
of El Salvador had not acquiesced in the gang activities, although it is having
difficulty controlling the gangs. See 8 C.F.R. § 1208.18(a)(1) (2008).
C. Arguments on Appeal
On appeal, the respondents argue that they produced adequate evidence to
show that their persecutors were motivated to harm them because of their
membership in the particular social groups of (1) Salvadoran youth who have
been subjected to recruitment efforts by MS-13 and who have rejected or
resisted membership in the gang based on their own personal, moral, and
religious opposition to the gang’s values and activities; and (2) family
members of such Salvadoran youth. The respondents also argue that the gang
members persecuted them on account of their political opinion, i.e., that of
opposition to the gang’s activities.
An applicant for asylum has the burden of establishing that he or she is a
refugee within the meaning of section 101(a)(42) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(42) (2006). To do this, the alien must
demonstrate that he or she has suffered past persecution or has a well-founded
fear of future persecution on account of one of the five enumerated grounds in
section 101(a)(42), which include race, religion, nationality, membership in aCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
particular social group, or political opinion. See INS v. Elias Zacarias,
502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). We first
address whether the respondents have established membership in a particular
social group.
A. Particular Social Group
We have not previously addressed whether either of the putative social
groups described by the respondents—Salavadoran youths who have resisted
gang recruitment, or family members of such Salvadoran youth—constitutes
a “particular social group” cognizable under section 101(a)(42) of the Act.
Likewise, while several Federal circuit courts have issued decisions in related
cases, none has specifically addressed whether those who have resisted
recruitment to such gangs constitute a particular social group. For example,
the United States Court of Appeals for the Eighth Circuit, in whose jurisdiction
this case arises, held that an El Salvadoran who had been shot at by a gang
member, and had family members severely injured or killed by the gang
member, failed to establish that the harm was inflicted by the Government of
El Salvador, or by a person or entity that the Government was unwilling or
unable to control. Menjivar v. Gonzales, 416 F.3d 918, 921-22 (8th Cir.
2005). The court did not, therefore, reach the question whether the alien was
a member of a particular social group. See also Ortiz-Araniba v. Keisler, 505
F.3d 39 (1st Cir. 2007); Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir. 2004).
In other cases, the circuit courts have rejected claims that gang members,
or those who could be identified as such, are members of a particular social
group. Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007); Castellano-Chacon
v. INS, 341 F.3d 533 (6th Cir. 2003), modified on other grounds,
Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006). The Third Circuit, in
the case involving a Honduran applicant, remanded the record for our
consideration of the issue presented in the instant case. Valdiviezo-Galdamez
v. Att’y Gen. of U.S., 502 F.3d 285 (3d Cir. 2007).
In deciding this question, we are guided by our recent decisions
holding that membership in a purported social group requires that the
group have particular and well-defined boundaries, and that it possess a
recognized level of social visibility. See Matter of A-M-E- & J-G-U-,
24 I&N Dec. 69 (BIA 2007), aff’d, Ucelo-Gomez v. Mukasey,
509 F.3d 70 (2d Cir. 2007); Matter of C-A-, 23 I&N Dec. 951 (BIA 2006),
aff’d, Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006), cert.
denied sub nom. Castillo-Arias v. Gonzales, 127 S. Ct. 977 (2007). These
concepts of “particularity” and “social visibility” give greater specificity to the
definition of a social group, which was first determined in Matter of Acosta,
19 I&N Dec. 211, 233 (BIA 1985), to be a group whose members “share aCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
1 The respondents have described an even more particularized subset within the proposed
group, i.e., “young children” between the ages of 9 and 16 years old, of which they have now
aged out.
common, immutable characteristic . . . that members of the group either cannot
change, or should not be required to change because it is fundamental to their
individual identities or consciences.”
