The Third Circuit has determined that individuals who publicly assist law enforcement against major Salvadoran gangs comprise a cognizable social group for the purpose of asylum and withholding of removal. The group is bound by an immutable characteristic because the members have the shared experience of assisting law enforcement, which is based on past conduct that cannot be undone. “In our analysis, it is indistinguishable whether someone testifies in court or publicly provides out of court assistance to law enforcement. In both circumstances, that person will have been visible to the public and is likely be targeted because of his cooperation.” “Like a group of witnesses who have testified in court against violent gangs, a group of witnesses who have publicly provided assistance to law enforcement against major Salvadoran gangs ‘has definable boundaries and is equipped with a benchmark for determining who falls within it’ sufficient to satisfy the particularity requirement.” “Providing assistance to law enforcement in public, like testifying in court, ‘lends itself to societal recognition,’ since ‘all are readily aware of the group and its members, not just those that are being provided information,” and thus, the group also has social distinction.
The court also noted that “asylum and withholding of removal under the INA may be granted on the basis of imputed, not just actual, membership in a particular social group.” In the instant case, the petitioner was seen talking to the police, and even though he did not actually provide information against gang members, the gang member assumed he had.
The court also found that the harm the petitioner suffered (which included threats made at gunpoint) constituted torture, and that the undisputed evidence showed that the gang members were still looking for the petitioner. Even though the Salvadoran government had enacted a witness protection program, it was limited to those who testified in court, and was underfunded and ineffective. “It is clear that this program is not sufficient to provide the protection to Guzman required to satisfy the CAT.”
The full text of Guzman Orellana v. Attorney General can be found here: