CA4 Rejects BIA's "Fruition" Test: Sorto-Guzman v. Garland

Sorto-Guzman v. Garland

"Petitioners Zoila Sorto-Guzman and Axel Rivas-Sorto, a twenty-three-year-old mother and her seven-year-old son, respectively, seek asylum in the United States after fleeing El Salvador following death threats and violence at the hands of the Mara 18 gang due to Sorto-Guzman’s Catholic religion. An immigration judge (IJ) found that Sorto-Guzman’s testimony was credible and that one of the death threats she received had a nexus to her statutorily protected right to religion. However, the IJ then concluded that the death threat did not rise to the level of past persecution because the threat never came to fruition. It thus denied her application for asylum and the Board of Immigration Appeals (BIA) affirmed that decision. We have repeatedly said, “the ‘threat of death’ qualifies as persecution.” Crespin-Valladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011) (quoting Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)). The IJ, and the BIA in adopting the opinion, erred in ignoring our clear precedent and instead implemented a higher burden than we require. We refuse to follow such a “fruition” test and instead apply our longstanding precedent. We hold Sorto-Guzman was entitled to the presumption that she has a well-founded fear of persecution. Thus, we grant the petition for review and remand to the BIA to determine whether the Department of Homeland Security (DHS) has carried its burden to rebut the presumption that Sorto-Guzman has a well-founded fear of persecution. ... In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador. She is thereby entitled to the presumption of a well-founded fear of future persecution."

[Hats off to Jeremy McKinney!]