The Federal circuit courts have explicitly found these concepts to be
consistent with their own definitions of a particular social group. The relevant
Federal court decisions in this regard include the following, in circuit order:
Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st Cir. 2004) (deferring to our
interpretation of the term “social group”); Ucelo-Gomez v. Mukasey, supra, at
73-74 (affirming our social visibility and particularity requirements); Lukwago
v. Ashcroft; 329 F.3d 157, 170-71 (3d Cir. 2003); Fatin v. INS, 12 F.3d 1233,
1240-42 (3d Cir. 1993) (accepting the Board’s Acosta formulation);
Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th Cir. 2006) (finding that
government employment is not an immutable characteristic); Rreshpja
v. Gonzales, 420 F.3d 551, 555-56 (6th Cir. 2005) (finding that a group of
young, attractive women is too broad to qualify); Tapiero de Orejuela
v. Gonzales, 423 F.3d 666, 672-73 (7th Cir. 2005) (finding that an educated,
landowning class of cattle farmers constitutes a social group); Lwin v. INS, 144
F.3d 505, 512 (7th Cir. 1998); Makatengkeng v. Gonzales, 495 F.3d 876, 881
(8th Cir. 2007) (doubting whether the medical condition of albinism qualifies
as a particular social group); Raffington v. INS, 340 F.3d 720, 723
(8th Cir. 2003) (finding the mentally ill in Jamaica “too large and diverse a
group to qualify”); Arteaga v. Mukasey, supra, at 944-45 (applying the social
visibility and particularity requirements); Niang v. Gonzales, 422 F.3d 1187,
1198-99 (10th Cir. 2005) (deferring to the Acosta standard); Castillo-Arias
v. U.S. Att’y Gen., supra, at 1197-98 (applying the social visibility and
particularity requirements). But see Hassan v. Gonzales, 484 F.3d 513, 518
(8th Cir. 2007) (recognizing Somali females as a particular social group
because of 98% prevalence of female genital mutilation); Mohammed
v. Gonzales, 400 F.3d 785 (9th Cir. 2005).
For the reasons stated below, we find that neither of the social groups
proposed by the respondents satisfies the standards of “particularity” or “social
visibility” that we have recently explicated. We agree with the Immigration
Judge that “youth” is not an entirely immutable characteristic but is, instead,
by its very nature, a temporary state that changes over time. The mutability of
age is reflected in this case by the fact that the male respondents are now
18 years old, and the female respondent is 21. Therefore, the respondents are
no longer considered “children,” as that term is commonly understood.1
saying this, however, we acknowledge that the mutability of age is not withinCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
one’s control, and that if an individual has been persecuted in the past on
account of an age-described particular social group, or faces such persecution
at a time when that individual’s age places him within the group, a claim for
asylum may still be cognizable.
Furthermore, youth who have been targeted for recruitment by, and
resisted, criminal gangs may have a shared past experience, which, by
definition, cannot be changed. However, this does not necessarily mean that
the shared past experience suffices to define a particular social group for
asylum purposes. See Gomez v. INS, 947 F.2d 660, 663-64 (2d Cir. 1991)
(finding that a woman who had been beaten and raped by guerrillas in her
youth was not, for that reason, a member of a particular social group for
asylum purposes); see also Rreshpja v. Gonzales, supra, at 556 (stating that
“a social group may not be circularly defined by the fact that it suffers
persecution”); Castellano-Chacon v. INS, supra, at 548; Matter of C-A-,
supra, at 958. Further, we do not find that in this case the social group can be
defined exclusively by the fact that its members have been subjected to harm
in the past (i.e., forced gang recruitment and any violence associated with that
recruitment), although this may be a relevant factor in considering the group’s
visibility in society, as discussed further in section 2 below. See Matter of
C-A-, supra, at 960.
1. Particularity
We held in Matter of A-M-E- & J-G-U-, supra, at 73-74, that the
respondents’ proposed group of “wealthy” Guatemalans was not so readily
“identifiable”or sufficiently defined to meet the requirements of a particular
social group within the meaning of the refugee definition. See also
Davila-Mejia v. Mukasey, No. 07-2567, 2008 WL 2630085, at *3-4 (8th Cir.
July 7, 2008) (finding that a proposed group of “competing family business
owners” is too “amorphous” under Board and circuit court standards to
constitute a “particular” social group). The essence of the “particularity”
requirement, therefore, is whether the proposed group can accurately be
described in a manner sufficiently distinct that the group would be recognized,
in the society in question, as a discrete class of persons. While the size of the
proposed group may be an important factor in determining whether the group
can be so recognized, the key question is whether the proposed description is
sufficiently “particular,” or is “too amorphous . . . to create a benchmark for
determining group membership.” Davila-Mejia v. Mukasey, supra, at
*3 (citing Matter of A-M-E- & J-G-U-, supra, at 76) . Under these standards,
the respondents’ proposed groups fail the particularity requirement of the
refugee definition.Cite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
2 We note that the respondents testified that gang members attempted to recruit all the young
males in their neighborhood. They do not claim that the MS-13 targeted only their family.
