## Facts

- H-L-S-A-, a native and citizen of El Salvador, entered the United States without admission in 2005 and was ordered removed in absentia in 2006; he was removed to El Salvador in 2009.
- After his removal, he learned MS-13 had murdered a relative for refusing extortion and was told MS-13 was looking for him; he reentered the United States without authorization in August 2009.
- In 2019 he was arrested for illegal reentry and detained in a federal facility in Maryland.
- While detained, MS-13 detainees demanded money for “protection” and threatened him; he reported extortion and a weapon to the warden, requested protective custody, and was transferred.
- When returned to the facility for a hearing, gang members shouted at him and called him a “rat.”
- He met with federal prosecutors and FBI agents and identified MS-13 members from photographs; those gang members were later convicted.
- Because his prior removal order was reinstated, he was in withholding-only proceedings and sought statutory withholding under INA § 241(b)(3)(A) and protection under CAT.
- He claimed fear in El Salvador based on his cooperation with U.S. authorities against MS-13; the Immigration Judge denied withholding and CAT, finding his proposed particular social group (PSG) (“prosecutorial witnesses”) not cognizable.

## Issues

1. Whether the proposed PSG of “prosecutorial witnesses” (or persons cooperating with law enforcement) satisfied immutability, particularity, and social distinction in El Salvador for purposes of statutory withholding of removal.
2. If a cognizable PSG existed, whether the applicant showed a clear probability of persecution on account of membership in that PSG.
3. Whether the applicant proved it was more likely than not he would be tortured in El Salvador by, or with the consent or acquiescence (including willful blindness) of, a public official, warranting CAT protection.

## Decision

- The Board of Immigration Appeals dismissed the appeal and affirmed the denial of statutory withholding and CAT protection.
- The Board held the proposed PSG was not cognizable because it lacked particularity and social distinction on this record.
- The Board concluded the applicant did not meet the burden for CAT withholding or deferral because the record did not establish a likelihood of torture with government consent or acquiescence.

## Legal Principles

- A PSG must be defined by an immutable characteristic, be particular (clear boundaries), and be socially distinct in the relevant society.
- Individuals who cooperate with law enforcement may qualify as a PSG only when the cooperation is public in nature (especially public court testimony) and record evidence shows the relevant society recognizes and provides protection for such cooperation.
- “Victims of, or witnesses to, crime,” without additional characteristics establishing particularity and social distinction, do not constitute a cognizable PSG.
- Particularity requires limits tied to a specific society and context; an open-ended category such as “prosecutorial witnesses” without jurisdictional or contextual bounds may fail particularity.
- Social distinction requires country-specific evidence that society in the country of removal perceives the group as distinct; nonpublic cooperation may not satisfy this requirement absent evidence of societal recognition.
- CAT relief requires proof that torture is more likely than not and would occur with the consent or acquiescence (including willful blindness) of a public official or other person acting in an official capacity.

## Conclusion

The BIA held that the applicant’s nonpublic cooperation with U.S. authorities against MS-13 did not place him in a cognizable PSG in El Salvador because the proposed group lacked definable boundaries and was not shown to be socially distinct there; it also affirmed denial of CAT protection for failure to show a likelihood of torture with governmental consent or acquiescence.


Matter of H-L-S-A-, 28 I. & N. Dec. 228 (B.I.A. 2021)