Fourth Circuit Constrains Witness-Based Particular Social Groups

Gavel in Court


On October 24, 2022, the Fourth Circuit held that witnesses to criminal activity who then file police reports cannot use that as a basis to claim asylum. The decision provides insight for asylum seekers and their advocates to better construct witness-based particular social groups (PSGs).


The petitioner, a Salvadorean woman, asserted that she was a member of the particular social group “Salvadorean women who are witnesses to gang criminal activity and targeted because they filed a police report.” The Fourth Circuit rejected that construction in Morales v. Garland because it found that the group was neither particular nor socially distinct. Though the petitioner argued that the group’s many limiting features made it particular, simply stringing together a “collection of traits…does not sharpen the boundary lines.”

For example, the court explained that a “witness” could mean someone who simply saw the commission of a crime, or it could be a person who goes to court and testifies, all while having a hundred definitions in between. Likewise, the term “‘[c]riminal activity’ could span from offenses ranging in severity from petty theft to first-degree murder.” Traits that “ultimately bleed[] into those of the general Salvadorean population,” the court held, are not particular.

The court also found that the petitioner did not show that she was a member of an A-R-C-G-based PSG, that she did not establish nexus to family-based PSG, and that the court lacked jurisdiction to address her claim under the Convention Against Torture because she did not address that issue before the Board of Immigration Appeals.

While the Morales decision is unfavorable to asylum seekers, it should not come as a surprise. The Fourth Circuit already held earlier this year that groups composed of “prosecution witnesses” is not particular, Herrera-Martinez v. Garland, 22 F.4th 173, 181 (4th Cir. 2022), and it has long-found that “criminal history” alone is not a particular trait. Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011)).

Why It Matters:

There is a silver-lining in the Morales decision in that it provides insight for asylum seekers and their advocates to better construct witness-based particular social groups. For example, while “prosecution witnesses” without limiting language lacks particularity because it is too amorphous, Judge Floyd explained in Zelaya v. Holder his belief that people who publicly testify against gangs would likely meet that particularity requirement. 668 F.3d 159, 169 (4th Cir. 2012) (Floyd, J. concurring). The BIA echoed a similar opinion in Matter of H-L-S-A-, where it held that public cooperation with law enforcement, such as by testifying in court, can form the basis of a cognizable PSG where the society in question recognizes and provides protection for cooperation. Morales should therefore not be read to foreclose all witness-based PSGs, but rather, only those that bleed into Salvadorean society in general.

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