Therefore, we need not address the question whether “family” alone is a social group under
the circumstances of this case.
The male respondents attempt to limit or define their proposed group by
claiming that it is comprised of male children who lack stable families and
meaningful adult protection, who are from middle and low income classes,
who live in the territories controlled by the MS-13 gang, and who refuse
recruitment. However, these characteristics remain amorphous because
“people’s ideas of what those terms mean can vary.” Davila-Mejia
v. Mukasey, supra, at *3. Moreover, there is no evidence in the record to show
that gang members limit recruitment efforts to male children who fit the above
description, or do so in order to punish them for these characteristics, although
these factors perhaps make the potential recruit an easier and more desirable
The female respondent contends that she belongs to a social group that
includes “family members” of Salvadoran youth who have been subjected to
recruitment efforts by MS-13 and who have rejected or resisted membership
in the gang. The proposed group of “family members,” which could include
fathers, mothers, siblings, uncles, aunts, nieces, nephews, grandparents,
cousins, and others, is also too amorphous a category.2
Our conclusion is supported by the holdings of the circuit courts in
analogous cases. The Second Circuit in Ucelo-Gomez v. Mukasey, supra,
affirmed our findings that “wealth” and “affluence” are too subjective to serve
as boundaries of a cognizable social group. As the court stated, “If ‘wealth’
defined the boundaries of a particular social group, a determination about
whether any petitioner fit into the group (or might be perceived as a member
of the group) would necessitate a sociological analysis as to how persons with
various assets would have been viewed by others in their country. . . .
Moreover, because money attracts thieves . . . and more money attracts more
and better thieves, it would be impractical for [Immigration Judges] to
distinguish between petitioners who are targeted or held to ransom because of
their class status or merely because that’s where the money is.” Id. at 73.
For similar reasons, the purported social groups in this case lack
particularity. They make up a potentially large and diffuse segment of society,
and the motivation of gang members in recruiting and targeting young males
could arise from motivations quite apart from any perception that the males in
question were members of a class. Similarly, in Castillo-Arias v. United States
Attorney General, supra, at 1198, the Eleventh Circuit affirmed our finding
that noncriminal informants working against a Colombian drug cartel did notCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
3 In Matter of C-A-, supra, at 956-57, we also noted that we do not generally require a
“voluntary associational relationship,” “cohesiveness,” or “homogeneity among group
constitute a particular social group, in part because the proposed group was
potentially too numerous or inchoate.
The Eighth Circuit’s decision in Hassan v. Gonzales, supra, is
distinguishable because, while recognizing a social group that in other contexts
might be considered broad and diffuse, and certainly is large, the defining
characteristics of the group—being female and subject to FGM—are
sufficiently distinct in the context of Somali culture to meet the requirement
of particularity. This case is far more analogous to the Ninth Circuit’s decision
in Ochoa v. Gonzales, 406 F.3d 1166 (9th Cir. 2005), which rejected the claim
that Colombian business owners who refused demands from narcotics
traffickers are a particular social group. Like the purported social group in
Ochoa, the groups asserted here are too broad to qualify because “[t]here is no
unifying relationship or characteristic to narrow this diverse and disconnected
group.” Id. at 1171.
2. Social Visibility
We recently reaffirmed the importance of social visibility as a factor in the
particular social group determination in Matter of A-M-E- & J-G-U-, supra
(holding that “affluent Guatemalans” did not have sufficient social visibility
to be perceived as a group by society), and Matter of C-A-, supra (holding that
“noncriminal informants working against the Cali drug cartel” in Colombia
were not a particular social group and addressing the importance of the social
visibility of the claimed social group).3
In reaffirming the requirement that
the shared characteristic of the group should generally be recognizable by
others in the community, we relied, in part, on the Second Circuit’s view that
“‘the attributes of a particular social group must be recognizable and
discrete.’” Matter of C-A-, supra, at 956 (quoting Gomez v. INS, supra, at
664). In addition, we referred to the 2002 guidelines of the United Nations
High Commissioner for Refugees, which endorse an approach in which an
important factor is whether the members of the group are “‘perceived as a
group by society.’” Matter of C-A-, supra, at 956 (quoting UNHCR,
Guidelines on International Protection: “Membership of a particular social
group” within the context of Article 1A(2) of the 1951 Convention and/or its
1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02,
¶ 11 (May 7, 2002)) .
