Unreported / Non-Citable
Background
Gabi Morelia Santos-Calderon and her minor son D.J.P.-S., natives and citizens of Honduras, petitioned for review of a Board of Immigration Appeals (BIA) decision dismissing their appeal from an immigration judge’s (IJ) order denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Santos-Calderon claimed she witnessed a murder in Honduras and was subsequently threatened by the perpetrator.
She argued she belonged to two particular social groups (PSGs): "individuals who witness murders in Honduras" and "Hondurans who witness criminal activity." The BIA concluded these groups were not cognizable and denied relief. The Ninth Circuit reviewed the BIA’s decision, applying de novo review to legal conclusions and substantial evidence review to factual findings, including particularity and social distinction of the proposed PSGs.
Santos-Calderon said a man threatened her after she witnessed criminal activity in Honduras. The court treated the persecutor’s private motive as different from the immigration-law requirement that Honduran society recognize the proposed witness groups as distinct. She had not testified, reported the crime, or otherwise become publicly identifiable as a witness.
For Convention Against Torture protection, the panel considered both the individualized record and the country-conditions materials. Evidence of widespread crime and corruption could not by itself establish that this petitioner personally faced torture more likely than not. The memorandum denied the pending stay motion along with the petition.
The Court’s Holding
The Ninth Circuit denied the petition for review. First, the court held that substantial evidence supported the agency’s determination that Santos-Calderon’s proposed PSGs—individuals who witness murders and Hondurans who witness criminal activity—are not socially distinct in Honduran society. The court emphasized that the persecutor’s awareness of her status as a witness demonstrates only individual retaliation, not persecution on account of membership in a socially distinct group. Because she did not testify, report the crime, or engage in activity making her recognizable to the community, the record did not compel a finding of social distinction.
The lack of a cognizable PSG was dispositive of both asylum and withholding claims. Second, the court held that substantial evidence supported the denial of CAT relief. The agency permissibly concluded that general country conditions evidence of crime and corruption in Honduras did not establish a particularized, ongoing risk of future torture specific to Santos-Calderon. The court also rejected the argument that the agency failed to consider the evidence, noting the IJ explicitly stated he considered the record as a whole and the agency need not discuss every piece of evidence individually.
Key Takeaways
- Witnessing a crime and being threatened by the perpetrator constitutes individual retaliation, not persecution on account of a particular social group, absent evidence that society recognizes such witnesses as a distinct group.
- Proposed PSGs based solely on the act of witnessing a crime ("individuals who witness murders" or "Hondurans who witness criminal activity") are not socially distinct unless the petitioner took public steps—such as testifying or reporting to police—that made her status recognizable to the broader community.
- Generalized country conditions evidence of crime and corruption is insufficient to establish a particularized risk of torture for CAT relief; the petitioner must show an individualized, ongoing threat.
- The agency satisfies its obligation to consider evidence by stating it reviewed the record as a whole; it is not required to individually address every document or affidavit.
- Because the PSG determination was dispositive, the court did not reach the issues of past persecution or government inability to control the persecutor.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit’s strict requirements for establishing social distinction in particular social group claims. It clarifies that a persecutor’s private knowledge of a witness’s presence is insufficient to render a group socially distinct; rather, the group must be recognized by society at large.
The decision also reaffirms that CAT claims require particularized risk beyond general country conditions, and that agencies need not mechanically catalog every piece of evidence so long as the record reflects a holistic review. The ruling aligns with precedent such as Conde Quevedo, Cordoba, and Tzompantzi-Salazar, and offers practical guidance for similar fact patterns involving witness-based PSGs in the Ninth Circuit.