The question whether a proposed group has a shared characteristic with the
requisite “social visibility” must be considered in the context of the countryCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
4 We also consider and take administrative notice of recent reports issued by the State
Department, including the 2007 country reports on human rights practices in El Salvador.
See Bureau of Democracy, Human Right, and Labor, U.S. Dep’t of State, El Salvador
Country Reports on Human Rights Practices – 2007 (Mar. 11, 2008), available at
http://www.state.gov/g/drl/rls/hrrpt/2007/100639.htm; see also Francois v. INS, 283 F.3d
926, 933 (8th Cir. 2002); Wojcik v. INS, 951 F.2d 172, 173 (8th Cir. 1991).
of concern and the persecution feared. Matter of A-M-E- & J-G-U-, supra, at
74. The respondents in this case are victims of harassment, beatings, and
threats from a criminal gang in El Salvador. There is little in the background
evidence of record to indicate that Salvadoran youth who are recruited by
gangs but refuse to join (or their family members) would be “perceived as a
group” by society, or that these individuals suffer from a higher incidence of
crime than the rest of the population.
The respondents assert that they have a specific reason (i.e., their refusal
to join the gang) to fear that the MS-13 would subject them to more violence
than the general population. We do not doubt, as the respondents’ expert
witness testified, that gangs such as the MS-13 retaliate against those who
refuse to join their ranks. However, such gangs have directed harm against
anyone and everyone perceived to have interfered with, or who might present
a threat to, their criminal enterprises and territorial power. The respondents
are therefore not in a substantially different situation from anyone who has
crossed the gang, or who is perceived to be a threat to the gang’s interests. See
Matter of C-A-, supra, at 960.
The Department of State 2004 country reports on human rights practices
in El Salvador do not suggest that victims of gang recruitment are exposed to
more violence or human rights violations than other segments of society.4
Committees on Foreign Relations and International Relations, 109th Cong.,
1st Sess., Country Reports on Human Rights Practices for 2004 2353
(Joint Comm. Print 2005) (“2004 Country Reports”), available at
http://www.state.gov/g/drl/rls/hrrpt/2004/41760.htm. Rather, gang violence
and crime in El Salvador appear to be widespread, and the risk of harm is not
limited to young males who have resisted recruitment, or their family
members, but affects all segments of the population. Indeed, an article
submitted by the respondent indicates that MS-13 gang members in Central
America have resorted to random violence against the general population as
a means to protest against the crackdown on gang activities in the country. See
Ana Arana, How the Street Gangs Took Central America, Foreign Affairs,
vol. 84, number 3, May/June 2005, at 98. Notably, neither the 2004 Country
Reports, nor more recent reports, mention forced recruitment by gang members
or persecution against individuals who resist the gang, and the respondentsCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
5 The respondents contend that the Immigration Judge failed to evaluate their claim of
persecution on account of political opinion. We disagree. The Immigration Judge addressed
the respondents’ claim and determined that they had not established the requisite nexus to
political opinion. Inasmuch as the facts of the case are not in dispute, we need not remand
for further fact-finding. See 8 C.F.R. § 1003.1(d)(3)(iv) (2008). The record before us is
adequate to allow us to perform de novo review of the legal issues presented, specifically,
whether the respondents established that they were persecuted “on account of” a protected
ground. See 8 C.F.R. § 1003.1(d)(3)(ii); Board of Immigration Appeals: Procedural Reforms
To Improve Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002)
(Supplementary Information); see also Li Fang Lin v. Mukasey, 517 F.3d 685, 692 n.10 (4th
Cir. 2008); Rotinsulu v. Mukasey, 515 F.3d 68, 73 (1st Cir. 2008) (finding that 8 C.F.R.
§ 1003.1(d)(3)(iv) was not intended to restrict the Board’s powers of review); Belortaja
v. Gonzales, 484 F.3d 619, 624 (2d Cir. 2007); Matter of V-K-, 24 I&N Dec. 500
(BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493, 496-97 (BIA 2008).
have not submitted evidence that persuades us that gangs commit violent acts
for reasons other than gaining more influence and power, and recruiting young
males to fill their ranks.
While the respondents present sympathetic personal circumstances, victims
of gang violence come from all segments of society, and it is difficult to
conclude that any “group,” as actually perceived by the criminal gangs, is
much narrower than the general population of El Salvador. The respondents
have provided no persuasive evidence, and we have no reason to believe, that
the general societal perception would be otherwise. Accordingly, we conclude
that the proposed group, which consists of young Salvadorans who have been
subject to recruitment efforts by criminal gangs, but who have refused to join
for personal, religious, or moral reasons, fails the “social visibility” test and
does not qualify as a particular social group. The family members of such
Salvadoran youth also do not constitute a particular social group.
B. Political Opinion
The respondents argue on appeal that the MS-13 attempted to forcibly
recruit the male respondents into their gang, and that the gang persecuted the
respondents on account of their anti-gang political opinion.5
Given the
circumstances of this case, we find that the respondents’ argument is
foreclosed by INS v. Elias-Zacarias, supra, in which the Court held that a
guerrilla organization’s attempt to conscript a Guatemalan native into its
military forces did not necessarily constitute “persecution on account of
political opinion.” In that case, the Guatemalan native failed to show either a
political motive in resisting recruitment by guerrillas or a well-founded fear of
guerrillas persecuting him because of that political opinion. Rather, heCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
6 In addition, while we acknowledge that the male respondents were physically mistreated
and all of the respondents were threatened, the record does not establish that the incidents
described by the respondents rise to the level of persecution. See Zakirov v. Ashcroft, 384
F.3d 541, 546 (8th Cir. 2004).
testified that he refused to join the guerrillas because he was afraid that the
Guatemalan Government would retaliate against him and his family.
We conclude that the Court’s analysis in Elias-Zacarias is applicable to
this case. The respondents claim to fear retaliation by the MS-13 for their
resistance to recruitment efforts, yet they have failed to show a political motive
in resisting gang recruitment or a well-founded fear of future persecution on
account of their political opinion. Indeed, there is no evidence in the record
that the respondents were politically active or made any anti-gang political
The respondents did not establish what political opinion, if any, they held,
and they have provided no evidence, direct or circumstantial, that the MS-13
gang in El Salvador imputed, or would impute to them, an anti-gang political
opinion. Nor have they established that the gang persecuted or would
persecute them on the basis of such opinion. There is no indication that the
MS-13 gang members who pursued the respondents had any motives other
than increasing the size and influence of their gang. We therefore find that the
respondents failed to demonstrate that they were persecuted or have a
well-founded fear of persecution based on actual or imputed political opinion.
See also Zacarias-Velasquez v. Mukasey, 509 F.3d 429 (8th Cir. 2007)
(finding that even if guerrillas attempted to recruit the respondent, he did not
allege that his refusal to join them was an expression of political opinion);
Bartolo-Diego v. Gonzales, 490 F.3d 1024 (8th Cir. 2007) (holding that
guerrilla attempts to forcibly compel a person to join them, absent additional
evidence that the conscription was motivated by that person’s political opinion,
are insufficient to compel a finding of persecution on account of political
belief); Matter of R-O-, 20 I&N Dec. 455 (BIA 1992).
For the reasons discussed above, we agree with the Immigration Judge’s
finding that the motivation of the gang members was not to punish the
respondents based on their social group, political opinion, or other
protected characteristic, and that the respondents have not shown the “nexus”
required by the definition of a refugee.6
See section 101(a)(42)(A) of the Act;
INS v. Elias Zacarias, supra. Inasmuch as the respondents have failed to
satisfy the burden of proof required for asylum, it follows that they have also
failed to satisfy the higher standard required for withholding of removal. See
INS v. Stevic, 467 U.S. 407 (1984). We need not address the question whether
the respondents established that the Government of El Salvador was unable orCite as 24 I&N Dec. 579 (BIA 2008) Interim Decision #3617
unwilling to control the MS-13 criminal gang because the respondents’ failure
to demonstrate the requisite nexus is dispositive.
We concur with the Immigration Judge’s finding that the respondents failed
to demonstrate that either Salvadoran youth who refused recruitment into the
MS-13 criminal gang or their family members constitute a particular social
group. We further agree that the respondents failed to demonstrate that they
were persecuted or fear persecution on account of their political opinion and
that they therefore did not establish eligibility for asylum and withholding of
removal. In addition, the respondents do not raise any arguments on appeal
challenging the Immigration Judge’s denial of protection under the Convention
Against Torture, and we see no reason to disturb the Immigration Judge’s
decision on this basis. Accordingly, we will dismiss the respondents’ appeal.
ORDER: The appeal is dismissed.